Clark v. Morrison

156 P. 429 | Or. | 1916

Mr. Justice Benson

delivered the opinion of the court.

1, 2. The history of the litigation as appears from the record is as follows: The alleged cause of action arose on June 1,1913, since which time there have been four distinct actions brought thereon, three of which have been disposed of by voluntary nonsuits, and several amended complaints filed; the supplemental complaint herein being the ninth pleading tendered. The prior action which the defendant, contends is still pending, and upon which he relies to abate the present proceeding, was disposed of by the trial court by a judgment in the following form:

“"Whereupon counseljfor plaintiff moves the court for judgment of voluntary nonsuit, which said motion is hereby granted .and allowed, and judgment of non-suit is hereby entered. ’ ’

It will be observed that the entry is silent as to costs, and is therefore erroneous: Sections 562 and 564, L. O. L.; Nob Hill Garage & Auto Co. v. Barde, 69 Or. 260-(138 Pac. 836). However, the defendant took no steps to correct the judgment, and so far as the present proceeding' is concerned, there is no prior action pending.

We next consider defendant’s contention that the complaint does not state a cause of action. At the outset it is obvious that the language of which complaint is made does not charge plaintiff with, nor does it impute to her the commission of, any crime, nor is there any innuendo ascribing any such meaning to the words used. It is well established in this state that defamatory words are not actionable per se, unless they impute a crime involving moral turpitude: Davis v. Gladden, 17 Or. 259 (21 Pac. 140). It is also settled beyond controversy that, where the words used are not slanderous per se, they are not actionable unless special damages are alleged and proven: Odgers, Libel & Slander (4 ed.), 69; (25 Cyc. 454). The allegations of the complaint are to the effect that as a result of the words used by defendant she has suffered anxiety and distress of mind, physical illness requiring expensive treatment in hospitals and elsewhere, and that the wrong complained of “has deprived her of the friendship, esteem, kindness, help and assistance of her friends and of society, which she had fully enjoyed prior thereto. ”

3, 4. Aside from the use of the phrase “substantial hospitality,” the damages incurred consist of a loss of social intercourse and physical sickness. As to the allegation of a loss of “substantial hospitality,” it is clear that this is not a sufficient allegation of injury to warrant a recovery. It has been uniformly held that special damages must be explicitly claimed and particulars given with certainty and precision: Odgers, Libel & Slander (4 ed.), 359. Loss of social intercourse and communion with friends cannot be made the basis for special damages; for, as is said in 25 Cyc. 525:

‘ ‘ The special damage must flow from impaired reputation. It must be a loss of a pecuniary character, or the loss of some substantial or material advantage. ’ ’

5. The allegation of the complaint, to be of any value, must have stated some facts from which the conclusion would follow that there had been a loss of substantial hospitality. The great weight of authority is to the effect that physical sickness is not an element of special damages: 25 Cyc. 526; Terwilliger v. Wands, 17 N. Y. 54 (72 Am. Dec. 420); Allsop v. Allsop, 5 Hurl. & N. 534; Odgers, Libel & Slander (4 ed.), 354.

6. We do not discuss the allegations of the supplemental complaint, for the reason that an original complaint which states no cause of action cannot be remedied by a supplemental pleading setting up matters which have occurred since the commencement of the action: 31 Cyc. 504; 21 Ency. PL & Pr. 18,19.

We conclude that the complaint does not state a cause of action, and the demurrer should have been sustained. A judgment for defendant will therefore be entered here.

Judgment for Defendant. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice McBride concur.