*1 228
Argued rehearing 17, petition March affirmed June denied September 9, 1964 v. HARTY
MURPHY 2d 393 P. *2 argued Olson, Portland, the cause and
Robert L. appellant. for filed briefs Canning, argued the Portland, D. cause
Frederic respondent. himWith on the brief were Hershiser, Blyth & Jones. McMenamin, *3 Chief Justice, Before McAllister, Perry, Justices. and Lusk, Denecke O’-Cokkell, J. LUSK, plaintiff action in which the a a libel had
This is compensatory judgment for dam- $10,000 verdict appeals. ages. Defendant Baptist a former minister of the
Plaintiff during period Defendant, involved, Church. Missionary pastor Baptist of Hillcrest later clerk Oregon. alleged defamatory Portland, Church in two letters are contained written and statements under published defendant, one, date of Oc- to Elder Charles Pastor of 23, 1961, Potter, tober City, Baptist Kansas Gospel Church, Kansas, August of 30, date John P. 1961, under other, Unity Baptist in Pine Pastor of Church Saunders, have to do -withclaimed Arkansas. Both letters Bluff, missionary plaintiff improper conduct of the having Japan, he had been sent after been whither missionary endorsed for work Hillcrest Church reports February, consequence 1959. In received concerning Hill- defendant such conduct the crest Church on March voted to withdraw its 22, 1961, missionary plaintiff foreign endorsement of the Japan and to remove his ordination. August reply
The letter of was in 30, 1961, to one asking charges from Pastor Saunders details of the and contained these statements which are made the basis of the second cause of action: pay “1. Failure to debts; one
brought against [Japan] him was that he left Shime owing pay. several which he months rent failed to girl pay working Another was that he failed to as a servant in his house hold. Taking property belonging “2. him;
charge was made about some church furniture that brought at ladies the American Air Base had for the church at Shime. I "Which, as understand, charge he but at the time the back, took was made, possession.” he had in still his reply The letter of October 23, following letter from Elder Potter:
“2525 South 51st Terrace City Kansas 6, Kansas 10,1961 October Harty “Elder Frank 5618S.E. Nehalem Hillcrest Church Oregon Portland, *4 Harty:
“Dear Brother Baptist “Cospel pastor has authorized Church me as her requesting write to the Hillcrest church an among answer to the crisis which has arisen Murphys A.B.A. due to the recall of the from Japan. Brother Patterson stated in a recent letter to me that ‘another church in the A.B.A. could in- vestigate pertaining the circumstances Murphys’ Japan. recall’ as missionaries from Our regular monthly meeting church voted in business to do this. Murphys receiving
“The support have been nominal G-ospelBaptist they departed from for Church since Japan years ago, two and we were under- standably surprised when we learned from the (Searchlight they especially had been recalled, given. so when no reasons for this action were although Murphy also learn “We requested hearing Brother has a of the before Hillcrest Church proof charges against made a hear- him, ing regards has been refused him. Our church unscriptural against as an Murphys. action teaching regard The Bible has clear to matters concerning discipline as recorded in Matthew 18:15-17: “ thy trespass against ‘Moreover if brother shall go and tell him thee, his fault between thee and gained him alone: if he shall hear thou hast thee, thy brother. But if he will not hear then take thee, with thee one or two more, the mouth of every may two or three witnesses word be estab- neglect lished. And if he shall unto the church: but if he to hear them, tell it neglect to hear him let be unto church, and a thee as an heathen man publican.’ neglecting charges “Par from hear that the against Murphys, they Hillcrest Church has doing everything power have been in their to ob- hearing charges tain a to ascertain the them they might adjudged guilty so that or innocent in a fair manner. If the church that made the charges against Murphy bring Brother is unable to prove forth these then them, she owes *5 complete public apology and restoration him a fellowship. Harty, Baptist Gospel we feels Church “Brother right which contributed as church know,
have partial to support made Murphys, what were pre- against Murphys. who Also, Murphys. original charges ferred they originate origin, they Baptist or did Are Gospel Baptist local Church outside the requests sengers church? mes- of Hillcrest church that she send A.B.A. and churches of the to council of proof as a in the for her actions church show full comply request Murphy to with our case. Failure Baptist an admission that Hillcrest will be taken regard unscripturally with acted Church Murphys. Harty, Gospel would Brother Church “Also, concerning information Brother Pat- like further activities with and advice to the Hillcrest terson’s Murphys. pertaining the recall of church following paragraph is a from a letter written The Harty, your January Elmore brother, 13, by signed Brother A. L. Patterson: and “ say out the churches there will do “all ‘You Murphy just they thing in the case. There is can” one and I am done, that needs to be in a position that it be done. If the to ask church that they Murphys realize have made a endorsed they can, should, WITHDRAW their mistake, messengers That will clear recommendation. any responsibility churches of the mat- from the nothing they respect have to do but will ter, the decision to you pass that If church. this on your your thinking. let own it Don’t brother, that I think the church should him do that. tell their business. least is said about This is the best. Their it outside will be action can be meeting reported reported to the at Miami. If it is promiscously [sic] spread before then, Murphys might might manage for confusion. The work get from endorsement another church.’ Mnrphy my recently, “When Brother was in home I showed him the letter written to me Brother and he then showed me the last Patterson, letter Baptist, refusing written to him Hillcrest give hearing comparing him a before the church. In they we found had letters, been written on the typewriter. same Oregon Since Brother Patterson was in only
at time, we can conclude Murphy this letter from Hillcrest to Brother was, in fact, written Brother Patterson. We re- spectfully request your deny church confirm or *6 n this compose If fact. Brother Patterson did indeed Murphys denying hearing the letter to the them a suggest before the Baptist then we church, that Hillcrest Murphys Church restore the and make apology asking to all churches of the A.B.A., n thechurches to rescind the action taken messengers in Miami, Florida. Harty, longer “Brother Hillcrest can no remain upon Gospel Baptist silent this matter. Church in- bring every tends effort to bear in order to bring dealings Murphys these with the into the light day. teaching Scripture The clear right, light. if it’s it can bear is, ‘For there is nothing covered, that shall not be revealed; neither not be known. hid, that shall Therefore whatsoever spoken ye in have darkness shall be heard in the ye light; spoken that which have and in the ear proclaimed upon housetops.’ in closets shall be in Christ, “Yours “GOSPEL BAPTIST CHURCH
[Sgd.] “ELDER CHARLES POTTER Pastor” Potter, “Charles L. referred to A. Patterson, Brother the fore- secretary-treasurer going letter was of missions Baptist (ABA) Association American which the mentioned the record various churches are members. (which is Elder Potter letter to The defendant’s exactly written) reproduced follows: E. Nehalem St.
“5618 S. Oregon Portland October 23,1961 “Elder Charles Potter Gospil
Pastor Church 2525South 51 Terrace St. open (Also all letter to Potter an
“Dear Brother A.B.A. Churches) has last of several “Your letter to men in this church, written to this been inquiring actions concern- area this churches hope ing Murphy’s case. We entend will have write on to be the this matter. letter we last you place like In the others first you judging You are one of the Lord’s Churches. insinuating you know more about how are run this dose. In the than she business churches your you scripture applica- place error second personal given for This is tion of Matt. 18:15-17. missionary. and not for misconduct of offences, Ephses at for. commends the Church Rather Jesus ‘. . And thou not bear them which how canst *7 say they them evil. And thou hast tried which Apostles, them liars.’ and are and hast found not, thing Rev. 2:2 B. This is the the Church did ‘By judge says, their fruits, Fruits to his Jesus you shall know them.’ listening Potter and others that are “Brother you If like know the ‘Fruits’ this man. would to or his record that he has made this man, of you we Coast; himself on the West would advise copy report private of in- to secure vestigator employed Sister Homer Branson envestigate this man. is if no “Now there one reason this church had many and which we have believe them to be other, one we would have but this reason removed true, starting our endorsement and that is for an un- Japan. seriptual Murphy work in Mr. started any authority. work there without be- church We given by lieve the commision Christ was church not man, and which without author- Church ity only Murphy a mans work is of man. Mr. not a to the member this he church; was lettered out request, Church Shime his own which we protested regular baptist him letters as not practice, finaly due to but his insistence the church granted daughter his and him wife his letters to Japan. Shime Church These letters were n tomake them members of the Shime Church not authority Shime and wreck own wrecking one. to start After at work he did. Then he started his may again; you any we work, remind without authority church with two members of the Hillcrest Baptist Church as charter members Without this n Churches knowledge or consent. These were him son David and Ella David’s wife. wrote We several trying to letters show them that church without authority unscriptual. work After several exchanged, letters were we were told to mind our certainly by excluding own which we did business, grounds Murphy entering and Ella on Davis unscriptual organization. into an activity “Now Bro. Patterson and his in this many matter. have been missinformed You things, one of these is that Bro. Patterson Oregon, years been in the hasn’t last few way. any respect There is no man whom we more great L. than we do Bro. A. Patterson. He is a doing great job. man A man who minds his own might sugest you we business, Bro. Potter try following to do the instead of same, a man destroyed every thing has he who touches. Whose you only end However if is destruction. think we wrong you can take man are ordain him. statement your responsibility. Then will he for his conduct, You can answer but as far as the Baptist Church is concerned. Hillcrest We have hands of the whole our matter. washed *8 you had as information that as to the “Now give Murphy a church to the denial of this church All he wanted want one. he didn’t trial. He said charges against preacher do was throw to his, to hear advised church no brothern. We charges If none our business. he has as this is of against to their own church. them let it be made responsible They Now as for for them not us. denying having him from this church him letter say you say right All can he has. we is the that as got For we it from church. never he pastor for the He was to call never wrote one. he never did. which discussion, churches your paragraph the fifth in letter. answer to “In charges made these ‘If the Church bring charges Murphy forht is unable these Bro. public apology, prove them, she his and and then owns fellowship. complete ‘Brother Restoration you again remind that the Hill- we want to Potter, body, who is re- is sovern Church crest sponsible will not him alone. We other to Christ you any judged neither man, or will only regret you one what to do. There is tell us had in- have to this matter. We wish we that we vestigated him. this man before we indorsed We you many many were, him as were fooled thing to ask are. And in this we wish we feel still forgivness Not because our sister churches. we had our but because endorsement, we withdrew place. him in the first sense to endorse (cid:127)the little right your know the as “Brother Potter, Charges against Murphy, were these read meeting There is noth- national Mimima. ing them. wittness secreat about Now, they are and must remain confidential. this case promised to them when the This confidence was investigation will was made. can not or We they asked if were break this confidence. You Baptist, some weren’t. were some One quilifaeations preacher of a that must be well he spoken without well of. Those as those within. *9 Especially
I Tim. 3:7 A. so we feel this to true missionary forign of a in a land. feel that Mr. We Murphy disgraced himself and the churches of Japan. A.B.A. his conduct in “A few words conclusion. The Hillcrest path Church could have took the of least resistance go program and allowed this man to on with his tirancy. very hatred and distraction, nature His distroy to rule a is as dictator or can’t those he complete thorough We have rule. made in- vestigation only into the afair whole and took the up take, course we could hold our heads as proud say Church that Jesus could be of. Let us closing; pressure this church had this no from any Bro. Patterson’s office or outside influence any from one in matter. this The removal of this Murphy missionary church’s indorsement to Mr. Japan, preach to result and also his ordianation to was a thorough, complete investigation of a into the matter. church Which this takes full and responsibility. complete Murphy showing Mr. is to divide and is split aim his true nature. His distroy op- churches of the A.B.A. To that which poses very thing Bro. him, Potter, He will do long you, your as to him. For the church and will others listen stop sake Christ and think what you doing. allowing you You are him to use carry plan to Our out satans of division and distraction. prayer G-ospilBaptist that the is Church and recognize all will others the fact that the Hillcrest body carry Baptist Church is sovern and can business, the Lords the Grace of God. The re- only Murphy thing moval Mr. was the we could good do, of the cause of Christ. “Done the order of the Hillcrest Church. Harty (Pastor)
“Elder Frank [Sgd.] “FRANK HARTY “Betty (Church Clerk) 'Cram “BETTY CRAM” [Sgd.] assignment the court of error first plaintiff’s overruling demurrer defendant’s erred complaint. amended second complaint filed June amended
The second pleadings filed as follows: were Thereafter 1962. July answer defendant’s 26—the reply July plaintiff’s 30—the answer defendant’s amended 3—the October amended defendant’s second 29—the October answer reply plaintiff’s to the second amended
October 31— *10 answer. to both causes 14—defendant’s demurrer
November complaint. amended of action the second 1962. Before 14, trial November The commenced testimony any defendant taken counsel for stated was present a court that he wished to demurrer. to the presented judge inquired had the whether counsel The upon receiving presiding judge and, to the demurrer negative, “It will an answer the said: be denied. supposed up it later. These demurrers I will take presented the Counsel for defendant inter- to be —”. posed : “This on facts not sufficient to is based consti- a cause of action.” tute day plaintiff the after trial,
On second the plaintiff for the informed the rested, had counsel clerk a third “I submitted the amended court: have complaint” up “I will take and the court said: court file contains third later.” trial amended filing complaint mark which bears November 15, 1962. discloses, far as record the demurrer was
So 240 up again
not taken later and was never called to the appear court’s attention. Neither that a does it formal ruling by plaintiff’s right upon made was the court complaint. to file a amended In the third instructions, jury the court told “the issues in however, plaintiff’s ease are contained third amended complaint, defendant’s second amended answer, reply exception to that answer.” No by party to this taken either was instruction. permit The record does not tous consider provides: demurrer. The statute defendant’s “The may complaint defendant demur within the time * * appear required law and answer ORS 16.260. The demurrer was not filed until after the complaint, case was at on issue the second amended reply; the answer and the and this was after the time Assuming allowed law. the court had au thority filing to authorize the of the demurrer at that sought by permission no time, such was the defendant granted by or the court. No demurrer to the third complaint, on amended which the case tried, though properly filed. Even the demurrer could though challenge treated as it were to the third complaint, justification amended and there no in the treating passed record for so it, was never In the court. Minter v. Minter, Or 372-373, general P *11 it was held after a 157, that, demurrer complaint, filed the was and without the same having argued been to the court the defendant the case should answered, stand and be determined upon sufficiency pleading the a “as after verdict.”
In these circumstances the case stands and should upon sufficiency be determined as pleading the of a general verdict. The after rule in a such case is “that expressly facts are not wherever stated which are so
241 of them proof without recovery that, essential rendered not have been could a verdict the trial, on the want of there court, of the direction under by verdict, pro cured statement express sufficiently gen contains terms the complaint vided in fair and reasonable the facts to comprehend eral Krimbel, Nicolai v. 29 Or 76, 84, intendment.” by this court followed rule has been P This 865. Feed v. Heidloff, Co. cases. See Western numerous and there cited. P2d cases 324, 342, 230 Or in its first cause alleged amended complaint The third Elder Potter, letter Charles that of action of the pleading reference, made part which was and caused to be “maliciously” “composed pub that concerning Plaintiff”, and lished “tended to defamatory” expose “false and and ridicule.” It hatred, contempt Plaintiff to public usual and custom alleged plaintiff’s was further and for many years at the time prior ary profession of a missionary was that thereto minister, addressed circulated duly the letter was “[a]s A.B.A. 'Churches” and to all because an letter open unable has been to follow his this the plaintiff profession. of action there similar cause
In the second profession plaintiff’s respecting allegations false and in “certain defamatory following of and 'the defendant concerning letters” published the plaintiff: his debts. pay Failure properly
“1. to him.” belonging Taking property “2. that, the defendant inasmuch contended It is let complaint the face on it appears occasion and the bur- privileged written were ters *12 242 upon prove plaintiff plead was to and actual
den necessary plaintiff allege it was for the malice, showing conclusionary facts malice and the use of such “maliciously” words such as and “false” and “defama- tory” are not it is that when Next, sufficient. said damages professional reputation sought, it must alleged published plaintiff be that the words were of might profession. in connection with his Whatever be the merit of these had the third contentions, by complaint plead- demurrer, amended been tested ing clearly particulars is in when sufficient these delayed attack until on it is after the commencement of the trial. The next contention in the words of the is, allegations complaint “[e]ssential can- brief, that supplied by appears not be an to be exhibit,” upon based the idea that the contents of the letter Potter, Pastor which was made an exhibit to the complaint, cause of first action the third amended cannot be examined to determine whether the letter maliciously published. appear will As later our question consideration of the whether there is evi- dence that the defendant was motivated actual upon misapprehen- contention is malice, this based Finally, publi- sion of the law. is asserted per cations are not actionable se. We will discuss question assignment in connection with the seeond which error, is directed to the court’s denial of judgment involuntary defendant’s motion for a non- suit. ground of
The sole the motion for a nonsuit is prove any damage failure of caused publications. him the If the words used the de per properly fendant were libelous motion se, damage pre denied because, would ease, al., Marr et al. v. Putnam et 196 sumed, Or 1, 246
243 § P2d And 509. see Restatement, Torts, explanation b where thereto, Comment “actionable per explained. se” used We have held that a *13 person charge pay just that a failed to his debts is per v. not libelous Hudson Pioneer se, Service Co., plaintiff P2d 123. The 218 Or 346 in 561, that case logger delinquent who had was a been listed as a report in a credit distributed debtor the defendant accepted its subscribers. It as a to service doctrine, may that words be actionable however, when used clergyman although respect ato with the same words actionable if used not be of would others, Newell, (3d § ed) Odgers Libel 224, and 197; on Slander Libel (6th ed) 53 25; CJS Libel 88, Slander and Slander Park, v. 194 NC 138 146, SE §39; 53 616, Pentuff ALR with Annotation at 637. Under 626, this rule we charge clergyman prop- think a with that failure erly pay August debts, his the letter of 30, 1961, “program to call him a liar and to him a accuse of of tirancy,” having hatred and distruction, of aim split “to divide and churches of the A.B.A.” and carrying plan “satans out division and distruc- as in the letter of 1961, October defama- tion,” 23, are tory publish and actionable. It is libelous of a regardless profession a liar, man that he is of his or (4th occupation, ed) on Townshend Libel Slander & § al, v. Black et 110 Ga 36 207, 177; Golvard SE 642, Mont 80; Woodward, Paxton v. 31 78 P 195, 215, 107 argues Rep charge Am 416. The St defendant property belong took that did necessarily not mean to him does that he stole it, interpreted the words should be their question We need not decide the innocent sense. be- charge no remove that cause there was motion to from jury proof that the the consideration other 244
defamatory published the defend- statements were the claim that there was ant was sufficient damage. no evidence of assigns defendant as error denial
The court’s upon the based of his motion for directed verdict ground proof of actual that there was no malice. We ruling correct. think
Coneededly,
the letters were written on
They
privileged
communications from
occasion.
were
Church to another on sub
one minister of the
ject
them,
concern to both of
wit,
common
plaintiff.
to the dismissal of
which led
discipline
of church
the course
Communications
(2d ed)
privileged,
619;
v.
Prosser
Torts
Grant
so
420;
Pichel,
Ala
S
v.
State,
96,
141
37
Servatius
NH
Radwan, 83
292;
501,
v.
34 Wis
Slocinski
Whiteley v.
9 L T N
Adams,
ALR
S
643;
A
*14
if bona fide
a
even
communication,
made,
Such
483.
criminating
though
matter which otherwise
it contains
protected
privilege,
is
the
actionable,
would be
privilege
prima
facie
of
established,
ease
where
upon
devolves
the
the
as
burden
here,
express
produce
or
of actual
Cribbs
malice,
evidence
Montgomery
202
Co.,
8, 13,
&
Or
272 P2d
Ward
v.
Proof of such
authorities there cited.
malice
978,
may
may
extrinsic.
words
intrinsic or
The
used
be
op.
of actual malice, Newell,
be evidence
themselves
§
on
Folkard’s Starkie
Slander and Libel
414, 418;
cit.
Kinnersley,
Fryer
(NS)
B
v.
15 C
§325;
422,
386,
(NS)
L
P
12 R
9 T
10
415,
L
W
Jur
155,
33
J C 96,
Kilgore
P
Koen, 133 Or
288
Peck
1, 13,
192;
v.
441;
Bay
et al.,
Pub. Co.
famed not does at time hold the office pursue calling.” or Riggs, rule is illustrated v. Cramer Wend as the said: 209,where, court argument publi-
“It was insisted that the not cation was libellous, because term of the plaintiff’s expired previous office as senator had publication imputed corrupt to the conduct which to him * * in his office of senator, distinguished it held But was from libel, upon it slander, was the effect his “official charac- upon predicated, ter” which the suit but was imputation previous “the effect of the of misconduct, upon private official or otherwise, his at character publication, ground of time that constitutes the complaint holding up him an individual who had — guilty corruption capable been in office, and hence again thereby involdng upon if like conduct trusted, public.” him the odium the scorn of the See, also, § e. 569, Comment Restatement, Torts, *15 plaintiff testimony Furthermore, the claimed in his guilty that he of the misconduct was with which missionary charged Japan, he he while was in unjustly by and that he had been dealt with the Hill- relieving assignment in him of crest Church his and revoking after his ordination. He his testified traveling country spent time about return to this he visiting an effort other churches in unsuccessful missionary. If his testi- himself as re-establish jury mony have found— was true —and the could so concerning alleged the libelous statements his subse- they might though quent be as conduct well viewed actually ministry. engaged him while in the related to Pastor wrote to Saunders The letter defendant inquiry charges against the as to the answered latter’s plain- plaintiff on to the and went characterize by saying had “that the church he tiff’s conduct felt betrayed our churches, our trust and the trust of sister disgraced and our and that he had himself church conduct as a mis- of the A.B.A. his churches Japan.” sionary in no defendant
There was extrinsic evidence that writing letter, malice in of this was actuated having regard question in- whether, we possession other in the defendant’s and the formation particular, the defendant circumstances, pastor the church which had endorsed justly missionary Japan, work in could be said quoted Upon are evidence of malice. words that the Odgers question Libel it is and Slander said (6th ed) 291-292: “ to determine when ‘It is sometimes difficult defamatory may in a be words letter considered (per affording malice’ evidence of themselves Molyneux, Q. D., B. v.
Bramwell, L.J., Claris 245). appears p. this: take at the test But they appeared mind the defendant’s the facts at publication; used such time of terms might honestly and bona have as the defendant employed ? If so, the circumstances under fide stop Judge if defendant the case. For should
247 honestly plaintiff’s the to be such believed conduct strong as the used he described mere fact he it, describing words so it is no evidence of malice jury go (Spill Maule, to the L. 4 232; v. R. Ex. pp. 327, 330, 38 L. J. Ex. 335).” 138; Adam v. Ward, [1917] A.C., at separate there was no Since, motion however, jury to take from the the second cause of action based on the letter to Pastor but the motion for Saunders, against a directed verdict the if whole there case, publication evidence of malice in of the letter to Elder the basis of the first Potter, action, cause properly the motion was denied. comprised
Elder Potter’s letter to the defendant inquiry charges against an both and severe strictures on the defendant and the Hill- terminating plain- crest Church for their action in missionary having tiff’s services as without first given hearing. language him a It was couched in justified vigorous equally response an de- fendant’s letter reveals that he was well able to take care part of himself an such encounter. a As charges, his defense Elder Potter’s he could justifiably honestly descant on what he believed to be plaintiff’s actions and, within limits, his character ministry. and fitness for the But if the evidence dis- good closes that the defendant did not act in faith, advantage injure but took plain- of the occasion to standing tiff in his character or the communication privileged. would cease to be improper
"Where unnecessarily motives imputed go there is evidence of jury, malice to op. Odgers, op. eit. Fryer Newell, 415, §420; cit. 292; Kinnersley, supra; Gilpin v. v. Fowler, 9 Ex 615, 156
248
Eng Eep (Ex) L23 Ex Jur 293. More- 152, J grounds must have had the defendant reasonable over, defamatory believing matters to true. Sec- tion 601 of the Eestatement Torts reads: “Except § [not stated here relevant], upon conditionally privileged one who occasion *17 defamatory publishes false and of another matter although believing abuses the occasion the de- if, famatory grounds he matter to be has no reasonable true, believing.” so for says: Dean Prosser “* * * privilege the is existence of the Once upon the burden is established, publica-
prove that has been abused excessive it improper pur- for an of the occasion use tion, grounds pose, for in or lack of belief or belief only is con- what said. Unless one the truth of from the evidence, can drawn clusion question privilege whether determination jury.” for the Prosser Torts has been abused (2d ed) § 629 95. letter to Elder Potter relates The defendant’s missionary plaintiff’s while a conduct to the both country August, Japan return after his plaintiff a motive to letter attributes 1961. destroy of the A.B.A. characterizes the churches plan of division distraction.” “satans it as cross-examination to was asked on The defendant give and he answered: of these statements basis plaintiff] [the he made threats
“Sir, intention, was that was his Eoss Elder Jim Baptist Association and close American divide doors.” member of the Hillerest a former Eoss, Elder August, plain- after the testified Church Japan, he did make such a threat. return from tiff’s testimony given before the defendant’s testi- This subject. mony did on the same The defendant Elder told him state if at Ross about all, when, testimony alleged threat. Elder Ross’ indicates that subject with until he did not discuss the the defendant quote from after this action commenced. We his testimony: Harty
“Q You talked to Mr. this matter, about you? haven’t “A I have never discussed it. I don’t know even charges what the are. I sure have discussed it personal feelings Harty, in, with Brother but don’t
even know what Mr. Murphy, I don’t. you by personal feelings? “Q do mean What Friendship. “A Murphy, “Q You have discussed Mr. haven’t
you? certainly “A Yes, we have. *18 “Q The tenor that conversation, were what general Harty’s part statements on Mr. about Murphy? Mr. only thing “A The that was there, said Frank Murphy
had informed me after Brother had come being back he that was sued and we discussed it say brief I conversations. would not more than any five minutes at time we sat down and knowing far discussed and as it, the exact condi- anything, tions of the what the are case, or day.” I know don’t presents jury question think record We grounds to whether the defendant had reasonable believing defamatory just statements referred to they and as whether were motivated actual malice. was, motion for a directed verdict therefore,
The denied. properly but error, they
There are other of assignments in merit as so deserve dis- obviously wanting cussion. affirmed. is judgment concurring.
DENECKE, J., specially trial denial of the motion court’s affirming In stated: “If words used majority for nonsuit, se, were libelous motion was per the defendant in that because, case, damage denied would properly I with that but not agree statement presumed.” be may what to be its necessarily thought with corol- used are not libelous per se, the words dam- lary, —if are not ages presumed. for the authority respectable proposition
There is actionable form is any proof without libel It is not in this necessary damages. appeal special that authority or not is correct; whether determine concur to indicate that I such a however, specially See unresolved. Prosser’s still analy determination L in 46 Va Rev 839, decisions Oregon foot sis and Dean criticism (1960), Carpenter’s note 50 L in Or Rev 353 decisions (1928). Oregon in this joins specially J., concurring O’Connell, opinion.