Bohlinger v. Germania Life Insurance Company

• Decision Date: 23 October 1911
• Parties: BOHLINGER v. GERMANIA LIFE INSURANCE COMPANY
• Court: Arkansas Supreme Court

140 S.W. 257

100 Ark. 477

BOHLINGER v. GERMANIA LIFE INSURANCE COMPANY

Supreme Court of Arkansas

October 23, 1911

Appeal from Pulaski Circuit Court, Second Division; F. Guy Fulk Judge; affirmed.

Judgment affirmed.

J. W Blackwood and J. W. Newman, for appellant.

1. The statements complained of in the letter to Powell & Doyle are libelous per se. 18 Am. & Eng. Enc. of L. 861; Kirby's Dig., § 1850; 18 Am. & Eng. Enc. of L. 909; Id 941-942; 9 L. R. A., 621, note, and cases cited; 4 Ark. 110; 72 Ark. 421; 98 F. 222.

2. Appellee is liable to the same extent as if it were the sole author of the statements. 18 Am. & Eng. Enc. of L. 1048; Id. 1013-1014; 169 Mass. 512; 25 Cyc. 369; 98 F. 222, 39 C. C. A. 19; Townshend, Slander and Libel, § 158; 6 Cush. 71; 33 Minn. 66-68, 21 N.W. 862; 55 Mich. 224, 21 N.W. 324, 54 Am. Rep. 372.

3. The communications were not privileged. 59 F. 540; 25 Cyc. 386; 18 Am. & Eng. Enc. of L. 1038; 152 Mo. 268; 52 S.W. 912, 47 L. R. A. 859; 173 F. 22, 97 C. C. A. 334; 84 Va. 890, 6 S.E. 474; 98 F. 222, 39 C. C. A. 19; 77 Ark. 64, 72.

4. The case should have gone to the jury. The court should have instructed the jury as to the law in regard to qualified privilege, and left it to them to say how far the privilege extended, and whether or not the privilege was forfeited or lost by reason of its abuse. And whether or not all portions and publications of the statements were privileged was a question for the jury. 129 N.W. 674; 61 Minn. 137, 144, 63 N.W. 615; 134 S.W. 1093; 47 L. R. A. 483, 486; 130 Va. 504, 49 S.E. 644. It was also for the jury to say, from the manner, tone and surrounding circumstances, whether or not any clearly privileged communication was malicious. 5 Words and Phrases, 4299; Id. 4302; 18 Am. & Eng. Enc. of L., (2 ed.) 1050, 1051; 56 Ark. 94, 97.

W. H. Pemberton, for appellee.

1. The communication was privileged. 25 Cyc. 398; Id. 385; Id. 397; 23 Fla. 595; 3 So. 211; 18 Am. & Eng. Enc. of L. 1038; 10 C. B. 583; 7 E. C. L. 583; 100 N.C. 397; 47 W.Va. 766, 35 S.E. 873; 121 Ga. 241, 48 S.E. 934; 45 Mich. 484; 44 S.W. 580, 18 Tex. Civ. App. 296; 78 Minn. 289, 79 Am. St. Rep. 387; 74 N.Y.S. 561, 68 A.D. 141; 132 N.C. 172; 42 S.W. 607; 13 L. R. A. 655; 47 L. R. A. 483.

2. The privilege was not lost because the communication was seen by the confidential clerk and stenographer of Powell & Doyle. 25 Cyc. 387; 50 N.J.L. 275; 13 Allen 239; 105 Mass. 395; 99 N.W. 847; 78 Minn. 289; 39 F. 672.

3. Malice is an essential element of libel; and where the communication is privileged, the presumption of malice is rebutted and the burden of proving it is on the party alleging it. 47 L. R. A. 485; 111 Pa. 414, 56 Am. Rep. 274; 66 Mich. 166; 88 Me. 521, 34 A. 411; 116 Ga. 855, 43 S.E. 262; 25 Cyc. 412; 99 N.W. 847; 42 S.W. 607; 103 Va. 504, 49 S.E. 644; 47 W.Va. 766; 10 C. B. 583; 66 Mich. 166; 30 N.Y. 20; 25 Wend. 448.

4. In directing a verdict for defendant, the court acted within its province. 25 Cyc. 547; 164 Mo. 289; 93 S.W. 1033; 103 S.W. 374; 83 Ky. 375; 121 Mich. 536; 121 N.Y. 203; 116 N.Y. 211; Townshend, Slander and Libel, § 288.

OPINION

FRAUENTHAL, J.

This was an action instituted by A. Bohlinger to recover damages for the alleged publication of a libel. The suit was originally brought against the Germania Life Insurance Company, the Retail Credit Company and John F. Clifford. The cause abated as to the Retail Credit Company for failure to obtain service of summons upon it, and was dismissed on the motion of plaintiff as against the last-named defendant. The remaining defendant pleaded that the alleged libel was a privileged communication. Upon the trial of the case, the court directed a verdict in favor of the defendant after all evidence had been introduced by both parties to the suit. From this action of the court the plaintiff has appealed.

The Germania Life Insurance Company was a foreign corporation, domiciled in the State of New York, and was engaged in the life insurance business. It had managers or general agents located in the large cities of various States of the Union, amongst whom were Powell & Doyle, who resided at Little Rock. In the prosecution of the business of the Life Insurance Company, these general agents had authority to employ soliciting agents, whose employment was subject to the approval of the Life Insurance Company at its principal office in the city of New York. In the conduct of its business, the Life Insurance Company had medical examiners, one of whom was Dr. Chester Jennings, who was located at Little Rock. The Retail Credit Company was engaged in the business of investigating the character and condition of various people, and especially of persons seeking life insurance and employment as insurance agents, and of furnishing reports thereon. The Credit Company had engaged said Clifford, who resided at Little Rock, as one of its agents to make such investigations and reports thereon.

About the 10th day of March, 1910, the defendant issued to plaintiff a life insurance policy for $ 5,000 upon application made by him, under the terms of which it was subject to cancellation within one year after its execution, in event any false statements had been made by said insured in his written application for the policy. About the same time the plaintiff was employed by Powell & Doyle as a soliciting agent for defendant, subject to the right of a cancellation of his appointment by said defendant or by said Powell & Doyle. The defendant had, for a number of years, employed said Retail Credit Company to investigate the character and condition of persons obtaining policies from it and of its agents and also to make reports thereon to it. The Retail Credit Company was doing this character of business throughout the United States, and was considered as perfectly reputable and reliable. The reports furnished by it were obtained by the Insurance Company in good faith and solely for the purpose of advising defendant relative to inquiries made of it in order to properly conduct its life insurance business. A few days after the issuance of the policy to plaintiff and his appointment as such soliciting agent, the defendant mailed to the Retail Credit Company two inquiries in reference to the plaintiff, one relating more especially to his condition as an insurance risk and the other to his qualifications as a life insurance agent. In reply, the Retail Credit Company made to the defendant the following report relative to plaintiff: "Applicant was years ago a man of prominence; railroad official, and was on the road to swift advancement; careless and negligent conduct caused his downfall; not so many years ago he returned to the service as a telegrapher and caused a bad wreck by an oversight. Has been writing insurance and running a small telegraph school on and off for years. Years back he had the reputation of paying too much attention to his lady acquaintances, but nothing has been heard along these lines for the last few years. Do not think he takes a drink very often, and know that he does not drink habitually. Has a rather bloated look and peculiar puffs around his eyes. Think this would prevent the risk being first-class. He has a fine family, mostly grown, and their reputation is very good. Has not been very prosperous in recent years; risk could not be classed more than good if successful physical examination can be passed."

On April 4, 1910, defendant mailed this report to its medical examiner, Dr. Jennings, in a letter which it marked "strictly confidential," and also to its agents, Powell & Doyle. In the letter accompanying this report, it stated to Dr. Jennings that it had issued the policy to plaintiff, whom he had examined and recommended as a first-class risk, and, on account of his and its interest in the matter, it desired an expression of opinion regarding the statements in the report. In its letter to Powell & Doyle, it stated that it was strictly confidential, and that it sent the report because of their interest in the matter and asking to hear from them relative thereto. Dr. Jennings and Powell & Doyle wrote to defendant that the statements in the report were not true. Acting upon these letters, defendant abandoned further inquiry relative to plaintiff and permitted his policy to remain in force and his appointment as soliciting agent to continue until the institution of this suit. It appears that, upon receipt of the above report, Powell & Doyle and Dr. Jennings showed it to plaintiff on account of their long acquaintance with him and warm friendship for him. But, according to the evidence, no other person saw the report except a stenographer in the office of Powell & Doyle, who only saw it incidentally. The evidence adduced upon the trial further proved that both Dr. Jennings and Powell & Doyle were interested in the matter set forth in said report. All the statements were material in determining whether or not plaintiff was a proper risk for life insurance, and Dr. Jennings testified that, if any of the statements in the report were true, he would not have recommended the acceptance of the plaintiff's application for life insurance if he had obtained the knowledge thereof before such recommendation, and would have advised its cancellation after its issuance upon obtaining such knowledge. The statements in the report were also material to Powell & Doyle in determining whether they would appoint and retain plaintiff as a soliciting agent. They testified that, if the statements had been true, they would not have appointed him, had they known of them, and would have cancelled his appointment after obtaining such knowledge.

Counsel for defendant does not contend that the statements made in said report concerning the plaintiff are not of a libelous...