Ruble v. Kirkwood , 125 Or. 316 ( 1928 )

This is an action to recover damages for an alleged libel. It is predicated on a letter written by the defendant, R.J. Kirkwood, president and general manager of the Union Savings Loan Association, to the State Corporation Commissioner of and concerning the plaintiff. The only portion of the letter set out in the complaint is the recital that the plaintiff "has now been made a defendant in a criminal action." For several years plaintiff had been employed by the Union Savings Loan Association as a salesman of bonds and securities in the City of Portland, but such employment was terminated a few days prior to the date of this letter, December 27, 1924. On January 3, 1925, The Fidelity Reserve Loan Company, a competitor of the Union Savings Loan Association, made application to the Corporation Commissioner to have a license issued to plaintiff so that he could act as its sales agent. Before this license was issued, on January 12, 1925, The Fidelity Reserve and Loan Company rescinded plaintiff's contract of employment.

It is the theory of plaintiff that such rescission was the proximate result of the letter written by Kirkwood and had it not been for this wrongful act he would have been enabled to earn a commission of $5,000 on the sale of stock in the Fidelity Reserve Loan Company. Plaintiff complains that his reputation as a salesman and as an upright citizen has been injured by reason of this alleged defamatory letter. Judgment was demanded against both defendants for $25,000 as general damages and the sum of $5,000 as special damages. After the issues were joined on the pleadings and before trial, the action was dismissed as to the defendant Union Savings Loan Association.

The defendant Kirkwood answered in substance, after denying that plaintiff had been damaged, that the letter written to the Corporation Commissioner was a qualifiedly privileged communication made in good faith and without malice, in the belief that the statements therein contained were true. It is conceded that the plaintiff had not been made a defendant in any criminal action. Verdict and judgment was had for the defendant Kirkwood. Plaintiff appeals.

The major assignment of error is that the trial court held the letter in question to be not actionable per se. It is well settled that in determining this question we must look to the letter in its entirety and not to isolated portions thereof. Plaintiff has not seen fit to plead innuendo but relies solely upon the allegation that defendant stated he "has now been made a defendant in a criminal action." We quote the following portion of the letter which is deemed material:

"While in our employ and enjoying our full confidence, Mr. Ruble took advantage of his knowledge of several persons who had substantial balances with the association and induced them to withdraw their funds from the association and invest their money in his speculative enterprises. This he has admitted to me. Hehas now been made defendant in both civil and criminal actions, brought by one of the persons who he has induced to withdraw from this association, while he was still in our employ, the plaintiff alleging gross fraud and misrepresentation. I confronted Mr. Ruble with the statements made by this man and he confessed to a number of the allegations made. The name of the plaintiff in this case is Mr. Mark Francklin, Route 7, Box 228, Portland. I am furnishing this for any further investigation you might wish to make."

It will be observed from the words which we have italicized in the above paragraph that there is a slight variance between the allegation of the complaint and the proof.

We are of opinion that the letter is not libelous per se. We cannot say, as a matter of law, that its natural tendency would be to bring the plaintiff into public hatred, contempt and ridicule. It is not a clear imputation, either express or implied, of the commission of a crime involving moral turpitude.

While the authorities are conflicting in other jurisdictions, it is settled here that an action for libel cannot be based on a charge of having committed a crime unless it is one involving moral turpitude: Clark v. Morrison, 80 Or. 240 (156 P. 429); Davis v. Sladden, 17 Or. 259 (21 P. 140). The rule is thus stated in Newell on Slander and Libel (3 ed.), Section 71:

"The charge must clearly impute an offense which would subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, although it need not state the charge with all the precision of an indictment."

We think, however, the test as to whether an article is libelous per se should depend not upon the extent of the punishment but rather upon the effect of its publication upon those to whom it is communicated.

Moral turpitude is defined to be:

"An act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow man or to society in general contrary to the accepted and customary rule of right and duty between man and man." 41 C.J. 212; Bouvier's Law Dictionary (3 Rev.), p. 2247; Newell on Slander and Libel (3 ed.), § 66.

It is said that plaintiff has been made a defendant in a criminal action. We inquire: What kind of a criminal action? Was it one involving murder or the violation of the speed law? Was he charged with forgery or trespass? Robbery or hunting ducks without a license? One might accuse another of many statutory crimes without necessarily blackening the memory of his good name or causing him to be shunned by his fellowman. There is nothing in the letter to carry with it the imputation of guilt. In most of the cases holding that an article is libelous per se which states that a person has been arrested or indicted for some particular crime, there are coupled therewith other words from which a reasonable imputation of guilt may be drawn. After a diligent search we have found no case going so far as to hold actionable per se the bare statement that a person has been made a defendant in some unnamed criminal action.

When the letter in its entirety is considered it is doubtful whether the defendant in fact did charge the plaintiff with having been made a defendant in a criminal action for he states that the action was "brought by one of the persons who he induced to withdraw from this association." Criminal actions are brought in the name of the state. At least the letter is reasonably susceptible of two constructions, one that reference is made to a criminal action and the other that plaintiff was involved in some sort of a civil action. To be defamatory per se the letter should be capable of but one meaning: 36 C.J. 1150. The words must be of such character that the law will presume the person of whom they are written to have been damaged. Words having a doubtful meaning cannot be declared, as a matter of law, to be actionable per se.

Having held that the letter is not libelous per se, it follows that plaintiff must allege and prove special damages:Peck v. Coos Bay Times Co., 122 Or. 408, 259 P. 307, and cases therein cited. Plaintiff can have no recourse to general damages, that is, such as the law would presume as the natural and proximate result of the publication of defamatory matter. We therefore inquire: Is there any proof that plaintiff has sustained actual damages? He claims a loss of profit on sales of stock which he could have made in the future. There is no evidence as to any probable sales or to any contracts with particular customers who would have bought this stock. He had never sold any of the stock. There is no reasonable basis upon which to predicate damages. The jury should not be permitted to enter the realm of speculation and uncertainty. The bald statement of plaintiff that he could have made a net profit of $5,000 will not suffice. Since the letter is not libelous perse and there is no evidence tending to show with any degree of certainty that plaintiff was actually damaged, it was error to submit to the jury the question of punitive damages. Exemplary damages cannot be made the basis of a cause of action: Sutherland on Damages (4 ed.), § 406; 8 R.C.L. 593; 17 C.J. 974.

In view of the conclusions reached that the alleged defamatory letter is not libelous per se and that there is no evidence of actual damages, it is not necessary to consider other assignments of error. As we view the record there was no issue to submit to the jury. The judgment of the lower court dismissing this action is affirmed. AFFIRMED. REHEARING DENIED.

BEAN and BROWN, JJ., concur.

RAND, C.J., concurs in the result.