M. Rosenberg & Sons Inc v. Craft

• Citation: 182 Va. 512,29 S.E.2d 375
• Court: Supreme Court of Virginia
• Decision Date: 13 March 1944
• Parties: M. ROSENBERG & SONS, Inc. v. CRAFT.

29 S.E.2d 375

182 Va. 512

M. ROSENBERG & SONS, Inc.

v.CRAFT.

Supreme Court of Appeals of Virginia.

March 13, 1944.

[COPYRIGHT MATERIAL OMITTED]

Error from Court of Law and Chancery for City of Roanoke; Beverley Berkeley, Judge.

Action by James Lewis Craft against M. Rosenberg & Sons, Inc., trading as Oak Hall, for libel and insulting words. Judgment for plaintiff, and defendant brings error.

Reversed, and final judgment for defendant.

Before CAMPBELL, C. J., and HUD-GINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

Moss A. Plunkett and Arnold Schlossberg, both of Roanoke, for plaintiff in error.

T. W. Messick and Walter H. Scott, both of Roanoke, for defendant in error.

HUDGINS, Justice.

James Lewis Craft, the plaintiff, was an employee of the Radford Ordnance Works, Radford, Virginia. M. Rosenberg and Sons, Inc., the defendant, conducted a mercantile business under the trade name of Oak Hall in Roanoke, selling its merchandise on the installment plan. Craft had been a debtor of defendant but, on March 6, 1942, had paid his account in full. D. E. Thompson, a brother-in-law of Craft, bought a suit of clothes for $27.50 from defendant. He paid $5 in cash and promised to pay $2 a week until the debt was liquidated. Thompson, instead of having the charge made in his own name, had it entered on the books of defendant in the name of J. Lewis Craft. On April 9, 1942, Craft, in response to a dunning letter from Rosenberg & Sons, stated to them that he did not owe the $18 then claimed to be due. An examination of the original sales slip revealed that the merchandise was bought by Thompson. Upon ascertaining this fact, defendant made the following notation upon its books: "Thompson employed also Lindsey Robinson. Will be in 4-15-42 sure 4-14-42 D. E. Thompson, Bro-in-law, bought mdse. on acc. without permission--has done this several times.--J. L. Craft says positively sell no one but himself and wife. Published public notice."

This was the status of accounts between the parties on October 13, 1942, when defendant wrote the Radford Ordnance Works the following letter:

"Please advise if you have in your employ a Mr. James Lewis Craft formerly employed with the Lindsey-Robinson Co, of Roanoke, Va, and residing at Route 1, Salem, Va.

"We are informed by his former employer that he is employed with your Company. The reason we are trying to locate this man is that he owes us a balance of 16.00 on account, which amount is long past due."

The service superintendent of the Radford Ordnance Work acknowledged the letter from Rosenberg & Sons and sent Craft the following memorandum:

"We are today in receipt of a letter from Oak Hall, Roanoke, Va, stating that your account of $16.00 with them is long past due. Letters of this kind are very annoying to this Company and we trust you will see fit to get in touch with Oak Hall and make immediate arrangements to take care of this account before they find it necessary to start legal action against you."

When Craft received this memorandum from his employer, he took it to Rosenberg & Sons, who made the following notation on the bottom of the memorandum slip:

"This account in the name of James Lewis Craft is not owed by said James Lewis Craft. The merchandise was bought by his brother in law Mr. D. E. Thompson. Our object in locating Mr. Craft was to find out from him where we could locate Mr. Thompson."

Craft instituted this action by notice of motion against M. Rosenberg & Sons, Inc. The notice contains a count of common law libel and a count of insulting words under the statute. The jury returned a verdict for $400, on which the trial court entered judgment. From that judgment the defendant obtained this writ of error.

The petition and record present four main questions to be determined--(1) Whether the words, at common law, are actionable per se; (2) whether special damages were sufficiently alleged and proven to submit this issue to the jury; (3) whether the letter upon which the action is based is a privileged communication, and (4) whether the evidence is sufficient to sustain a verdict for plaintiff under the count for insulting words.

The defamatory words set forth in the letter of October 13, 1942, are: "The reason we are trying to locate this man is that he owes us a balance of 16.00 on account, which amount is long past due."

The common law rule divides false, defamatory words which will sustain an action into five classes: "1. 'Words falsely spoken of a person which impute to the party the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished. 2. Words falsely spoken of a person which impute that the party is infected with some contagious disease, where if the charge is true, it would exclude the party from society. 3. Defamatory words falsely spoken of a person which impute to the party unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment. 4. Defamatory words falsely spoken of a party which prejudice such party in his or her profession or trade. 5. Defamatory words falsely spoken which though not in themselves actionable, occasion the party special damage.' The first four of these classes are slanderous per se, the other only when special damage results." Burks PL & Pract, 3d Ed., § 165. See Powell v. Young, 151 Va. 985, 997, 144 S.E. 624, 145 S.E. 731; Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308; Newell on Slander and Libel, 4th Ed., pp. 833, 834; 4 Minors Inst., 1st Ed., 378 et seq.

There is no suggestion or imputation of dishonesty, insolvency or bankruptcy in the letter. It is not alleged that the plaintiff was a merchant or trader, or that he was engaged in an employment in which credit was an essential element. The alleged defamatory words do not tend to impair, nor are they, in any way, related to, the manner of the performance of the duties of plaintiff's employment. The common law rule applicable is that the false defamatory words are not actionable per se. See Hudson v. Slack Furniture Co., 318 Ill.App. 15, 47 N.E.2d 502; Harrison v. Burger, 212 Ala. 670, 103 So. 842; Estes v. Sterchi Bros. Stores, Inc., 50 Ga.App. 619, 179 S.E. 222; Douglas v. Weber, 106 Misc. 338, 174 N.Y.S. 486; Keating v. Conviser, 127 Misc. 531, 217 N.Y.S. 117; Porak v. Sweitzer's, Inc., 87 Mont. 331, 338, 287 P. 633; Hamilton v. McKenna, 95 Kan. 207, 147 P. 1126, L.R. A.1915E, 455; Stannard v. Wilcox & Gibbs Sewing Machine Co., 118 Md. 151, 84 A. 335, 42 L.R.A., N.S., 515, Ann.Cas. 1914B, 709; Nichols v. Daily Reporter Co., 30 Utah 74, 83 P. 573, 3 L.R.A., N.S., 339, 116 Am.St.Rep. 796, also reported in 8 Ann.Cas. 841.

A clear statement of the principle applicable is found in 33 Am.Jur. § 60: "As respects a charge of failure to pay debts, without any imputation of insolvency, it seems to be settled that a writing containing the mere statement that a person who is not a trader or merchant, or engaged in any vocation wherein credit is necessary for the proper and effectual conduct of his business, owes a debt and refuses to pay, or owes a debt which is long past due, is not libelous per se and does not render the author or publisher of such statement liable without proof of special damages. Such a statement does not in a legal sense necessarily expose the person of whom it is said to public hatred, contempt, or ridicule, nor does it degrade him in society, lessen him in public esteem, or lower him in the confidence of the community: "

It follows that the trial court committed reversible error when it instructed (Instruction A ¹) the jury that the words were actionable per se.

Defendant did not demur to the common law count in the notice of motion on the grounds that the false defamatory words were not actionable per se and that no special damages were alleged, but it did object to the introduction of any evidence tending to prove special damages. The precise question thus raised is whether the allegation and testimony are sufficient to sustain an instruction authorizing the jury to award plaintiff damages "for any loss or injury to his business, or occupation, " as stated in instruction E.

The allegation is in general terms and concludes: "By reason of the premises aforesaid, the plaintiff has been greatly injured in his said employment." Neither the specific duties that the employer required the plaintiff to perform nor the particular damages which he suffered were alleged or proven. James v. Haymes, 160 Va. 253, 168 S.E. 333.

The only evidence on the issue is the testimony of plaintiff himself. On direct examination, he stated that he "had one of the best jobs in the plant, 83 cents an hour, and I was transferred and cut back to 78 cents an hour, which I quit on the 27th of December." On cross and redirect-ex-aminations, he said he was cut back to 67 cents an hour on December 20. The difference in compensation, whether 5 cents an hour or 16 cents an hour, was a substantial loss, and, if defendant's letter was the direct and proximate cause of this loss, it should be compelled to compensate the plaintiff for the reduction in his earnings.

"Special damages are such as in fact have actually occurred as the result or consequence of the injury complained of, and not implied by law. They are either superadded to general damages arising from the act injurious in itself, as where some particular loss arises from the uttering of slanderous words actionable in themselves; or such as arise from an act indifferent and not actionable in itself, but injurious only in its consequences, as where words become actionable only by reason of special damage ensuing.

"Special damages must always be the legal and natural consequence arising from the defamation itself, and not a mere wrongful act of a third person. Whenever special damages are claimed, in or der to prevent a surprise on the defendant, which might otherwise ensue at the...