Malouf v. Metropolitan Life Ins. Co.

I dissent. Appellant in his brief states:

"The controlling question presented on this appeal is whether or not the communication from the defendants to Heber J. Grant, set forth in haec verba in the complaint, is libelous per se."

The law of libel is stated in Nichols v. Daily ReporterCo., 30 Utah 74, 83 P. 573, 574, 3 L.R.A. (N.S.) 339, 116 Am. St. Rep. 796, 8 Ann.Cas. 841, as follows:

"* * * Written derogatory or disparaging words which impute to a person the commission of a crime, or degradation of character, or which have a tendency to injuriously affect him in his office or trust, profession, trade, calling or business, or which tend to degrade him in society, or expose him to public hatred, contempt, or ridicule, are libelous and actionable. It also is the well-recognized rule that when the words are libelous per se, it is not necessary to allege or prove special damages, for malice and damage are implied; * * * Still another test, and the one which we think is the correct one, and which is supported by the greater weight of authority, is, `when language is used concerning a person or his affairs which from its nature necessarily must, or presumably will, as its natural and proximate consequence, occasion him pecuniary loss, its publication' is libelous per se. Townshend (4th Ed.) §§ 146, 147;Fry v. McCord Bros., 95 Tenn. 680, 33 S.W. 568. * * *"

It is claimed by plaintiff in his complaint in the instant case that "by means of said publication the plaintiff was injured in his name, fame and reputation and in his said good name and credit in the said profession and in his said employment, and has been thereby held up to public hatred, contempt, and ridicule, to his damage," etc. The words specifically complained of as being defamatory are that the defendants accuse plaintiff of being "unscrupulous," using "our church as a cloak of armor to protect and shield their unethical tactics," "dishonorable methods in business," "lack of respect of law," "twisting," "unlawful," "unethical tactics," and of "deceiving the public." These words and expressions are of a derogatory character, and, standing alone, might give rise to a charge of libel. We are not, however, called upon to decide whether these words are libelous if used without context explaining them. Whether an article is libelous per se is for the court to determine, and in so doing it must look to the general purport and intent of the article published, and not to isolated expressions or words. The rule is stated in 36 C.J. 1157, as follows:

"The language alleged to be defamatory must be construed as a whole, that is, the words must be construed in connection with other parts of the conversation or published matter written or printed."

The same rule is expressed in 17 R.C.L. 313, thus:

"In arriving at the sense in which defamatory language is employed, it is proper and necessary to consider the circumstances surrounding its publication and the entire language used. Even though the plaintiff desires, he cannot confine his action to a certain portion of the statement which the defendant has made, but the latter may demand that the entire conversation be considered in determining whether or not a portion thereof is actionable. In many instances, words which are harmless in themselves may be actionable in the light of surrounding circumstances. On the other hand, words which are apparently actionable in themselves may be rendered not actionable by the surrounding circumstances."

Among the cases which support this rule are the following:Lynch v. Standard Pub. Co., 51 Utah 322, 170 P. 770; TimesPub. Co. v. Ray (Tex.Civ.App.) 1 S.W.2d 471; Peck v.Coos Bay Times Pub. Co., 122 Or. 408, 259 P. 307; Yakavicze v. Valentukevicious, 84 Conn. 350, 80 A. 94, Ann. Cas. 1912C, 1264; Ruble v. Kirkwood, 125 Or. 316, 266 P. 252. A case particularly in point is that of Donaghue v. Gaffy,53 Conn. 43, 2 A. 397, 399. There a circular was issued instead of a letter to an individual. The plaintiffs were charged with "base treachery" and "foul and unfair dealing." The circular contained a statement of what it was claimed plaintiffs had done upon which the charge was made. The court said:

"Ought, then, the circular to be construed as containing a libel per se? We think not. All parts of the paper should be read in connection to collect the true meaning. If so read, the severe epithets applied to the plaintiffs lose all their force, except as they attempt to characterize a single transaction, which is manifestly referred to as the sole foundation for all the statements made. That transaction or `experience,' as the circular calls it, clearly shows that the epithets `base treachery,' `foul and unfair dealings,' are not to have their ordinary meaning. The gist of the whole matter is thus stated by the defendant: `I have been in the habit of buying nearly all my goods of them for years, but because I quit buying of them they went to the Middletown Savings Bank, of which I rented my place, and offered ten dollars more a month than I was paying; and, after getting their lease of the premises, served a notice on me to immediately vacate.'

"Now all this is a perfectly lawful transaction, whatever the intention; and how can we legally presume from such a statement that the plaintiffs were thereby degraded in the estimation of acquaintances or the public, or that they suffered loss in character, property, or business?"

A reference to the letter complained of in this case shows that the writer, while characterizing certain conduct by the use of rather strong epithets has attempted to set out facts which are the grounds of the accusations. In two places the writer states that he is attempting to give the "important facts." The facts are, in substance, as follows: (a) that the defendants were compelled to reduce the force employed in the conduct of their life insurance business by demoting the assistant manager of the Ogden branch to the rank of agent; (b) that this agent then gave up his position with the Metropolitan to accept the "managership" of the Beneficial Life Insurance Company, and took with him ten agents, all of them "L.D.S. boys" but one, who was a Roman Catholic, and whom he made assistant manager; (c) that plaintiff, who was a Roman Catholic, and his assistant were being led into homes where they could not go except by introduction by the L.D.S. boys, where they used their ability as salesmen, the name of the president of the Beneficial, and the church, to influence people to drop their insurance theretofore carried and to take insurance with the Beneficial. I see nothing defamatory in the subject-matter of these facts. The writer of the letter seems to have assumed that, because it is the general opinion of the public that the Latter Day Saints church controls the Beneficial Life Insurance Company, and that the president of that church is the president of the Beneficial, it was unlawful and unethical for agents of the Beneficial to use these facts while soliciting insurance business. I am of the opinion that the use of such information is in no manner unlawful or unethical. There is nothing in these facts set out in the letter which would lead one to believe that any improper, unethical, or illegal methods had been or were being used by the plaintiff and his socalled "L.D.S. boys" in order to obtain business for the company. I am unable to see how the language used, when considered altogther, can be said to tend in any degree to degrade the character of the plaintiff or to injuriously affect him in his calling or profession as an insurance man; and it certainly has no tendency to degrade him in society or expose him to public hatred, contempt, or ridicule. It might have the opposite tendency of showing that he was rather a shrewd business man, and had been successful in writing insurance for his company. The statements of fact made in the letter are not, in my view, in any sense libelous. It is true they are misnamed by the epithets used, but the characterization of stated acts does not enlarge or add to the expressly stated facts.

Reference has been made to the word "twisting," which it is claimed by plaintiff is a charge committing a violation of Comp. Laws Utah 1917, § 1166, wherein it is made a misdemeanor for any agent to "make any misrepresentation to any person insured in another company for the purpose of inducing or tending to induce such person to lapse, forfeit, or surrender his said insurance." We cannot take judicial cognizance of such definition of the word "twisting." Even if the word should characterize or name the misdemeanor sought to be defined in section 1166, it is clear from the reading of the letter that there is no charge in the facts stated that plaintiff was guilty of misrepresentation. The plaintiff and his insurance agents are said merely to have made statements of fact and not misrepresentations of fact in their efforts to write insurance for the Beneficial, and this conduct is not condemned by the statute.

Can it be said that the language used "was such as not only as a natural and proximate, but as a necessary, consequence its publication occasioned plaintiff damages?" I do not think so. The letter raises no such presumption. On the question of special damages it is said by appellant in his brief: "There are no allegations of special damages and no innuendos." The rule is stated in 3 Bancroft, Code Pleading, § 1750, p. 2925, as follows:

"Whether the publication alleged be actionable per se or otherwise, special damages must be alleged in every case in order to be recovered. The particulars must be given with precision and certainty and the matters alleged must constitute proper elements of damage. The complaint must show of what special damages claimed consisted and that they were the result of the alleged defamatory publication. It must be made to appear by proper averments how these damages were occasioned by the publication. * * *

"Where loss to plaintiff in his business is sought to be recovered it is not enough to aver generally that in consequence of the publication the plaintiff has been damaged in his business, but the facts showing such damages must be alleged."

It was held in Brown v. Independent Pub. Co., 48 Mont. 374,138 P. 258, 259, that the allegation that "and that his said business has been seriously interfered with, damaged, and injured, and that his credit has been greatly injured in consequence thereof," was not an allegation of special damages. And also in Lemmer v. The Tribune, 50 Mont. 559, 148 P. 338,339, it is said:

"The second count is an attempt to plead special damages on account of loss to plaintiff in his business. Speaking generally, there is no doubt that one may suffer such damages from almost any publication whatever, particularly a publication to the effect that he is dead; but whenever such damages are sought, it is not enough to aver generally that, in consequence of the publication, the plaintiff has been damaged in his business. The facts showing such damages must be alleged or no cause of action is stated. Ledlie v. Wallen, 17 Mont. 150, 42 P. 289; Brown v. Independent Pub. Co., supra; Walker v. Tribune Co. (C.C.) 28 F. 828. No such facts are made to appear in the second count."

In both the last-mentioned cases general demurrers were sustained to the complaints. The allegation of damage is no more specific or eplicit in the instant case than in these two cases.

I think the action of the district court in sustaining the demurrer should be sustained.