Thomas v. Bowen

• Decision Date: 18 July 1896
• Citation: 45 P. 768,29 Or. 258
• Parties: THOMAS v. BOWEN et al.
• Court: Oregon Supreme Court

45 P. 768

29 Or. 258

THOMAS v. BOWEN et al.

Supreme Court of Oregon

July 18, 1896

Appeal from circuit court, Baker county; Robert Eakin, Judge.

Action by Cora Thomas against I.B. Bowen and another for libel. From a judgment granting a nonsuit, plaintiff appeals. Reversed.

This is an action to recover damages for the publication of an alleged libel. The plaintiff alleges, in substance: That the defendants are the owners and publishers of the Morning Democrat, a daily newspaper published at Baker City. That they, on October 5, 1895, wrongfully published in said newspaper the following words concerning the plaintiff, to wit:

"Charged with Larceny.

"Mrs. Flora Thomas, Colored, in the Toils.

"The arrest of Mrs. Flora Thomas, a colored domestic in the employ of Fannie Hall, the brothel keeper, took place yesterday by Constable Snow, on a warrant charging her with larceny from a dwelling. The woman has only been in the employ of Fannie Hall a short time, but long enough, it seems, for her to ply her kleptomaniac tendencies to their full measure. Numerous articles were missed from the house at various times, until finally her apartments in a house on an adjoining block were searched, and the stolen property found. The woman was taken before Justice Bentley, who allowed the woman to go on her own recognizance until her preliminary examination was called to-day."

"Assault and Battery.

"The police judge was called upon yesterday to inquire into a case of assault and battery, wherein Eben P. Torrey and Fannie Hall were charged with beating and striking Mrs Flora Thomas, the colored woman, late in the employ of Hall and now under arrest for larceny from the former's den of infamy."

--That said publication was false, scandalous, and defamatory. And for a second cause of action, it is alleged that, on October 7th of that year, the defendants wrongfully published in the weekly Bedrock Democrat, a newspaper published at Baker City of which they were the owners and publishers, the same words concerning the plaintiff. The defendants, after denying the material allegations of the complaint, alleged that the language so published was true, and set forth other facts in mitigation of damages. A reply having put in issue the allegations of new matter contained in the answer, a trial was had; and after the plaintiff had introduced her evidence, and rested, the court, upon motion, granted a nonsuit, and rendered judgment against the plaintiff for the costs and disbursements of the action, from which judgment she appeals.

Will R. King, for appellant.

W.F. Butcher, for respondents.

MOORE, J. (after stating the facts).

The defendants contend that the notice of appeal does not describe or identify the judgment, and that the bill of exceptions does not contain all the evidence introduced by the plaintiff, and, for these reasons, move to dismiss the appeal. The material part of the notice of appeal, directed to the defendants and their attorneys, is as follows: "You, and each of you, will take notice that the above-named plaintiff, Cora Thomas, appeals to the supreme court of the state of Oregon from the judgment of the circuit court of the state of Oregon for Baker county, made and entered in the above-entitled action on the 13th day of December, 1895, sustaining defendants' motion for a nonsuit, and in favor of said defendants, and against said plaintiff, Cora Thomas, for the sum of their costs and disbursements in said action, taxed at $_____, and direction that execution issue therefor; and you will take notice that said plaintiff appeals from the whole and every part of the said judgment, and that, upon said appeal, plaintiff intends to rely upon the following errors." In Crawford v. Wist, 26 Or. 596, 39 P. 218, it is said: "The tendency of the court, as indicated by recent decisions, is to construe notices of appeal liberally, and hold them sufficient if, by fair construction or reasonable intendment, the court can say that the appeal is taken from the judgment in a particular case." Tested by this rule, the court has no doubt that the appeal is taken from the judgment of which the plaintiff complains. We fail to see how the notice of appeal could be made much more specific. It is true, the amount of the costs and disbursements is not stated therein. This is ascertained by the clerk after judgment, as incident thereto; and, while it becomes a part thereof when taxed, its insertion in the notice, except on an appeal from the taxation, must necessarily be unimportant, for it is the judgment, and not an incident thereof, from which the appeal is taken. It has been settled by an unbroken line of decisions that the action of the trial court in sustaining or overruling a motion for a judgment of nonsuit or any other ruling based upon a consideration of the evidence will not be reviewed in this court unless it satisfactorily appears that the bill of exceptions contains all the evidence upon which the court was called to pass. Fulton v. Earhart, 4 Or. 61; Parker v. Monteith, 7 Or. 277; State v. Tom, 8 Or. 177; Hayden v. Long, Id. 244; State v. Jackson, 9 Or. 457; State v. Lee Yan Yan, 10 Or. 365; Woods v. Courtney, 16 Or. 121, 17 P. 745; Atterberry v. Railway Co., 18 Or. 85, 22 P. 527; Johnston v. Railway Co., 23 Or. 94, 31 P. 283; Hedin v. Railway Co., 26 Or. 155, 37 P. 540.

The bill of exceptions, among other things, recites that "at the trial of said cause, after plaintiff had introduced the testimony of her witnesses, and rested, defendants, by their counsel, filed a petition for a judgment of nonsuit, which motion the court then and there sustained, to which ruling of the court counsel for plaintiff then and there excepted, which exception was allowed. The testimony upon the part of plaintiff, the rulings of the court upon the testimony offered by plaintiff, and the exceptions of counsel for plaintiff to said rulings, were as follows." To this the judge appended a certificate, of which the following is an extract: "I further certify that the foregoing bill of exceptions contains all of the evidence offered by the plaintiff upon the trial of said cause up to the time that plaintiff rested her case in chief, and defendants filed their motion for a nonsuit." The point relied upon in support of the defendants' motion is that the bill of exceptions does not contain the record of the cross-examination of the plaintiff's witnesses; but the certificate of the judge thereto is binding upon us, and from it we must conclude that there was no such record, and hence the motion to dismiss the appeal must be overruled.

This brings us to a consideration of the action of the trial court in granting the judgment of nonsuit. An examination of the bill of exceptions shows that plaintiff introduced evdence at the trial, a summary of which is as follows: That on October 5 and 7, 1895, the defendants were the editors and publishers of the Morning Democrat and the weekly Bedrock Democrat newspapers published at Baker City, and that on said dates the alleged libelous articles were published in said papers respectively; that the plaintiff had not been arrested; that the articles referring to Flora Thomas related to and were published of and concerning the plaintiff, Cora Thomas, but no evidence was offered tending to prove the allegation of the complaint that "said...