Webb v. Isensee

• Decision Date: 17 July 1917
• Parties: WEBB v. ISENSEE.
• Court: Oregon Supreme Court

166 P. 544

85 Or. 148

WEBB v. ISENSEE.

Supreme Court of Oregon

July 17, 1917

Department 2.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Action by Lillie T. Webb against William Isensee. A judgment for plaintiff was set aside, and new trial ordered, and plaintiff appeals. Affirmed.

This is an action to recover damages for the alleged use of slanderous words. The complainant alleges, in effect, that at Portland, Or., about January 16, 1915, the defendant, William Isensee, wrongfully, maliciously, recklessly, and wantonly said in the presence of divers persons of and concerning the plaintiff, Lillie T. Webb, that she was of questionable character and repute, and was conducting illicit sexual commerce with men; that between March 15th and 23d of that year the defendant, in the same manner, further said in the presence of several persons of and concerning the plaintiff that she was a "crook, perjurer, thief, and a bitch," the meaning of which terms are undertaken to be explained; and that by reason of such statements the plaintiff has been damaged to the extent of $15,000, and is entitled to exemplary damages in the sum of $10,000, for the amount of which judgment is demanded. The answer denies each averment of the complaint. The cause was tried resulting in a judgment for plaintiff for $2,500, which determination was set aside and a new trial ordered.

G. G Schmitt, of Portland (Schmitt & Schmitt, of Portland, on the brief), for appellant. A. T. Lewis and R. R. Giltner, both of Portland (Lewis & Lewis and Jas. B. Finnigan, all of Portland, on the brief), for respondent.

MOORE J. (after stating the facts as above).

A transcript of all the testimony given at the trial has been sent up, from which it appears I. N. Foster testified that at Portland, Or., between the 15th and 23d of March, 1915, the defendant in the presence of Oliver Irwin and the witness said of and concerning the plaintiff that she was a tramp, a crook, a perjurer, a thief, and a bitch. W. S Hoyt testified that in such city in his presence in March 1915, the defendant in referring to the plaintiff stated she was a bitch. W. J. Cook testified that on March 16, 1915, he, with G. G. Schmitt, one of plaintiff's attorneys, went to the defendant's machine shop in Portland, Or., where was tendered to the latter a cashier's check for a sum of money determined to be the reasonable rent of an apartment house owned by the defendant and occupied by the plaintiff. Webb v. Isensee, 79 Or. 114, 153 P. 800. Whereupon the defendant, referring to the plaintiff, inquired of Mr. Schmitt: "How long have you been her attorney? How do you get your money out of her? She don't pay anybody. Do you take your pay in trade?" The attorney in speaking of the plaintiff, observed, "The woman is a very old woman, or quite old;" in answer to which the defendant remarked, "Well, you can't always tell, Schmitt; there is many a good tune in an old fiddle yet." Oliver Irwin, in alluding to the sworn declarations made by I. N. Foster as hereinbefore set forth, having testified he was present at the time and place mentioned by that witness, was asked in adverting to the defendant; "Did he call or refer to Mrs. Webb as a crook?" The answer was: "He didn't refer to her at all. Q. Did he use the word 'perjurer' in that conversation? A. No, there was nothing like that in my presence. Q. Did he use the word 'thief'? A. No. Q. Did he use the word 'bitch'? A. No." The defendant, as a witness in his own behalf, specifically denied each statement of the several witnesses so imputed to him, and also the language charged in the complaint. The cause was then argued by respective counsel and submitted. The court, treating the testimony offered as insufficient to establish the averment of the complaint that the plaintiff was conducting illicit sexual commerce with men, and that the words "crook" and "bitch" were not actionable per se, and because the complaint contained no averments of fact relating to special damages, instructed the jury to consider only the remaining parts of the charge as to whether the defendant maliciously made statements in the presence of others that the plaintiff was a perjurer and a thief. A verdict was returned for the plaintiff in the sum of $2,500, and judgment was rendered thereon as hereinbefore stated. Within the time limited the defendant's counsel moved to set aside the verdict and judgment and for a new trial on the ground inter alia of the misconduct of plaintiff's attorney, G. G. Schmitt. The stenographer who reported the testimony and the instructions made no note of any objections interposed or exceptions taken by counsel for either party during the argument of the cause.

In support of the motion for a new trial supplemental affidavits were filed, asserting inter alia that G. G. Schmitt, one of plaintiff's attorneys, who had not been a witness at the trial, in his closing argument, in referring to the defendant's denial of the testimony of W. J. Cook, hereinbefore set forth, said to the jury that the defendant was a perjurer; that he perjured himself when he made such adjuration, "because I was there and heard him say it"; that though the defendant's counsel then objected to such argument, the statement so made was not retracted, nor did the court rule upon the objection or instruct the jury in respect to the matter.

Mr....