Marr v. Putnam

LATOURETTE, J.,

dissenting.

I dissent for the reason that I am of the opinion that the nonsuit granted by the trial court was proper. It is the law, recognized by the majority opinion, that two parties cannot join in a personal libel action because the action is several and not joint. The following is set out in such opinion:

“'While it is well settled that when words are spoken of two or more persons they cannot join in an action for the words because the wrong done to one is no wrong to the other, a well recognized exception to this rule is where defamatory words are published of partners in the way of their business. Newell, op. cit., 343, § 307; Odgers, op. cit., 475; LeFanu v. Malcomson, supra; Weitershausen v. Croatian Printing & Publishing Co., 151 F 947; Wright v. Afro-American Co., 152 Md 587, 137 A 273, 52 ALR 908 , with annotation at p. 912 in which numerous cases supporting the exception are digested.”

All the authorities which I have read agree that the one “exception” in a case of this character is where a partnership relationship exists. The complaint does not allege the existence of a partnership between the plaintiffs. In my opinion, the complaint reveals an *66 action by the plaintiffs to recover for a personal libel. They allege that “said publication has injured plaintiffs in their persons, reputations and business in the sum of * * *.”

It is axiomatic that where a libel is published a party libeled is entitled to damages for hurt feelings, embarrassment, etc., and if his business is damaged thereby, as a natural and proximate consequence of the libel, he may recover damages resulting from loss of business. 33 Am Jur, Libel and Slander, 80, § 63. It is obvious that a partnership cannot suffer hurt feelings, embarrassment or disgrace; it can only suffer damages to its business.

From the following language in the opinion, it appears that in addition to the partnership exception, there is now being introduced a further exception unknown to law:

“The evidence as to the relationship between the plaintiffs discloses that they were partners in the radio repair business. This evidence came in without objection and was clearly admissible under the allegations of the amended complaint. That pleading showed a joint interest of the plaintiffs in the subject matter of the action and a joint injury for which they were entitled on proper proof to recover a joint judgment. To maintain such an action it was not essential that the plaintiffs allege a partnership. It was enough that they stated facts from which it appeared that they were jointly interested. It is immaterial that they could not recover a joint judgment for injury to their reputations, for, if the publication affects the plaintiffs in their joint capacity, they may sue jointly. 37 CJ, Libel and Slander, 19, § 321. If a complaint states grounds for any kind of joint relief a demurrer for misjoinder of parties plaintiff cannot be sustained. 1 Bancroft’s Code Pleading, Practice and Remedies (10 Year Supp) 111, §204; Speyer *67 v. School Dist., 82 Colo 534, 261 P 859 , 57 ALR 203 .”

The following is the text in CJ, snpra:

“ * ’ * * Where defamatory matter is published of two or more individuals, each or either of them may sue therefor. If several persons are injured by the same publication, they must sue alone, unless it can be so construed as to affect them jointly; but if the publication affects them in a joint capacity, they may sue jointly.”

The above is good law when properly applied. Under the text there are cited in the footnotes a number of cases. None of them appears to sustain the position of the majority. In all of the cases cited where a joint action was upheld, they were partnership actions, with one exception. In an early English case two parties were permitted to join under the Judicature rule. However, in a later case the court overruled on the ground that the rule did not apply since the interests of the parties were several and not joint.

The opinion cites 1 Bancroft’s Code Pleading, Practice and Remedies (10 Year Supp) 111, § 204, and Speyer v. School Dist., supra, and 57 ALR 203 . The authority for the text in Bancroft is the Colorado case, and ALR merely quotes the Colorado ease verbatim. That case was a suit in equity brought by aggrieved merchants for an injunction to .restrain the school authorities from enforcing a rule that the pupils’ lunches should be eaten in the sehoolhouse. The complaint also asked for damages. The court held that there was no misjoinder so far as the injunction suit was concerned, stating:

“The arguments upon the first ground are: (1) That since the shops of the plaintiffs are separate and several, they have no common title or interest which is injured by defendants’ conduct and so *68 have no common equity; (2) that the business of each plaintiff is the ‘subject’ of his particular action, and hence they cannot be joined under §§ 10 and 12 of the Code; and (3) that they are asking joint damages when it is obvious that only several damages can be proved.

“Upon the first point the plaintiffs have a common equity in that the injunction in favor of one would accomplish the purpose of all. The common analogue is the suit to enjoin a nuisance; one or pore injured by its maintenance may sue for all so injured. * * *

“As to the second point counsel is mistaken in supposing that it is the property or business of each plaintiff that is the subject of the action. Just as in case of a nuisance it is not the injured property of the plaintiffs that is the subject, but the right to be protected from the alleged nuisance. This is the sense in which ‘subject’ is used in Cadigan v. Brown, supra. * * * So here it is not the plaintiffs’ injured business but their common right of protection from inequitable conduct which is the ‘subject of the action,’ and the relief demanded is the injunction which protects that right.

“As to the third point the demand for relief does not determine the relief that may be granted, and, if the complaint states any ground for any kind of joint relief, the demurrer cannot be sustained for misjoinder of plaintiffs. A demand for legal relief does not destroy a complaint good in equity. * * *”

The majority selects and quotes the following sentence from Weitershausen v. Croatian Printing & Pub. Co., 151 F 947, 948:

“ ‘It results, therefore, that all persons injured by libel or slander, and having a community of interest as to the subject-matter of defamation, may sue either jointly or severally, and, if the matter complained of be libelous per se, it is no more necessary to allege special damage in the joint action than it is in the several suits.’ ”

*69 The opinion in that case commences as follows: “The plaintiffs are copartners under the firm name of ‘ Chas. R. Weitershausen Agency.’ ”

So then it appears that no authority has been cited to sustain the opinion’s novel idea of “joint interest”. On the face of it, such a theory is untenable. A libel under the circumstances of this case must either, of necessity, be a personal libel or a partnership libel. There is no middle ground.

Returning to the above quoted portion of the opinion, we find this language:

“The evidence as to the relationship between the plaintiffs discloses that they were partners in the radio repair business. This evidence came in without objection and was clearly admissible under the allegations of the amended complaint.”

The opinion does not point out the evidence which shows the existence of a partnership. Assuming, but not admitting, that to be a fact, this would avail plaintiffs nothing. It is well-known that a general demurrer tests the sufficiency of a complaint rather than the evidence. Plaintiffs might have amended to conform to the proof, if any, but this was not done.

It appears elementary to me that where members of a partnership are permitted to bring a partnership action the complaint must allege the existence of the partnership, the names of the members of the firm and the cause of action accruing to them as partners. In relation to pleading a partnership, I wish to note the early case of Clark v. Wick, 25 Or 446, 448 , 36 P 165 , in which we said:

“ * * * An allegation of partnership is only necessary when the cause of action depends on its existence: Abbott’s Trial Evidence, §203; Loper v. Welch, 3 Duer. 644. If the action is brought on *70 an obligation made payable to a partnership in its firm name, it is, of course, necessary to allege the partnership, that plaintiffs compose the firm, and that the contract was made by them in that name. Of this character are the cases cited by counsel for the defendant.”

In Bliss, Code Pleading, 244, § 145, we read:

“It is not absolutely necessary that the title describe the parties as partners and give the partnership name, provided the facts appear in the body of the complaint; but it is always best to do so. ’ ’ See 4 Bancroft, Code Pleading, 3800, § 2141.

In the case of Flower v. Barnekoff, 20 Or 132, 143 , 25 P 370 , speaking through Mr. Justice Robert S. Bean, we said:

“A partnership is usually defined to be a voluntary contract between two or more competent persons to place their money, effects, labor and skill or some or all of them in lawful commerce or business, with the understanding that there shall be communion of the profits and losses thereof between them. * * * Partnership and community of interest, independently considered, are not always the same thing, nor is a mere community of interest sufficient, but there must be an agreement to share the profits and losses, and such profits must be shared as a result of the adventure or enterprise, in which both are interested and not simply as a measure of compensation. * * * Profits may be, and in fact often are, received as mere compensation in case of service or special agency where the employe has no interest in the business or power as such, but is employed as a servant, special agent or broker, and is to receive a given proportion of the profits as compensation for his services. In such case the receipt of profits does not constitute a partnership.” (Italics mine.)

In the case of Spencer v. Wolff, 119 Or 237, 246 , 243 P 548 , we quoted with approval the language used *71 in the Flower case, supra. See Shebley v. Quatman, 66 Or 441 , 134 P 68 ; First Nat. Bank of Eugene v. Williams, 142 Or 648 , 20 P2d 222 .

In the ease at bar all that can be said for the amended complaint is that the plaintiffs allege a mere community of interest, which interest is not disclosed by the pleading.

We must remember that in this case a general demurrer was filed against the amended complaint and a nonsuit granted in favor of the defendants. In this court defendants in their brief reiterated the failure of the complaint to state facts sufficient to constitute a cause of action. The fact that they did not urge the question now being discussed is immaterial, for, in many instances, we have held that a complaint may be attacked for the first time in this court for insufficient facts. Indeed, we have held that on our own motion we may raise the point.

Inasmuch as the plaintiffs cannot join in a personal libel action, and a partnership has not been pleaded, the nonsuit was properly granted. I would affirm.

There is another reason, in my opinion, why the nonsuit was properly granted, and that is that the words used in the alleged libelous article could not, under the evidence in this case, have referred to the plaintiffs. In 53 CJS, Libel and Slander, 52, § 11, we read: “Defamatory words, in order to be actionable, must refer to some ascertained or ascertainable person, and that person must be plaintiff.” The article itself, of course, does not specifically mention the plaintiffs. Following is the portion of the article on which plaintiffs based their contention that it referred to them:

“ ‘Established radio dealers and repair plants in the city are becoming alarmed over what appears to be a “radio racket” which causes owners to lose *72 their sets and much embarrassment upon the part of the dealer.

“ ‘ “The common practice of these slickers is not to operate from any established shop bnt just give a phone number to call and offer free pick-up service,” ’ according to Ray Moore, 3720 Portland Road, who has had personal experience along this line.

“ ‘ * * * In some cases the customers were told that the radios would be taken to some well-known or established shop * * * .” ’ ”

Plaintiffs’ evidence clearly shows that their place of business was an established shop. Their shop was located in the home of one of plaintiffs and consisted of tools and equipment necessary to carry on their radio repair business. It is conceded in the majority opinion that plaintiffs were operating a repair shop, but it is urged that whether or not the shop was an “established” shop was a question for the jury. With this I disagree. By § 5-305, OCLA, the construction of writings is to be decided by the court. The exception to this principle of law, however, is where the writing is ambiguous and the construction depends upon disputed or doubtful facts. We find the following language in Johnson v. Shively, 9 Or 333 , 334:

“ * * * The rule of law is considered to be well settled, that the construction of a written instrument is a matter of law for the court to define its terms and legal effect from the language used. The exception to this is when the meaning and construction depend upon instrinsic facts whieh are doubtful and disputed. (Edelman v. Yeakel, 27 Penn. St., 26.)”

The use of the word, “intrinsic”, in the above quotation is obviously a printer’s mistake since, in the original opinion on file in this court, the word, “extrinsic”, instead of “intrinsic” is used. The case of Edelman v. Yeakel, supra, contains the following language:

*73 “ * * * When the meaning of a paper cannot be ascertained without reference to extrinsic facts which are doubtful or disputed, it must of necessity be left to the jury.”

See, also, California Well Drilling Co. v. California Midway Oil Co., 178 Cal 337, 177 P 849 ; Keyser v. Kemper, 157 Md 437, 146 A 275, 65 ALR 641 .

In the instant case, the facts relating to plaintiffs’ shop are undisputed; therefore, assuming that the article is ambiguous, it is the duty of the court to construe the article in the light of the undisputed facts in the case.

There is another rule of law, assuming that the article is ambiguous, and that is that a writing must be construed to the end that good faith may be imputed over bad faith. Salem King’s Products Co. v. Ramp, 100 Or 329, 355 , 196 P 401 . In Miller v. Gold Beach Packing Co., 131 Or 302, 310 , 282 P 764 , we said:

“The rule of construction which requires a court to place upon a writing a lawful purpose, rather than one which is opposed to public policy, is available only when such a construction will not do violence to the plain meaning of the words.”

If the alleged publication is libelous per se, the defendants would be guilty of a violation of the criminal law.

In my opinion, the language used in the purported libel is not susceptible of two meanings and is unambiguous, according to the plain meaning of the words used. The alleged libel states, “ ‘ “The common practice of these slickers is not to operate from any established shop *' * * ” ’ ”, so that if plaintiffs were operating from an established shop, they, of necessity, would be excluded from the meaning of the published article.

The majority urges that “established” is used in *74 three places in the article, and that all of the language should be construed in arriving at the true meaning of the article. With this I agree.

It is contended that, taking the article by and large, it could refer to persons not operating from well-known, established shops. The article will not bear out such meaning. Paraphrasing the above paragraphs of the article, we have the following clear, unambiguous meaning: Established radio dealers and repair plants are becoming alarmed because slickers not operating from any established shop tell their customers that radios would be taken to some well-known or established shop. The entire article is qualified to the extent that its applicability was confined to those radio repairmen who do not operate from an established shop rather than from a well-known, established shop. The evidence in this case is uncontradicted, and the language of the published article is clear and unambiguous. Taking the evidence at face value, the legal meaning of an “established” shop, and the language of the alleged libel, it becomes a matter of law for the court to determine and is not a jury question.

Because of their operating from an established shop, plaintiffs, by no stretch of the imagination, could be considered as libeled by the published article. In fact, they would be included in the category of those who are “alarmed” over the radio repair racket.

In Egan v. Finney, 42 Or 599, 603 , 72 P 133 , this court cited Smith v. Forrest, 49 NH 230, in which “establish” was defined as follows: “ ‘The ordinary meaning of the word is to settle certainly, or fix permanently, what was before uncertain, doubtful or disputed.’ ” In the case of Allen v. Commonwealth, 188 Mass 59, 74 NE 287 , the court held that a farmer who grew farm produce and sold the. same to customers *75 in a village had an established business on his farm, although he had no regular route for customers.

Taking the definitions of “established” quoted by the majority opinion, which are “ ‘made stable or firm’ ”, “ ‘settle securely, as in a business’ ”, and “ ‘to get up on a secure or permanent basis’ ”, I believe the plaintiffs’ shop fits squarely into the quoted definitions. Plaintiffs’ shop, although not in operation for any great length of time, was stable and settled securely. Whether or not a business is an established business does not depend upon the length of time the business has been in operation so long as it has a fixed situs, is secure and on a permanent basis. The business is not less established because in a short time it goes into bankruptcy or is terminated for any other cause. Plaintiffs’ business shop was not as pretentious as some larger shops, but it fitted their requirements. The fact that they had no telephone or did not serve customers from their shop would not make it less an establishment. It is well-known that some electricians, plumbers, florists, farmers, seamstresses, radio repairmen and other people have places of business in their homes but serve their customers elsewhere.

A case quite in point is Merrill v. Post Publishing Co., 197 Mass 185, 83 NE 419 , in which a newspaper article concerning a feud between plaintiff’s relatives who lived in the “same house” was held to be not libelous as to plaintiff since he did not live in that house.

Since the article in question referred explicitly to those radio operators who did not operate from established shops, obviously the article did not refer to plaintiffs, and, therefore, they were not libeled by the publication. I dissent.