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Marleau v. Truck Insurance Exchange12/13/2001
the rule in many other jurisdictions, it is not the common-law rule and, as explained below, it is not the rule in Oregon.
Spoken words are actionable per se in Oregon only if they are words tending to injure the plaintiff in his or her profession or business, or if they impute to plaintiff the commission of a crime involving moral turpitude. Davis v. Sladden, 17 Or 259, 261, 21 P 140 (1889). At common law, an accusation of unchastity was regarded as a "spiritual" matter and "actionable only with proof of 'temporal' damage, such as the loss of a marriage." Prosser and Keeton on the Law of Torts, ยง 112, 792-93 (5th ed 1984). That rule was changed in regard to women in England in 1891, under the "Slander of Women Act." Id.; see also Barnett v. Phelps, 97 Or 242, 248, 191 P 502 (1920) (discussing how "Slander of Women Act" changed common law in England). However, Oregon continued to follow the common law. Davis, 17 Or at 261; see also Barnett, 97 Or at 249 (criticizing Davis, yet noting change in common law should be made by legislature, not court).
In this jurisdiction at the time of the decision in Davis, asserting that a woman had committed adultery did constitute slander per se, but only because adultery was prosecutable as a crime. Davis, 17 Or at 263. However, adultery no longer is a crime under Oregon law. See Brown v. Vogt, 272 Or 482, 484, 538 P2d 362 (1975) (noting that legislature decriminalized adultery in 1971). Thus, asserting that a woman has committed adultery no longer imputes criminal conduct to her. Accordingly, the allegations of paragraph "c" of the Parletts' claim do not state a claim for slander per se.
Plaintiffs do not argue that any other allegation in the Parlett complaint constitutes slander per se. Accordingly, the factual allegations of the Parletts' claim do not state a claim for defamation.
In sum, the factual allegations of the Parletts' claim do not state a claim for invasion of privacy by "false light," for public disclosure of public facts, or for defamation. Therefore, they do not state a claim for any "offense" covered under the "personal injury " provision of the insurance policy. Accordingly, we hold that the insurer did not have a duty to defend.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
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