Wheeler v. Green
| Citation | 286 Or. 99,593 P.2d 777 |
| Parties | , 5 Media L. Rep. 1132 R. C. WHEELER, Respondent, v. Richard W. GREEN, August Wassenberg, Individually, and Richard W. Green and August Wassenberg dba Green Acres Appaloosas and United Industrial Electric, Inc. and United Industrial Control, Inc., Appellants. TC 400-705; SC 24452. |
| Decision Date | 03 April 1979 |
| Court | Supreme Court of Oregon |
William L. Hallmark of Jones, Lang, Klein, Wolf & Smith, Portland, argued the cause for appellants. With him on brief, were William A. Davis and Thane W. Tienson of Jones, Lang, Klein, Wolf & Smith, Portland.
Edward H. Warren of Hershiser, Mitchell & Warren, Portland, argued the cause for respondent. With him on brief, were Michael A. Lehner and Donald E. Hershiser of Hershiser, Mitchell & Warren, Portland.
Before HOLMAN, P. J., and TONGUE, HOWELL, BRYSON, LENT and LINDE, JJ. LENT, Justice.
This appeal requires our consideration of several aspects of the law of defamation. Constitutional, statutory, and common law issues are presented. Some, but unfortunately not all, of the complexities presented to the trial court can be disregarded for purposes of this appeal.
Plaintiff R. C. ("Bucky") Wheeler is a professional trainer of Appaloosa race horses. He is well known as a trainer among the public of Appaloosa racing, and in 1972 and 1973 was named "Trainer of the Year" by the Appaloosa Horse Club, the national governing body of Appaloosa horse racing. That award generated a certain amount of publicity.
The individual defendants, Green and Wassenberg, decided in 1972 to acquire Appaloosa horses for racing. These two defendants are the sole owners of defendant United Industrial Electric, Inc., which is, in turn, the sole owner of a subsidiary corporation, defendant United Industrial Control, Inc. Green and Wassenberg raced their horses under the name "Green Acres Appaloosas," and are also named as defendants as members of a partnership of that name.
Green and Wassenberg were not experienced race horse owners, and in 1972 they hired Wheeler to advise them on purchasing horses and to train and race those horses for them. He acted as their trainer from the fall of 1972 until they became dissatisfied with his services and discharged him in the fall of 1973.
In this action Wheeler sought to recover damages for a number of defamatory statements made after Green and Wassenberg had discharged him as their trainer. Eight causes of action were submitted to the jury. On three of these causes, the jury's verdict was in favor of all defendants, and no issues are raised on appeal in that connection. On the other five causes of action, verdicts were returned in favor of plaintiff Wheeler. The record contains evidence from which the jury must have found the following events, or significant portions of them, to have occurred:
1. Green, during a dinner conversation, told Mr. Bates, who was also an owner of Appaloosa race horses and who employed Wheeler as trainer, that Wheeler wasn't "training to the best of his ability in regard to the owners," and that he thought Wheeler was dishonest. He also told Bates that when he, Green, had objected to Wheeler's entering Green's horse in a race against Bates's faster horse, Wheeler had beaten Bates's horse with a chain in an attempt to have him scratched from the race.
2. Green, in a telephone conversation, told the secretary of the Washington State Appaloosa Association that Wheeler had bribed race officials and jockeys, that he had "paid off" gate men, that he had had Green's horse "held" at the starting gate so that another horse would win a race, and that he had forged one of Green's checks.
3. Green, during a telephone conversation with Edward Heinamann, executive secretary of the Washington State Racing Commission, said that Wheeler had forged one of Green's checks.
4. Green and Wassenberg sent a letter to Martin Saidleman, publisher of The Appy, a newsletter for followers of Appaloosa racing, referring to their prior employment of Wheeler, their shock at the "dirty tricks, lack of ethics and sportsmanship connected with the Appaloosa horse business," stating that these practices amounted to "extortion, bribery, forgery, intimidation, graft, corruption, fraud, income tax evasion, etc.," and that their first step in an attempt to discourage these unethical practices had been to fire Wheeler for misconduct. The letter, written on the letterhead of United Industrial Electric, was later published in The Appy. 1 Although the letter was sent to Saidleman at his home address, the jury must have found that Green and Wassenberg either intended or should reasonably have expected that it would be published.
5. Green and Wassenberg later sent a letter, also written on the corporate letterhead, to Richard Stanger, president of the Appaloosa Horse Club, complaining about the activities of an unnamed "supertrainer" who deceived and sneered at new horse owners, lost their equipment, forged their checks, and manipulated the figures in their accounts. The jury must have found that those who read the letter understood that "supertrainer" referred to Wheeler. Green and Wassenberg sent a copy of this letter to The Appy, which published it.
The jury must also have found that the defamatory statements made on each of these occasions were false.
The jury awarded both general and punitive damages on each of the above causes of action, as follows:
1. $ 1,000 general, $ 5,000 punitive against all
defendants
2. 12,000 general, 15,000 punitive against all
defendants except
Wassenberg individually
3. 12,000 general, 15,000 punitive against all
defendants except
Wassenberg individually
4. 75,000 general, 125,000 punitive against all
defendants
5. 50,000 general, 100,000 punitive against all
defendants
As to causes No. 2 and No. 3, the trial court granted judgment notwithstanding the verdict in favor of all defendants except Green. In other respects, judgment was entered on the jury's verdict. All of the defendants appeal.
Non-constitutional arguments for a directed verdict
Defendants contend that they were entitled to a directed verdict because each of the above defamatory statements was, as a matter of law, within the protection of a qualified privilege. They claim that each of the statements was covered by one or more of the following: The "common interest" privilege, 2 the "public interest" privilege, 3 and the "business interest" privilege. 4 Denial of a directed verdict on these grounds was not error.
Assuming that the occasions for the statements afforded the defendants a qualified privilege, such a privilege may be forfeited in several ways. See, generally, Schafroth v. Baker, 276 Or. 39, 553 P.2d 1046 (1976). Of particular relevance here, a privilege may be forfeited by abuse if the defendant's primary purpose in making the defamatory statement was improper and unrelated to the purpose of the privilege. Schafroth v. Baker, supra, 276 Or. at 46-47, 553 P.2d 1046. The jury was so instructed in this case, and there was evidence which permitted a finding that defendants acted primarily for the purpose of harming Wheeler. Although there was also evidence to the contrary, the jury was not obliged to believe it. The trial court did not err in submitting the issue of loss or abuse of privilege to the jury.
As to the Stanger letter, a copy of which was also sent to The Appy, defendants contend that there was no evidence that the recipients understood the statements in the letter to refer to Wheeler. Stanger did not testify, and no one from The Appy gave direct evidence on this point. Nevertheless, we conclude that the issue was properly submitted to the jury.
When this letter was received, the publisher of The Appy had already received the earlier letter from Green and Wassenberg in which they described in strong terms their disenchantment with the conditions prevailing in Appaloosa racing during the previous two years. That letter made it clear that they considered Wheeler responsible, at least in part, for some of the improper activities which they mentioned. That letter states that Green and Wassenberg "would like to give you a detailed story from 1972 to the present of what happened to two businessmen and sportsmen who invested two hundred thousand dollars in the Appaloosa horse business." It is also clear from that letter that Wheeler was their trainer during a major part of that period. That letter was featured on the front page of The Appy under an editorial statement referring favorably to certain suggestions in the letter.
Shortly after the first letter, the paper received the letter which now concerns us. It questions whether the Appaloosa leading trainer award represents "honesty, sportsmanship, hard work, ethics, etc.," or whether a "lust" for that award "has turned Appaloosa racing into a free-for-all." Immediately following begins the chronicle of the misdeeds of "supertrainer." The letter was featured in a double-page spread in the next issue of The Appy, preceded by an editorial note that the letter "tells of the frustrations encountered by two novice horsemen, detailing some of the problems they discovered . . ."
From all of this, the jury could infer that the editors of The Appy, and its readers, must have understood the references to "supertrainer" to be a part of the "detailed story" of their own experiences which Green and Wassenberg had offered in the original letter, and that they would understand that "supertrainer" referred to Wheeler, who had been employed by Green and Wassenberg and who had received the Trainer of the Year Award for two years in a row.
Direct testimony of the...
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