Mannix v. the Portland Telegram

ON THE MERITS (297 P. 350) In Banc. On the 2d day of October, 1928, being the publisher of a newspaper in Portland, Oregon, known as "Portland Telegram," defendant published the following: "LAWYER BETRAYED HIM SAYS ACCUSED. "Declaring that he kept his silence as long as human endurance would permit Harry Knight, alias Harry McDonald, held in the Multnomah county jail on an old murder charge in Missouri, called in newspapermen Monday night and in the presence of three reporters, one county official and two jailers, hurled at Tom Mannix, Portland attorney, to whom McDonald said he had gone for legal advice, charges of a grave nature, involving an alleged plot on Mannix's part to get the fortune of Tony Neppach, a client of Mannix'.

"According to McDonald's story, Mannix had known for nearly two years that McDonald was wanted in Missouri, McDonald having informed him of this fact when he said he engaged Mannix as his attorney. It was through Mannix that McDonald was arrested. Mannix stated he had become suspicious of Knight, known then in Portland as Harry McDonald, and had traced him through Bertillon records, McDonald also accused Mannix of ``bleeding' him. McDonald said that since the first of the year he had paid Mannix sums ranging from $100 to $500 at various times.

"MANNIX DENIES CHARGES. "When the Telegram informed Mr. Mannix of McDonald's charges he branded them as ``utterly false.' He denied that he conferred with McDonald as his attorney or that he knew McDonald was wanted in the East for jumping bail on a sentence for murder, until a few days ago.

"``A man named Nelson gave me the tip a week ago concerning McDonald being wanted in Missouri', Mannix said. ``I have been McDonald's constant enemy since I met him in June and from time to time I warned Mr. Neppach against him. It was on this tip that we traced down his record and he was identified.'

"Mannix said McDonald ``propositioned him' to trim Neppach and that he flatly refused to enter into such a deal and again warned Neppach that McDonald ``was crooked and out to get his money.'

"NEPPACH LAUDS ATTORNEY. "Neppach said Mannix told him that ``McDonald was out to trim me.' Neppach said his dealings with Mannix had convinced him that Mannix was above reproach and that ``McDonald was trying to trim both of them.'

"``McDonald's charges are ridiculous and false,' said Mannix. ``I never took a nickel from McDonald and there are attorneys who know it.'

"McDonald told how he constantly was fearful that Mannix would betray him. ``I took him into my confidence as my attorney,' McDonald said, ``and told him everything. Mannix told how he traced me through police records. That's all bunk. He knew who I was because I had told him. He betrayed the confidence of a client.'

"PRISONER TELLS STORY. "McDonald's statement, in brief, follows:

"``When I came to Portland I wanted to go into business before the public and I inquired around for an attorney. Tom Mannix was recommended and I went to him. I took him out to my house and in the presence of my wife I told him the whole story of how I was accused wrongfully in Missouri, tried and convicted. He said he would regard my statements as those of a client to his attorney.

"``It was during the time Condit Conser were going through bankruptcy that I was asked to take over the business. At that time I had a furniture business. Tony Neppach, who was financially involved in the Condit Conser concern, told me he would back me and that he would loan me all the money I wanted to operate the new venture.

"SAYS HOME VISITED. "``It was about this time that Mannix came to my home at 1062 Union Avenue North and made me a proposition, which I turned down. I told him I did business on the square and that I wouldn't go that route. Mannix said he was very powerful in Portland. He told me he owed Neppach several thousand dollars and that Neppach was getting old and that had no heirs to give his fortune to. He said we both could make some money.

"``What do you mean?' I asked him. "``You know what I mean,' Mannix said to me. "``You know my name and you've got the dope on me,' I said to Mannix, ``but you can't go that route.'

"PROMISE RECOUNTED. "``I told Mannix that I couldn't do business with a man who wasn't on the square and that I would get another attorney. He promised not to tell who I was. So I got Dan Powers to represent me. Mannix came to me later and told me I had made the mistake of my life.

"``Next thing I knew I was arrested on the charge of larceny by bailee, involving the sale of five cars. Neppach, who brought the charge through Mannix, then had control of all my property and was amply secured for any business dealings I might make. I was paying him 1 per cent interest on all moneys involved in each sale besides 8 per cent on the loans he had made me.

"``Well, I felt uneasy, I knew I would have to go before the federal court. So I again went to Mannix and I said to him, "Tom, you know who I am. You wouldn't ask me my name in court, would you?" "``He said, "Oh forget it. We'll fight it out. If you win, all right, and if I win, all right."

"McDONALD UNEASY "``His actions made me more uneasy than ever. I learned that he and Dan Powers once had law offices together, and so I went to Powers and asked him if Mannix would betray a confidence. He wanted to know why I asked, but I refused to tell him. He said Mannix had always been square.

"``I gave Mannix various sums, ranging from $100 to $500, to keep mum. He said to me one day as he smiled, "You know this is but a loan."

"``The next I knew I was arrested at the fair-grounds in Salem. I called Dan Powers and told him the only man in Portland who knew of the old charge in Missouri was Mannix.

"``I learned also that Mannix and another lawyer, A.L. Wirin, in my absence, had gone to my office and represented themselves to be attorneys representing trustees, and seized all my papers and personal effects.'

"McDonald said he wanted it understood that no official had protected him while he lived in Portland as Harry Knight. He said the only man who knew his secret was Mannix. He said the total amount he had paid Mannix in ``hush' money would amount to between $2,000 and $2,500. He declared that he would not have involved Mannix had it not been for the fact that when he was taken into federal court Monday to be examined as to his assets in the bankruptcy proceedings Mannix had brought for Neppach, Mannix ``razzed' him about his true name and made references to his trouble in Missouri. ``That broke the camel's back,' he said.

"McDonald related a long story about the Missouri affair, declaring he did not kill the man he was convicted of killing. He said he had been framed. He also denied that he was involved in a bank holdup."

On February 8, 1929, plaintiff instituted this action to recover damages because of such publication.

On July 6, 1929, an amended complaint was filed.

In his amended complaint, among other things, plaintiff alleges that he is a lawyer by profession; that for several years past he has been the attorney for A. Neppach; that he never received from Harry Knight, alias McDonald, any sum whatsoever; that at no time was there any relation of attorney and client between plaintiff and said Knight, alias McDonald; that defendant published said article wilfully, maliciously and falsely, and without just cause and with actual malice; that plaintiff has practiced his profession in Portland since 1911, and has enjoyed a large and lucrative practice and has never betrayed any one's confidence directly or indirectly, and the profession of law upholds as one of its chief canons of ethics the duty of a lawyer, at every peril to himself, to regard as sacred the information received by him from clients. And, further, the betrayal of a client is viewed by the legal profession, as well as by every one else, with peculiar abhorrence, and therefore, the publication of the aforesaid libel has brought this plaintiff into the public hatred and contempt of those who read the aforesaid libel and believe it and the public generally. Plaintiff alleges actual damages in the sum of $75,000, and punitive damages in the sum of $25,000, because of said publication.

In its answer, defendant admits that it published said article, denies that it was a libel or false or malicious, and affirmatively alleges that said article was and is a fair statement of the facts and circumstances which occurred at the time and place mentioned therein, and is a true and correct account of what was said and done by the parties mentioned in said article; and that said article was not published with malicious intent.

The material allegations of the answer are denied in the reply, except as the same are alleged in the amended complaint.

Defendant contends that the circuit court erred in refusing defendant the right to cross-examine plaintiff concerning plaintiff's testimony that defendant had made prior attacks upon plaintiff.

In his direct examination, plaintiff testified to the circumstances under which he was first apprised of the alleged statements contained in the article published.

"Q. Under what circumstances did you learn that?

"* * *

"A. About 7:30 in the morning or a quarter to eight I was called on the telephone by Mr. Phillips — no, a man named Bailey, who was a reporter for the Telegram, Seth Bailey, I think his name was.

"Q. He told you who he was over the 'phone, did he?

"A. Yes; he told me who he was.

"Q. Where were you at that time?

"A. I was shaving myself in the bathroom when this 'phone came, and he said he was Seth Bailey from the Telegram and that he had a sensational story about me. I said, ``Is that so?' He said, ``Yes.' I said, ``What about it, — what kind of a story have you got about me now?' He said, ``Well, you — McDonald, or Knight, says that you betrayed him and gave away — informed on him, and said that you were his attorney; that you betrayed him professionally,' and he said, ``We are going to publish the story.' Well, the Telegram had been making a buffer of me for about a year before, and I was pretty mad about it, and I said, ``Now, I want to tell you one thing; you just stop publishing that story about me because it is entirely false,' and I said, ``If you publish it, I am going to sue you for libel,' and I told him I said to him, ``I am coming down to see you right off,' so Mr. Neppach came along then in his car and we drove to the Telegram office."

On plaintiff's cross-examination, the following proceedings were had:

"Q. You stated in your testimony that the Telegram had used you as a buffer for some time?

"A. That is true.

"Q. Prior to this publication?

"A. That is true.

"Q. What do you mean by that?

"A. I mean the Telegram had accused me of having corrupted one of the members of the supreme court falsely and maliciously and without any truth in it.

"Q. Had they accused you of that, the Telegram? Have you the paper here showing it?

"A. No, I haven't. * * *

"Q. (By Mr. Joseph.) Well, now, you say they used you as a buffer?

"A. Yes.

"Q. What did they say about you that was untrue in connection with Judge Rand?

"A. I had a case in the supreme court called the Wemme case, and the lawyer who drew the will in that case didn't know how to draw it; the will was void, utterly void. That same lawyer had charge of thirty-two thousand dollars for probating the estate, and he sold the property at the Burnside Bridge for forty-seven thousand dollars, and falsely represented to the court that he had obtained one hundred thousand dollars for it, and in order to cover his own tracks, he tried to make me out a crook, and the Telegram was his vehicle in doing it.

"Q. Yes; now, you are talking about me, aren't you?

"A. Yes.

"Q. Well, you are talking about a good man.

"A. I guess that will hold you for a while.

"Q. Mr. Mannix, did you meet Judge Rand in the Imperial Hotel with Mr. Wicke?

"A. I did not.

"Q. Well, if Judge Rand swears that you did, what would you say to that?

"A. Well, I did not.

"Q. You would say you did not?

"A. Yes, sir; I say I did not.

"Q. Who introduced Wicke to Judge Rand?" (Tr. of Ev., pp. 91, 92.)

Whereupon counsel for plaintiff objected to further cross-examination along this line and objection was sustained.

Plaintiff was then asked the following questions, all of which were objected to and ruled out by the court:

"Q. (By Mr. Joseph.) Mr. Mannix, the Wemme case which you mentioned was a case in which you were trying to recover five hundred thousand dollars which was left as a bequest by E. Henry Wemme, for the purpose of constructing a home for unfortunate girls? (Tr. of Ev., p. 98.)

"Q. (By Mr. Joseph.) Mr. Mannix, how many cases did you bring concerning the Wemme property? (Tr. of Ev., p. 101.)

"Q. (By Mr. Joseph.) Mr. Mannix, you held an option on the mine of Judge John L. Rand of our supreme court, wherein you agreed to pay him three hundred thousand dollars after the commencement of the first Wemme case? (Tr. of Ev., p. 101.)

"Q. (By Mr. Joseph.) Did anybody receive, any lawyer receive thirty-two thousand dollars for closing, administering the Wemme estate, the E.W. Wemme estate? (Tr. of Ev., p. 103.)

"Q. (By Mr. Joseph.) Did you ever investigate the record of administration of that case, the Wemme matter? (Tr. of Ev., p. 103.)

"Q. (By Mr. Joseph.) Mr. Mannix, do you know what lawyer handled the administration of the Wemme case? (Tr. of Ev., p. 105.)

"Q. (By Mr. Joseph.) Don't you know, as a matter of fact, that Judge Littlefield handled it entirely? (Tr. of Ev., p. 105.)

"Q. (By Mr. Joseph.) You were acquainted with E.W. Wemme, the Alien Property Custodian, were you, Mr. Mannix? (Tr. of Ev., p. 105.)

"Q. (By Mr. Joseph.) Also you were acquainted with Mr. Dow V. Walker, who was local Alien Property Custodian? (Tr. of Ev., p. 106.)"

Seasonably, defendant moved for a directed verdict "on the grounds that there is no evidence as to the plaintiff's reputation and standing as an attorney in this record." This motion was overruled.

Defendant contends that the circuit court erred in instructing the jury to consider what effect the publication had upon plaintiff in his profession and upon him as an individual.

Among other things, the court instructed the jury as follows:

"Libels are classified as —

"First, those which impute to a person the commission of a crime;

"Second, those which have a tendency to injure a person in his office, profession, calling or trade; and,

"Third, those which hold him up to scorn, ridicule or contempt, and impair him in the enjoyment of general society.

"This action is based upon the second and third classes, to wit: a publication which the plaintiff claims affects him in his profession and holds him up to hatred and contempt generally. Therefore, you are to consider in this case, what effect, if any, the publication in question has had upon the plaintiff in his profession as a lawyer, and what effect it may have had upon him as an individual."

Defendant excepted to the circuit court's instruction that the jury might consider the loss of business of plaintiff as an element of damage.

The court instructed the jury as follows:

"You have a right in awarding damages to take into consideration the plaintiff's business experience, length of time practicing law, loss of confidence because of the said libel, the circulation of the libel and the number of copies circulated, the injury to the feelings of the plaintiff, humiliation, loss of business and standing in his profession and in the community and all the natural consequences of the publication as affecting the plaintiff in his personal and professional capacity."

In saving its exceptions to the instructions, defendant used language as follows:

"The defendant excepts to the instruction given that this action is based upon the second and third classes of libel as classified in the instruction and submitted to the jury, the consideration of the jury, the effect that this has had upon the plaintiff as a lawyer and as an individual.

* * * * * "Further excepts to the instruction that the jury might consider the loss of business of the plaintiff in considering damages as being outside of the pleadings and the evidence."

From a judgment, based upon a verdict in the sum of $35,000, defendant appeals. Among the assignments of error discussed in defendant's brief are:

That the court erred in instructing the jury to consider what effect the publication had upon plaintiff in his profession and upon him as an individual.

That the court erred in refusing defendant the right to cross-examine plaintiff concerning plaintiff's testimony that defendant had made prior attacks upon plaintiff. We will discuss these assignments of error in the order stated.

In his amended complaint, plaintiff alleges that he has practised his profession in Portland since 1911, and has enjoyed a large and lucrative practice. "And further, the betrayal of a client is viewed by the legal profession, as well as by every one else, with peculiar abhorrence, and, therefore, the publication of the aforesaid libel has brought this plaintiff into the public hatred and contempt of those who read the aforesaid libel and believe it and the public generally." There is, however, no allegation in the amended complaint of damages to plaintiff in his professional capacity. Neither is there any allegation of loss of business. Moreover, there is no testimony either that plaintiff was damaged in his professional capacity, or that he suffered loss of business.

A case, very similar to the one at bar, decided by the supreme court of Michigan, announces the law applicable where there is neither pleading nor proof that plaintiff was damaged in his professional capacity or suffered loss of business by reason of the publication in question. The Michigan court, speaking through Mr. Justice Grant, said:

"All charges of disreputable or criminal conduct tend to injure every man in his profession, trade, or occupation; but the law does not permit recovery therefor unless the words be spoken of him in regard to such profession, trade, or occupation, and loss is alleged and proved. Every such plaintiff can recover for injury to feelings and damage to his reputation. If he desires to go beyond this, it is a wholesome rule to require him to connect the libelous charge by the proper colloquium with such profession, trade, or occupation, and to allege special damages. We think this declaration was not sufficient to justify the court in submitting to the jury the question of damages in his profession.

"2. The introductions were erroneous for another reason, viz., there is not a scintilla of evidence upon the record that plaintiff was injured in his profession. Upon this the record is silent. If it should appear that plaintiff's business had increased after the publication of this article, would the jury be justified in finding that he had suffered loss in consequence of the publication? When one claims loss in his business or profession, it is certainly in his power to show such loss. Is it not a reasonable rule which requires him to do so before he can obtain a judgment? When no such loss is shown, the injury must be confined to injured feelings and injured reputation." Smedley v.Soule, 125 Mich. 192 (84 N.W. 63, 65).

This doctrine finds support in the following cases: Gandy v.Humphries, 35 Ala. 617; Gambrill v. Schooley, 95 Md. 260 (52 A. 500, 63 L.R.A. 427); Friedman v. Pulitzer Pub. Co.,102 Mo. App. 683 (77 S.W. 340); Dicken v. Shepherd, 22 Md. 399;Loftus v. Bennett, 68 A.D. 128 (74 N.Y.S. 290); Roddy v.Gazette Co., 179 Iowa 50 (161 N.W. 94); Brinkmann v. Taylor, 103 Fed. 773; Cramer v. Cullinane, 2 MacArthur (9 D.C.) 197;Holston v. Boyle, 46 Minn. 432 (49 N.W. 203); Line v. Spies,139 Mich. 484 (102 N.W. 993).

It must be remembered that the question here discussed is not upon the sufficiency of a complaint, tested by demurrer, as in the case of Peck v. Coos Bay Times Pub. Co., 122 Or. 408 (259 P. 307). In the case at bar the amended complaint states a cause of action because the article set forth therein is libelous per se.

We hold that the court erred in instructing the jury that in awarding damages the effect of the publication upon plaintiff's reputation or standing in his profession could be considered by them. This instruction was beyond the purview of the pleadings and unsupported by any evidence.

The authorities upon the question of whether or not there is a presumption that plaintiff's reputation, as an attorney, is good are few in number. The parties herein cite but two. A diligent search on our part fails to augment the number. Those cited hold that there is no such presumption: Scott v. Times Mirror Co.,178 Cal. 688 (174 P. 312); Aston v. Examiner Printing Co., 226 Fed. 496.

The question submitted to the jury was not whether plaintiff had a good reputation, as an attorney, but as to the effect thereon of the publication in question. While we are not unaware of authorities at variance with our views, we think the better reasoning and weight of authority support them.

For the reasons assigned, we also hold that the circuit court erred in instructing the jury that in awarding damages, consideration could be given to loss of business.

The court also erred in abridging the cross-examination of plaintiff as outlined in the foregoing statement of facts. It will be borne in mind that plaintiff charges actual malice. His statement that defendant had been making a buffer of him is susceptible of but one meaning, namely, that defendant had made prior unwarranted attacks upon him, and in fact the plaintiff so testified. This bears directly upon the question of actual malice. Where an adverse witness gives testimony bearing upon a question directly in issue, cross-examination with respect to such testimony is a matter of right and a denial of that right is reversible error: Harrold v. Territory of Oklahoma, 169 Fed. 47, 17 Ann. Cas. 868; Heard v. United States, 255 Fed. 829; Galindez v.United States, 19 F.2d 352; People v. McKernan, 236 Mich. 226 (210 N.W. 219); Prout v. Bernards Land Sand Co.,77 N.J.L. 719 (73 A. 486, 25 L.R.A. (N.S.) 683). That defendant once offered and then withdrew a motion to strike this statement of plaintiff as unresponsive could in no wise affect defendant's right to cross-examine thereupon for such motion invited error.

Plaintiff cites cases holding that cross-examination need not be permitted upon immaterial testimony. These authorities are not in point here for the reason that plaintiff's testimony was not immaterial. Plaintiff also cites authorities to the effect that a party who permits incompetent testimony to be received without objecting or moving to strike cannot thereafter claim that error was committed by its reception. Those authorities are not in point because no such claim is urged by defendant. Defendant claims only that its right of cross-examination upon material testimony was denied.

Although the rule appears to be otherwise in Virginia and North Carolina, American Bonding Trust Co. v. Milstead,102 Va. 683 (47 S.E. 853); Steeley v. Dare Lumber Co., 165 N.C. 27 (80 S.E. 963), no showing as to what will be elicited by proposed cross-examination of an adverse witness is necessary in order to preserve such record on appeal: Eames v. Kaiser, 142 U.S. 488 (12 S. Ct. 302, 35 L. Ed. 1091); 4 C.J. 76, note 26; Cunningham v.Austin, etc., R. Co., 88 Tex. 534 (31 S.W. 629); Long v. RedRiver, etc., R. Co., (Tex.Civ.App.) 85 S.W. 1048; Hutts v.Hutts, 62 Ind. 214; Le Doux v. Seattle N.P. Ship Building Co., 114 Wash. 632 (195 P. 1006); Martin v. Elden, 32 Ohio St. 282;O'Donnell v. Segar, 25 Mich. 367; Harness v. State,57 Ind. 1; Hyland v. Milner, 99 Ind. 308.

We have carefully considered the other assignments of error and deem them untenable, but for the reasons above stated this case is reversed and remanded.

BROWN and BELT, JJ., concur.

RAND and ROSSMAN, JJ., did not participate.

BEAN, C.J., and CAMPBELL, J., dissent.