Hodges v. Hopkins Auto Supply, Inc.

Court of Appeals of Oregon

Hodges v. Hopkins Auto Supply, Inc.

615 P.2d 370, 47 Or. App. 693, 1980 Ore. App. LEXIS 3215

CourtCourt of Appeals of Oregon

DecidedAugust 11, 1980

DocketNo. A 7707-10054, CA 13736

StatusPublished

This text of 615 P.2d 370 (Hodges v. Hopkins Auto Supply, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hodges v. Hopkins Auto Supply, Inc., 615 P.2d 370, 47 Or. App. 693, 1980 Ore. App. LEXIS 3215 (Or. Ct. App. 1980).

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Opinion

JOSEPH, P.J.

In this slander action plaintiff pleaded that defendants’ statements about him as a former employee were "malicious, false and unprivileged.” Defendants denied the allegation but did not plead qualified privilege as an affirmative defense. The trial court refused to give defendants’ requested instruction on qualified privilege, and that is assigned as error in their appeal from the judgment for plaintiff awarding general and special damages.

Qualified privilege is a matter of defense on which the defendant has the burden of proof. Walsh v. Consolidated Freightways, 278 Or 347, 563 P2d 1205 (1977). Except when the complaint on its face discloses privilege, such as the absolute privilege in Moore v. West Lawn Mem’lPark, 266 Or 244, 249, 512 P2d 1344 (1973), or, perhaps, when the occasion of a qualified privilege is pleaded but malice or other matter overcoming the privilege is not alleged (see Annotation, 51 ALR 2d 552, 559), privilege must be pleaded as an affirmative defense. Neither situation was present here, and the trial court properly refused to give the instruction.

Affirmed.

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JOSEPH, P.J.

In this slander action plaintiff pleaded that defendants’ statements about him as a former employee were "malicious, false and unprivileged.” Defendants denied the allegation but did not plead qualified privilege as an affirmative defense. The trial court refused to give defendants’ requested instruction on qualified privilege, and that is assigned as error in their appeal from the judgment for plaintiff awarding general and special damages.

Qualified privilege is a matter of defense on which the defendant has the burden of proof. Walsh v. Consolidated Freightways, 278 Or 347, 563 P2d 1205 (1977). Except when the complaint on its face discloses privilege, such as the absolute privilege in Moore v. West Lawn Mem’lPark, 266 Or 244, 249, 512 P2d 1344 (1973), or, perhaps, when the occasion of a qualified privilege is pleaded but malice or other matter overcoming the privilege is not alleged (see Annotation, 51 ALR 2d 552, 559), privilege must be pleaded as an affirmative defense. Neither situation was present here, and the trial court properly refused to give the instruction.

Affirmed.

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615 P.2d 370, 47 Or. App. 693, 1980 Ore. App. LEXIS 3215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hodges-v-hopkins-auto-supply-inc-orctapp-1980.

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