Slater v. Taylor ( 1908 )

Mr. Justice Robb

delivered the opinion of the Court:

Under the facts stated, did the court err in holding that the defendant had probable cause for swearing out the affidavit?

Section 819 of the Code provides that “whoever verbally, or in writing, accuses or threatens to accuse any other person of a crime, or of any conduct which, if true, would tend to disgrace such other person, or in any other way subject him to the ridicule or contempt of society, or threatens to expose or publish any of his infirmities or failings, with intent to extort from such other person anything of value or any pecuniary advantage whatever, or to compel the person accused or threatened to do or to refrain from doing any act; and, whoever with such intent, publishes any such accusation against any other person, — shall be imprisoned for not more than five years, or be fined not more than $1,000, or both.”

What was the object and purpose of the plaintiff in posting conspicuously on defendant’s door, which, as previously pointed out, opened into a public hall, these thirty cards? Obviously to coerce payment of the money which he claimed to be due. Manifestly the plaintiff, by frequently and persistently accusing the defendant with not paying plaintiff’s claim, and by attracting the notice of defendant’s neighbors and friends thereto, hoped to compel payment, or, to use the language of the statute, “extort” payment. “Extort,” as used in the statute, means moral compulsion, — the result of exposing, or threatening to expose, the person addressed to the ridicule or contempt of society. A man who, without cause, fails. to pay his debts, merits and receives the contempt of society. But the law has provided legitimate means for the collection of debts found to be due, and it is in the interest of justice and the public peace that such acts as the record discloses the plaintiff was guilty of be suppressed. That the defendant had acknowledged the claim can make no difference, since the statute is designed to prevent any pecuniary advantage being gained by the inhibited means. Under any other interpretation, the issue in each ease would be whether the claim against the person addressed was a legal claim. The result would be to transform a criminal trial into a quasi civil proceeding.

There is analogy between this statute and the act of Congress of September 26, 1888 (25 Stat. at L. 496, chap. 1039). By that act, all matter otherwise mailable, upon the envelope or outside cover or wrapper of which any delineations, epithets, terms, or language calculated by the terms, or manner, or style of display, and obviously intended to reflect injuriously upon the character or conduct of another, may be written, or printed, or otherwise impressed or apparent, is declared to be non-mailable under a penalty of not more than $5,000 fine, or imprisonment not more than five years, or both. It has been held that mailing an envelope, upon which were the words “Excelsior Collection Agency,” printed in very large, full-faced capital letters covering more than half the envelope, constituted an offense within the act. United States v. Brown, 43 Fed. 135. The court said: “The sending of letters with those words on the outside, to a person, would lead to the inference that the character, or conduct, or both, of the person sent to, in respect to the fulfilment of pecuniary obligations, was such as to make the sending necessary or justifiable, unless they should be so restricted by construction with other words as to show that they were used for directions to return, if not called for, or other legitimate purpose not referring to the person addressed. * * * The object probably was to make the person pay up to avoid repetition of the reflection.” In United States v. Simmons, 61 Fed. 640, it was held that the words “I see * * * you do not intend to pay any attention to * * * your agreements,” on a postal card, were “obviously intended to reflect upon the character and conduct of the person addressed,” and hence within the statute. See also United States v. Dodge, 70 Fed. 235.

There was no controversy as to the facts in the present case; hence it became the duty of the court to determine, as matter of law, the question of probable cause, and a finding of probable cause, if sustained, defeats plaintiff’s action, since want of probable cause and malice, express or implied, must concur to warrant a recovery. Spitzer v. Friedlander, 14 App. D. C. 556; Crescent City L. S. L. & S. H. Co. v. Butchers’ Union S. H. & L. S. L. Co. 120 U. S. 149, 30 L. ed. 617, 7 Sup. Ct. Rep. 472.

We think the trial court fully justified in ruling that the plaintiff had accused defendant with conduct which, if true, would tend to subject him to the contempt of society with intent to extort money from the defendant, and that, therefore, the defendant had probable cause for swearing out the affidavit which forms the basis of this action.

Having ruled that the defendant had probable cause for swearing out said affidavit, it follows that the affidavit was a privileged communication, and that, therefore, the count charging libel must fall.

According to plaintiff’s own testimony he fully understood that he was not wanted in defendant’s apartment. He had repeatedly tried to gain entrance, and upon the occasion in question he was without doubt a trespasser. Owing to his previous conduct, he must have known that the defendant would eject him. It appearing from plaintiff’s own statement that the defendant used no more force than was necessary in ejecting him, the court properly directed a verdict on the count charging assault and battery.

The judgment is affirmed, with costs. 'Affirmed.