Lead Opinion
This was a libel action. A jury returned a verdict for plaintiff. The court allowed a motion for judgment n.o.v. Plaintiff appeals.
Defendant operated a restaurant, plus sleeping facilities, in Estacada which was primarily patronized by loggers working in the area. Frequently he would allow credit to his customers if the employer of the particular customer would agree to pay the bill. Plaintiff was a contract logger. One of plaintiff’s employees obtained credit from defendant and failed to pay. Plaintiff had not previously agreed to pay the bill of this employee. Defendant sought payment of plaintiff and plaintiff refused. Defendant then posted a notice in his place of business which contained the unpaid bill with the words “Wayne Hinkle owes this to us” written on the face of the bill. This is the claimed libel.
On this appeal plaintiff’s only argument is that the words were actionable per se. This case is, therefore, governed by Hudson v. Pioneer Service Co., 1959,
Affirmed.
Concurrence Opinion
specially concurring.
I specially concur again to question whether it is necessary to allege special damages when the defamatory matter is published in the form of libel, as distinguished from slander. In Reiman v. Pac. Devel. Society,
Hudson v. Pioneer Service Co.,
3 Restatement, Torts § 569, adopts the rule we announced in Reiman v. Pac. Devel. Society, supra.
“One who falsely, and without a privilege to do so, publishes matter defamatory to another in such a manner as to make the publication a libel is liable to the other although no special harm or loss of reputation results therefrom.” 3 Restatement, supra.
The law as stated in Restatement was also stated to
No reason for a departure from this rule of law has been expressed in our decisions. It appears that perhaps in this jurisdiction, if a departure was made, it was the result of a confusion of libel and slander. In Ruble v. Kirkwood,
What the state of American law now is in this area appears to be the subject of present debate by the draftsmen of Restatement (Second), Torts. The view that the existing Restatement rule, § 569, is a correct statement of the present state of the law, and should continue to be the law because it is based upon sound policy, is presented by Eldredge, The Spurious Rule of Libel Per Quod, 79 Harv L Rev 733 (1966). The contrary view of the present state of the law is advanced in Prosser, Torts (3d ed 1964), 780-783.
The reason for this opinion is to state the problem and to urge that the problem be analyzed. Unless such a process occurs, the Oregon law on the subject will
Notes
It may be that Hudson v. Pioneer Service Co., supra, can be construed as not involving defamation at all. The publication was a credit report that the defendant was delinquent on one account. This may be the tort which legal writers label “injurious falsehood.” In this tort the publication need not be personally defamatory, but it must be false and cause special damages which must be proved. 4 Restatement, Torts § 873; Prosser, Torts (3d ed 1964), 938-950.
Lead Opinion
ON PETITION FOR REHEARING
A rehearing was allowed in this case for the purpose of resolving the question stated in the concurring opinion in Murphy v. Harty, 1964,
“One who falsely, and without a privilege to do so, publishes matter defamatory to another in such a manner as to make the publication a libel is liable to the other although no special harm or loss of reputation results therefrom
As noted in the concurring opinions above mentioned, our prior decisions are not conclusive on the subject. In Ruble v. Kirkwood, 1928,
Our situation is much like that reported in the Wisconsin case of Martin v. Outboard Marine Corporation, 1962, 15 Wis2d 452,
The New York Court of Appeals in the recent case of Hinsdale v. Orange County Pub., 1966,
The opinion of the Wisconsin court is very persuasive. So is the New Jersey case of Herrmann v. Newark Morning Ledger Co., 1958, 48 NJ Super 420,
The question of which of the two rules should be adopted in the proposed Restatement 2nd on the subject of Defamation is currently of consuming interest to the members of the American Law Institute and of other members of the bench and bar who are following the debate with equal interest. Professor Prosser is strongly urging that the Restatement 2nd should adopt the rule which, he asserts, is now followed by a majority of the American courts, i.e. that special damages
His opposing advocate is Laurence H. Eldredge, Philadelphia lawyer and former Revising Reporter on Torts for the American Law Institute. He supports the present Restatement rule with an energy and zeal equal to that of Professor Prosser. He also has prepared an exhaustive brief for the members of the American Law Institute and which has also been published at 79 Harv L Rev 733, entitled The Spurious Rule of Libel Per Quod. Mr. Eldredge’s analysis of the case authority causes him to conclude that “When we turn away from the area of confusion, misconception and misstatement, we find an impressive and constantly increasing body of American law that is in accord with the English law and section 569 of the Restatement of Torts.” Id., at 743. He also contends that the trend of decision since the Restatement was published in 1938 is contrary to Professor Prosser’s conception of it. He can also state, without much contradiction, that “It is not without significance that the rule that for a libel by extrinsic facts there can be no recovery in the absence of proof of special damages has been universally denounced by the scholars who have given it consideration, including Dean Prosser himself.” Id. at 743. In support of the last statement he
Of particular local interest is an article by then Dean Carpenter of the University of Oregon Law School at 7 Or L Rev at pages 356-357 (1928), where he denounced the injection of the limitations of a slander action into the law of libel in these words.
“While the origin of this departure from the orthodox law of libel is obscure, it probably arose out of a failure to observe the well established distinction between the law of libel and of slander. The departure is unfortunate, in the first place, because there is no foundation in principle for such distinction, and in the second, the distinction which exists in slander between words actionable per se and those actionable only on proof of special damage, does not parallel that which these American courts have introduced into the law of libel. The result is to clutter the law up further with anomalous distinctions which have no merit and which lead to further confusion.
“It would be even more unfortunate if the courts should impose upon the comparatively simple and just rules of libel, the antequated (sic) harsh rules of slander, which have been condemned as odious and detested.* Rules which for example, permit a woman to recover for a ridicule of her hat but deny her recovery if she is unmarried and is called a prostitute,* should not be substituted for simple and just rules.” (*Footnote omitted).
At the cited reference to Harper & James it is said: “The question is libel or no libel, and once it is de
We are not so much concerned about which of the opposing rules has the actual support of a majority of the courts. Our prime concern is which rule is the bétter, more workable and less confusing. We conclude that the Restatement rule is to be preferred and adhere to it. With near -unanimity the writers and the courts that have actually considered the subject agree that imposing the restrictions of the law of slander on to that of libel has added confusion to com fusion and produces the absurd results mentioned by Dean Carpenter. McCormick in his work on Damages, 1935, at page 418, states that this deviation from the common law rule “adds an additional complexity to a subject already overburdened with rules which are holding over long after the judicial rivalries which produced them have been forgotten.”
In support of the libel per quod rule it is contended by some, and as partially stated by Justice Traynor, in MacLeod v. Tribune Publishing Co., 1959, 52 Cal2d 536, 550,
The principal difference between the two rules is this: By the per quod rule, when it appears that extrinsic facts are necessary to establish the defamation
In the instant case, it will be remembered, defendant posted in a prominent spot in his place of business a statement of an unpaid debt defendant claimed was due him from one of plaintiff’s employees. Defendant had written on the face of the bill the words “Wayne Hinkle owes this to us.” A few days before the posting, defendant had requested plaintiff to pay the bill and plaintiff had refused. The statement was posted for about 30 days.
At the trial the jury awarded plaintiff actual and punitive damages. The court entered a judgment n.o.v. The reason stated by the court was that it could not be said, as a matter of law, that the publication was defamatory.
Comment c to Restatement § 614, on the function of judge and jury states these criteria for deciding “whether a communication is capable of a defamatory meaning.”
“* * * In determining the defamatory character of language, the meaning of which is clear or otherwise determined, the social station of the parties in the community, the current standards of moral and social conduct prevalent therein, and the business, profession, or calling of the parties are important factors. Thus, an imputation may be defamatory as*279 applied to one person at a given time and place, although it would not be derogatory of another person at a different time or in a different place. In many cases imputations are so clearly innocent that the court is justified in determining the question without submission to the jury. On the other hand, if in the opinion of the court, the question is one as to which reasonable men might differ, it is for the jury to determine which of the two permissible views they will take. * *
Plaintiff alleged, and presented evidence tending to prove, that the place and manner of the publication as well as the words used did cause him embarrassment to his credit and carried with it the implication that he was unworthy of credit and a deadbeat. At least, the jury could have drawn these implications from the publication.
In Hudson v. Pioneer Service Co., supra,
For these reasons we conclude that the judgment n.o.v. was erroneously allowed.
It follows that the original opinion is withdrawn. The prior decisions of this court that have held that special damages must be proved when extrinsic facts are needed to demonstrate a defamation are no longer to be considered authoritative.
Concurrence Opinion
concurring.
Apparently, the majority of the American courts follow the •so-called per quod rule, which is that if a publication is not defamatory on its face, but only in the light of extrinsic facts, it is not actionable unless the plaintiff is able to prove special damages. In several of our decisions this has been stated to be the law of Oregon and for many years has been so understood by the profession. But, with the possible exception of Hudson v. Pioneer Service Co.,
The per quod rule seems to have been taken for granted in the cases that have come to this court, both by counsel and the court. Thus in the leading case of Peck v. Coos Bay Times Pub. Co. et al,
The court has now carefully considered the decisions of the courts and the writings of learned authors upon the subject and, I think, is fully warranted in its conclusion that the per quod rule is an erroneous introduction into the law of libel of a rule peculiar to slander, is illogical, and is more likely than not to lead to denials of justice. The difficulty in many cases of libel of proving special damages is obvious and the argument that there is less danger of harm from a writing which requires proof of extrinsic facts to show its defamatory character than from a
In the instant case I think that the jury could find from the manner in which the defendant chose to publish the fact of plaintiff’s indebtedness to him that this was not a bare statement that the plaintiff owed money, but carried with it the implication that he was unworthy of credit. This is defamation.