Hubbard v. Scott

166 P. 33 | Or. | 1917

Mr. Justice Harris

delivered the opinion of the court.

The complaint alleges in general terms that the statements and conduct of Scott prevented the plaintiffs from selling the land; but there is neither allegation nor evidence to show that the language or acts cf Scott deterred any specified person or persons from buying. The plaintiffs do not allege that they were negotiating with any named person who would have purchased had it not been for the statements and conduct of Scott. The plaintiffs contend that they are not obliged to allege or prove special damages, while the defendant argues that the action cannot be sustained unless the plaintiffs allege and prove that they suffered a pecuniary loss on account of having been prevented from effecting a sale to some designated person. The difference between the contentions made by the litigants results from the variant positions taken by them concerning the nature of this action. The plaintiffs say that they are suing for damages on account of words slandering their business, while the defendant insists that this is an action for damages predicated upon an alleged slander of title.

1-3. Language which does no more than to disparage the property of another or the quality of the articles which he manufactures or sells is not actionable unless special damages are alleged and proved; but if the language disparaging the property of another also involves an imputation upon him in respect to his trade, business or profession, then the language becomes actionable per se and it is unnecessary to allege or prove special damages: Victor Safe etc. Co. v. Deright, 147 Fed. 211 (8 Ann. Cas. 809, 77 C. C. A. 437); Waters Pierce Oil Co. v. Bridwell, 103 Ark. 345 (147 S. W. 64, Ann. Cas. 1914B, 837); Marino v. Di Marco, 41 App. D. C. 76 (Ann. Cas. 1914D, 1149, 48 L. R. A. (N. S.) 1214); Sternberg Mfg. Co. v. Miller etc. Mfg. Co., 170 Fed. 298 (18 Ann. Cas. 69, 95 C. C. A. 494); Quigley v. McKee, 12 Or. 22, 24 (5 Pac. 347, 53 Am. Rep. 320); Davis v. Sladden, 17 Or. 259, 261 (21 Pac. 140); 25 Cyc. 326. Words to be actionable on tbe ground tKat they slander the business of a person must touch the person in his business; and as stated in Odgers on Libel and Slander (5 ed.), 52.

“They must be shown to have been spoken of the plaintiff in relation thereto, and to be such as would prejudice him therein. They must impeach either his skill or knowledge, or attack his conduct therein.”

Newell on Slander and Libel (2 ed.), 174. Quoting from 25 Cyc. 327,

“words not actionable within themselves are not actionable when spoken of one in a profession or trade unless they touch him in his profession or business; that is, they must have such a close reference to such profession or trade that it can be said that they are defamatory by means of an imputation upon one in that character, as for example, an imputation upon him as a clergyman, a physician, or a tradesman, distinctly from and independently of being an imputation upon him as an individual. To be actionable it is not sufficient that the words merely be injurious to one whatever his pursuit, but they must prejudice him in the special profession or business in which he is actually engaged. ’ ’

The defendant is charged with having stated to different persons that the option had terminated and that plaintiffs’ rights had ended. Even though it is assumed that the attempt to sell the land was a business within the meaning of the rule invoked by plaintiffs, nevertheless the words charged against Scott do not involve an imputation which touches the plaintiffs in that business. There is no imputation that the plaintiffs were dishonest or deceitful or that they lacked capacity or skill or that they were violating any law in the pursuit of the alleged business. It may be difficult sometimes to determine whether words spoken of a business, trade or profession involve an imputation touching the person in respect to his business, trade or profession; but, in the instant case, it is clear that the language ascribed to Scott does not involve any imputation touching the plaintiffs in their venture of attempting to sell the land for more than the option price. The instant case is in nowise analogous to any precedent cited by the plaintiffs where it has been held that the language complained of involved an imT putation upon the persons and therefore amounted to a slander of the business; but, on the contrary, every adjudicated ease upon facts like those presented here proceeds upon the theory that the title to the property, and not the business nor even the property itself, is slandered.

It is very doubtful whether the plaintiffs were engaged in a business within the meaning of the rule of damages concerning the slander of business. The option gave the plaintiffs the right to do a single act and when that act was done, nothing more remained to be done. The plaintiffs were engaged in a venture which, if accomplished, involved a single, isolated act, rather than a business which involved a series of similar transactions extending throughout a continuous period of time.

4-6. "While the plaintiffs did not own the land they nevertheless had such an interest in it as would entitle them to damages from any person who slandered their title: Newell on Slander and Libel (2 ed.), 206. If Scott falsely and maliciously made the statements charged against him, he was guilty of slandering plaintiffs’ title. The accepted rule is that a plaintiff in an action for damages for slander of title must allege and prove special damages, and it will not be enough merely to allege in general terms that the complaining party intended to sell to any person who might buy; but he must allege and prove the loss of a sale to some particular person, for the loss of a sale to some particular person is the special damage, and is of the gist of the action: McGuinness v. Hargiss, 56 Wash. 162 (105 Pac. 233, 21 Ann. Cas. 220); Burkett v. Griffith, 90 Cal. 532 (27 Pac. 527, 25 Am. St. Rep. 151, 13 L. R. A. 707); Wilson v. Dubois, 35 Minn. 471 (29 N. W. 68, 59 Am. Rep. 335); Lienan v. Lincoln, 1 Duer (N. Y.), 670; Harriss v. Sneeden, 101 N. C. 273 (7 S. E. 801); Hopkins v. Drowne, 21 R. I. 20 (41 Atl. 567); 25 Am. & Eng. Enc. of Law (2 ed.), 1079; 25 Cyc. 248; Odgers on Libel and Slander (5 ed.), 80.

7. In addition to the damages claimed on account of the loss of a sale of the land, plaintiffs allege that they incurred an expense of $750 for attorneys in the defense of the suit prosecuted by Scott, and they contend that they are entitled to be reimbursed in this action. The decree in the suit was for Hubbard, Zimmer and Schutt and the decree rendered there is supposed to have reimbursed them for any expenses incurred in the defense of the suit. It is true that the fees fixed by statute, and technically known as costs, did not furnish full compensation for the services of attorneys, and, for that reason, at least one court has permitted a complainant in an action for slander of title to recover a reasonable sum previously expended for the services of an attorney in a suit to quiet title: Chesebro v. Powers, 78 Mich. 472 (44 N. W. 290); but the weight of authority is to the contrary: Cohen v. Minzesheimer, 118 N. Y. Supp. 385; Cormier v. Bourque, 32 N. Bruns. 283; Ashford v. Choate, 20 U. C. C. P. 471; see also: Brentman v. Note, 24 N. Y. St. Rep. 281, 3 N. Y. Supp. 421; McGuinness v. Hargiss, 56 Wash. 162 (105 Pac. 233, 21 Ann. Cas. 220). The decree awarded to the defendants in the suit, the plaintiffs here, is supposed to have adjudged to the prevailing parties all snms to which they were entitled on account of expenses incurred there. The defendants in the suit could not have recovered $750 as a part of their disbursements there: McGuinness v. Hargiss, 56 Wash. 162 (105 Pac. 233, 21 Ann. Cas. 220); nor can they recover here for a disbursement made there: Yuen Suey v. Fleshman, 65 Or. 606, 614 (133 Pac. 803, Ann. Cas. 1915A, 1072). The judgment is affirmed.

Affirmed.

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