Lowe v. Brown

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] IN BANC.

This was an action for slander in which it was alleged that the defendant had said concerning the plaintiff, "It is my opinion that W.L. Lowe is a thief. He is stealing my sheep." There was a prayer for damages in the sum of $5,000. Defendant answered, denying the utterance of the words imputed to him, but admitting that he had said, "In my opinion W.L. Lowe was implicated with others stealing my sheep." There was a further answer in justification and practically a plea of mitigation of damages. Plaintiff recovered a judgment in the lower court in the sum of $50 and costs and defendant appealed.

MOTION TO DISMISS OVERRULED. Respondent moves to dismiss this appeal upon the ground that the sum in controversy, pursuant to the judgment, is only $50, and cites the concluding portion of Chapter 153, General Laws of Oregon for 1923, which citation is as follows:

"* * No appeal to the supreme court shall be taken or allowed in any action for the recovery of money or damages only unless it appears from the pleadings in the case that the amount in controversy exceeds $250."

It will be seen that this section does not make the amount of a judgment recovered the criterion for a dismissal, but the amount involved in the pleadings. In this case it is clear that the amount involved was the amount claimed in the complaint, namely $5,000. Plaintiff, by his complaint, said, "Defendant slandered me and by reason of such slander I am damaged in the sum of $5,000." Defendant answered, "I did not slander you." Therefore the trial involved two issues: first, whether the slander was uttered, and, second, the damage. The amount in controversy was clearly $5,000, and this is the holding of this court in the case of Libby v. Southern Pac. Co., 109 Or. 449 (219 P. 604, 220 P. 1017), which was an action for damages by reason of a railroad accident. The plaintiff in that case claimed $250 and recovered a judgment. In the course of the opinion, Mr. Justice BURNETT, speaking for the court, said:

"The amount in controversy in this action is $250 and not in excess thereof. This is settled by the amount of the judgment demanded in the complaint: Troy v. Hallgarth, 35 Or. 162 (57 P. 374); Ferguson v. Beyers, 40 Or. 468 (67 P. 1115, 69 P. 32). The plaintiff contends for $250. The defendant controverts this demand and hence, that is the amount in controversy." 109 Or. 451 (119 P. 605).

The statute clearly settles the case against the contention of respondent on this motion, and, as shown, this has been the holding of the court in the case above cited.

The motion to dismiss is overruled.

MOTION TO DISMISS OVERRULED.

ON THE MERITS. This is an action for defamation of character. W.W. Brown, the defendant, upon divers occasions declared that W.L. Lowe, plaintiff herein, was a sheep thief. Lowe, seeking vindication, brought this action to recover damages for injuries or supposed injuries sustained by him because of the alleged slanderous imputation uttered by Brown. The complaint avers, among other things, that in the presence of others the defendant spoke the following words: "W.L. Lowe is a thief. He is stealing my sheep." Upon the trial, most of plaintiff's witnesses testified that the defendant said: "It is my opinion that W.L. Lowe is a thief. He is stealing my sheep." The defendant, in his answer, seeking to justify his accusation, averred that the plaintiff had conspired with others and actually did assist in driving away a band of sheep belonging to defendant and another; and, on the trial of the cause, the defendant offered evidence for the purpose of supporting his averments of justification. The trial resulted in a judgment for plaintiff in the sum of $50. The defendant appeals.

AFFIRMED.