DeLashmitt v. Journal Publishing Co.

ROSSMAN, J. This is an appeal by the defendant, publisher of the Oregon Daily Journal, from a judgment in favor of the plaintiff in a libel action. The judgment, in the amount of $5,050, was based upon a verdict. Upon the trial the defendant conceded that it published the article quoted in the complaint; that the article was false; that the plaintiff bore a good reputation ; that he was engaged in the retail florist business; and that he was entitled to some damages. The sole issue tried in the circuit court was the amount of damages. In mitigation the answer alleged that the defendant published the item through mistake, without malice, and that immediately after the error was discovered it published a correction. The libelous article appeared in the issue of December 3, 1938. A copy of it follows: “Fined as Peeper — Ralph Delashmitt, 1733 N. E. 53d avenue, was fined $25 in municipal court Friday on a charge of being a Peeping Tom. Delashmitt was captured by Lambert L. Beard, 5833 N. E. Halsey street, who testified he found Delashmitt looking into the windows of his home.” The complaint, after alleging in some detail that as a result of the publication the plaintiff suffered humiliation and that his reputation, credit and health were injured, concluded those averments with the following: “Plaintiff has been generally damaged in — 653 — the sum of $15,000.00.” The next paragraph of the complaint states: “* * * that immediately after the publication of said libel the volume of plaintiff’s business declined materially; that this plaintiff believes and therefore alleges that he has lost a number of permanent customers, and that his volume of business has been materially decreased by the said publication, as hereinbefore set forth; that plaintiff believes and therefore alleges that by reason of the said publication, as hereinbefore set forth, this plaintiff’s business, and therefore this plaintiff, has been specially damaged by loss of trade, good will and otherwise in a sum not less than $2,500.00.” Upon the trial it developed that the plaintiff caused the arrest of a “Peeping Tom” who plead guilty in the Portland municipal court and was fined $25. A reporter in the defendant’s employ, before writing the above article, consulted the records of the police department. Either because the records departed from their usual style or because of haste, the reporter mistook the name of the accuser for the name of the accused and thus transposed them when he wrote his account of the affair. The article as published was given no headline. It appeared in the Saturday afternoon edition upon page 5 in a column with many other items entitled Town Topics. That afternoon a friend of the plaintiff called his attention to the article and thereupon the plaintiff telephoned to a representative of the defendant directing attention to the error. The next day, Sunday, the defendant’s newspaper published a correction of the item upon page 4 of the main section of the paper. It carried the following headline in large type: “Florist Annoyed By False Beport.” The corrective article clearly stated that the plaintiff was the — 654 — one who caught the culprit and that the previous report concerning the matter was false. The article consumed twice as much space as the erroneous one. Shortly a newspaper entitled The Eose City Herald, which circulates in the plaintiff’s neighborhood, also published a corrective article. As we have seen, the complaint sought the recovery of damages for injury to the plaintiff’s business as well as for injury personal to the plaintiff. By reverting to the defamatory article, it will be noticed that it made no mention of the plaintiff’s business. That being true, no damage for loss of business was recoverable, unless plead and proved. Mannix v. Portland Telegram, 136 Or. 474, 284 P. 837, 297 P. 350, 300 P. 350. In an endeavor to support his claim for special damages, the plaintiff depended entirely upon the fact that his volume of business in the several months following the publication of the defamatory article was less than in the corresponding months of the previous year. For instance, his gross sales in December, 1938, that being the month in which the article was published, were $1,551.71, and his sales in December, 1937, were $1,764.97. His sales in January, 1939, were $62 less than in January, 1938. The sales in February, 1939, however, were $1.11 more than in February, 1938. But his sales in March, April and May of 1939 were less than the sales in the corresponding months of 1938. Possibly if all other circumstances affecting his business had been the same for the two years, it would be permissible to conclude that the article had had an injurious effect upon his business. However, we .notice that each month of 1938 showed a decrease in the sales from 1937. And it is very material to — 655 — note that the six months immediately following the publication showed a smaller decline from 1987 than the six months previous to the publication. The two percentages are 6.1 per cent and 17.5 per cent. The decline of December, 1938, from December, 1937, was 12 per cent, but the decline of November, 1938, from November, 1937, was 17.3 per cent. The plaintiff testified: “We had a less volume of business in 1939 than we had in 1938. However, I believe it was a slow year in all of the florists’ industry and also in the retail trade that year.” Further, referring to the article, he said: “I believe our business suffered to a certain extent. It is hard to say any set amount that we did lose because I don’t know what it did * * His wife, who served the business in the capacity of bookkeeper, testified: “I can’t directly say if it was due to the case or to business, but I know that we had a falling down of the business.” Then she was asked, and answered, as follows: “Q. Now, Mrs. DeLashmitt, is there any way to connect the falling off of business with this publication? A. There is no way.” The evidence does not name or in any other way identify any person who failed to patronize plaintiff’s place of business on account of the defamatory publication. The transcript of testimony has been very carefully read in this court. In fact, it has been read and studied by some members more than once. All of us are satisfied that the evidence wholly fails to indicate that the decline in the plaintiff’s business was in any way caused by the publication of the defamatory article. It is manifest that a causal connection must be established. “The defamatory matter must be the proximate cause of the business losses,” says 37 C. J., Libel and Slander, — 656 — p. 117, § 567. See to like effect Mannix v. Portland Telegram, supra; Newell on Slander and Libel (4th ed.), § 749; and Odgers on Libel and Slander (6th ed.), p. 313. That being true, no damages for alleged business loss were recoverable. As we have just said, the record failed to indicate that the plaintiff suffered any special damages, but the instructions told the jury: “Your verdict should award him such sum as in your judgment will fairly compensate him for such loss or injury. This may include damages for any injuries to plaintiff’s reputation and for physical or mental suffering and also for any loss to plaintiff’s business.” It is clearly evident that the part of the instruction in italics should not have been given. In giving it, error was committed. The plaintiff argues, however, that since defendant’s counsel wrote the instruction just quoted and handed it to the trial judge, he invited the commission of that error. The trial was very short. Before the noon recess defendant’s counsel wrote the quoted instruction and handed it to the court. At that time the plaintiff’s evidence in chief had not yet been concluded. Evidently at that time the defendant’s counsel assumed that the plaintiff would submit evidence substantiating his averments of special damages. Before the instructions to the jury were commenced the defendant’s counsel, in language which could not have been misunderstood, withdrew the request. He said: “We request that the jury be instructed that there has not been sufficient proof to establish any money loss or any injury to the plaintiff’s business, and therefore there is no basis for the allowance of special damages.” The presiding judge then inquired: “Any objection to that?” and received this reply from plain — 657 — tiff’s counsel: “Well, yes, Your Honor, we feel that we are entitled to go to the jury on the special damages to the plaintiff’s business.” It is evident from those remarks that the presiding judge realized that the defendant had changed its position after the written request had been made and no longer desired that it be given. Had the defendant’s counsel employed technical accuracy he would have mentioned the written instruction by name in withdrawing it, but in the stress of trials technical accuracy can not always be expected. All members of this court are satisfied that the trial judge and counsel for the plaintiff understood that the requested instruction had been withdrawn. That being true, the claim of invited error can not be sustained. As we have just seen, defendant’s counsel, before the instructions were given, requested that the jury be instructed: “There has not been sufficient proof to establish any money loss or any injury to the plaintiff’s business, and therefore there is no basis for the allowance of special damages.” At the conclusion of the instructions the presiding judge stated: “An exception will be allowed to the refusal of the Court to give any of the requests submitted.” That, of course, included an exception for the omission of the requested instruction just quoted. It is evident that the refusal of the trial judge to give the instruction just quoted was error. The refusal to give it, followed by the statement to the jury, “This may include damages * * * for any loss to plaintiff’s business”, authorized an award for an item of damage unsupported by any evidence. But the plaintiff argues that, by the deduction of $50 from the judgment, all prejudicial effect of the error can be elimi — 658 — nated. His contention is based upon tbe fact that the verdict reads: “We, the jury, duly impaneled to try the above entitled cause, find for the plaintiff and against the defendant in the sum of $5000 general damages, and $50 special damages.” However meritorious that contention would be had the instructions defined the terms “special damages” and “general damages,” we are satisfied that it must be rejected in this case because the instructions wholly failed to define or even to use those terms. The instructions nowhere employed the word “general” or “special”. Nor did they tell the jury that injury to feelings was classified differently by the law of damages than loss of business. The only kinds of damages which they mentioned were nominal, compensatory and exemplary. They told the jury, and correctly so, that the latter were not recoverable. No other ldnd of damages was in any way mentioned. The instruction stated: “Now, the plaintiff claims that by reason of the publication of this article he has been damaged in his business and in his personal comfort in the sum of $15,000.00; that his business has been damaged in the sum of $2,500.00.” It will be observed that that part of the instruction combined in its treatment damage to business and person and lumped them together in the one sum of $15,000. Regardless of what was intended, those words were capable of inducing a belief that injury to business and to person were of the same kind. As a matter of fact, the language just quoted is the only part of the instructions in which the plaintiff’s demand is stated and amounts are mentioned. Neither the pleadings in — 659 — their entirety, nor any part of them, were read to the jury. In its ultimate analysis, the problem before us is the construction of the verdict; that is, the ascertainment of the jury’s meaning. Although courts go a long way in sustaining verdicts, they demand that the jury’s meaning be unambiguous: McLean v. Sanders, 139 Or. 144, 7 P. (2d) 981. The terms “general damages” and “special damages” are not parts of the layman’s speech. They are legal devices resorted to for the purpose of denoting particular kinds of damages. In each term the adjective was arbitrarily selected. The fact that those terms are not in current use outside of the legal profession is indicated by the circumstance that most dictionaries, even most of the unabridged ones, do not include them. Juries are usually composed of men who are not learned in the use of legal terms, and certainly there is no presumption that they are familiar with such terms. A standard treatise states that it is often difficult to distinguish general from special damages: 17 C. J., Damages, p. 715, § 42, and 25 C. J. S., Damages, p. 457. We can not assume that the jurors who tried this case knew offhand the meaning of the terms “general damages” and “special damages.” Since we have no assurance that the jury knew the meaning of these terms, we have no assurance that a deduction of $50 from the judgment would cure the error; in fact, it would be as logical to say that a deduction of $5,000 would be required to cure the error. In view of the part of the instruction which stated that the plaintiff claimed “that by reason of the publication of this article he has been damaged in his business and in his personal comfort in the sum of $15,000; * * *” and the omission of the instruction to define — 660 — the terms “general damages” and “special damages,” it is as reasonable to believe that the jury, under the head of special damages, entered the amount which they awarded for injuries to personal feelings as to believe that the $50 was given for damage to plaintiff’s business. It is in truth accurate to say that no one can know whether the $50 was allowed for the one purpose or the other. It is altogether possible that a part, if not all, of the $5,000 award was made for supposed business loss. No imagination is required to apprise one of the reason why an explanation of the meaning of the two terms was omitted. Plaintiff’s counsel did not prepare his form of verdict until the instructions had been completed. In the haste of the moment the able and experienced trial judge, not having had his attention directed to the form of the verdict, evidently was not aware that it made provision for both special and general damages. Therefore, no explanation was given to the jury. An argument is attempted that the jury could have grasped the meaning of the two terms by resorting to the pleadings. Section 5-312, O. C. L. A., authorizes the jury to take with them the pleadings when they retire to deliberate upon their verdict. The jury was not instructed to read the pleadings filed in this case, nor were they informed that through reading them they could ascertain the meaning of the two questionable phrases. As we have already said, the pleadings were not read to the jury. The brief statement of the issues contained in the instructions could hardly have induced the jury to view the pleadings with interest; in fact, the word “pleadings” was not employed in the instructions. There is nothing in the record which indi — 661 — cates whether or not the jurors glanced at any of the pleadings. Even if they turned to them for the purpose of ascertaining whether damage to business was general or special in its nature, they could easily have been misled, for the paragraph of the complaint which avers the general damages says that, by reason of injury to “his reputation and credit,” the plaintiff was “generally damaged in the sum of $15,000.” The plaintiff’s reputation was, of course, closely identified with his business, and likewise with his claims of business loss. The word “credit” to most people connotes a business or commercial matter. Since most of the time of the trial was consumed with evidence which was intended to show damage to business, the jury could readily have believed from the four words just quoted (if they read them) that business losses were general damages. But, we repeat, there is nothing in the record which indicates that the jury looked at the pleadings. Speculation upon the subject appears to be idle. When a requested instruction has been erroneously refused, prejudice is presumed. The party in whose favor the error was committed thereupon has the burden of overcoming the presumption by showing that the error did not in fact influence the verdict or that the record indicates that some other incident neutralized the error. We are not satisfied that a deduction of $50 from the judgment would remove from it all of the effects of the error which was committed when the instruction which the defendant requested at the close of the evidence was refused. On account of the circuit court’s refusal to instruct the jury that purported business losses were not recoverable, the judgment must be reversed. The cause will be remanded.