Davidson v. Rogers

HOLMAN, J.

Plaintiff brought an action for libel based upon a magazine article published by defendants.¹ Only general damages were requested. Defendants’ demurrer to the complaint was sustained upon the basis that the facts stated were insufficient to constitute a cause of action for general damages because it was not alleged that a retraction had been requested of defendants and refused by them as required by ORS 30.160.² Plaintiff appeals.

Plaintiff concedes that under our present decision in Holden v. Pioneer Broadcasting Co. et al, 228 Or 405, 365 P2d 845 (1961) he cannot maintain his action. However, he urges us to reconsider that decision arid to hold that the statute is unconstitutional as being in violation of that part of Art. I, § 10, of the Oregon Constitution which provides that "* * * every man shall have remedy by due course of law for injury done him in his person, property or reputation.”

We see no reason to depart from this court’s prior decision upon the subject. The language of the constitution does not specify that the remedy need be the same as was available at common law at the time of the adoption of the constitution; and the statute, while restricting the remedy, does not abolish the cause of action. Even though a retraction is not requested, the right of action still exists for an intentional defamation and, in any event, for recovery of specific demonstrable economic loss. Such a limitation is not violative of Art. I, § 10, for the reason that it does not wholly deny the injured party a remedy for the wrong suffered. Holden v. Pioneer Broadcasting Co. et al, supra at 412; Noonan v. City of Portland, 161 Or 213, 244, 88 P2d 808 (1939); Pullen v. Eugene, 77 Or 320, 328, 146 P 822, 147 P 768, 147 P 1191, 151 P 474, Ann Cas 1917B 933 (1915).

In addition, the legislature has made available a retraction as a substitute for the remedy which the law would otherwise have provided. Holden v. Pioneer Broadcasting Co. et al, supra at 415. As a practical matter, retraction can come nearer to restoring an injured reputation than can money, although neither can completely restore it.

If the specific remedies available at common law were frozen at the adoption of Oregon’s Constitution, the legislature would have been helpless to enact limitations upon actions such as those provided by the Workmen’s Compensation Law and the guest passenger statute, or to concern itself with other similar matters about which it is usual for legislatures to take action.

The judgment of the trial court is affirmed.

1 Plaintiff also included a count for invasion of privacy, but this issue is not addressed in his brief and has not been considered.

2 ORS 30.160. "(1) In an action for damages on account of a defamatory statement published or broadcast in a newspaper, magazine, other printed periodical, or by radio, television or motion pictures, the plaintiff shall not recover general damages unless:

"(a) A correction or retraction is demanded but not published as provided in ORS 30.165; or

"(b) The plaintiff proves by a preponderance of the evidence that the defendant actually intended to defame the plaintiff.

"(2) Where the plaintiff is entitled to recover general damages, the publication of a correction or retraction may be considered in mitigation of damages.” (Emphasis ours.)