Berry v. City of New York Ins. Co.

• Decision Date: 29 November 1923
• Docket Number: 8 Div. 526.
• Parties: BERRY v. CITY OF NEW YORK INS. CO.
• Court: Alabama Supreme Court

98 So. 290

210 Ala. 369

BERRY v. CITY OF NEW YORK INS. CO.

8 Div. 526.

Supreme Court of Alabama

November 29, 1923

Appeal from Circuit Court, Franklin County; Chas. P. Almon, Judge.

Action for libel by T. R. Berry against the City of New York Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

W. L Chenault and Travis Williams, both of Russellville, for appellant.

Coleman Coleman, Spain & Stewart, of Birmingham, and A. H Carmichael, of Tuscumbia, for appellee.

BOULDIN J.

The plaintiff, appellant, sued the appellee for damages resulting from an alleged libel upon the plaintiff. The general affirmative charge with hypothesis was given for defendant, appellee. The means of expression of the libel charged was the following letter, addressed to plaintiff:

"Jacksonville, Fla., July 13th, 1921. Mr. T. R. Berry, Russellville, Ala.-Dear Tom: Loss: No. 20108 Berry. Your wire, also your notice that your furniture had been destroyed, came in due course-adjustment being referred to the Southern Bureau at Birmingham, with request that they give same as prompt attention as possible, as you must need money, otherwise, there would have been no occasion for the fire. They will probably send Cotter up to see you. Please show him a good time. With kindest regards, remain, sincerely, P. H. Hoffman, Special Agent." (Italics supplied.)

This letter was dictated by the defendant's special agent, Hoffman, to a stenographer also in the employ of the defendant. The stenographer put her notes into typewriting. The letter was posted to plaintiff. Its terms were not otherwise disclosed. The alleged libelous matter in the letter is italicized.

A first inquiry is: Is the publication libelous per se? This is to be determined from a reading of the letter itself. The test is: What do its contents import to an unbiased mind of ordinary intelligence? The instrument is to be read as a whole. Newell on Slander and Libel (3d Ed.) §§ 366, 367, 368; Gaither v. Advertiser Co., 102 Ala. 458, 14 So. 788; Easley v. Moss, 9 Ala. 266; Johnson v. Turner, 159 Ala. 356, 47 So. 570; L. & M. R. R. Co. v. Malone, 200 Ala. 380, 76 So. 296.

So reading the letter with a view to ascertain its effect disclosed within its four corners, we note: (1) It is addressed to the person of whom the alleged libelous words are written; not an imputation of crime addressed to a third person or persons. (2) He is addressed as "Dear Tom"-terms of familiarity, if not friendship. (3) "Loss: No. 20108 Berry. Your wire, also your notice that your furniture had been destroyed, came in due course"-the usual acknowledgment of a business communication, identifying the subject-matter of the letter. (4) "Adjustment being referred to the Southern Bureau at Birmingham, with request that they give same as prompt attention as possible"-advice that the writer is attending to the business in hand, along with a personal request for prompt attention. (5) "As you must need money, otherwise, there would have been no occasion for the fire"-the expressed reason for pushing the adjustment and payment of the loss. (6) "They will probably send Cotter up to see you. Please show him a good time"-drawing upon the friendship between the parties to the letter for a friendly courtesy to another. (7) "With kindest regards, remain, Sincerely, P. H. Hoffman, Special Agent"-words never fitting except from friend to friend.

A little further study discloses at least an implied assurance of the writer's desire for a prompt payment of the loss.

"The adjustment of a loss *** is the settling and ascertaining the amount of the indemnity which the insured, after making all proper allowances, is entitled to receive." "'Examination' and 'adjustment' are not convertible terms." Pennsylvania Fire Ins. Co. v. Draper, 187 Ala. 103, 65 So. 923; Liverpool, etc., Ins. Co. v. Tillis, 110 Ala. 212, 17 So. 672.

Used in the ordinary sense employed by insurance men, the request for prompt "adjustment," coupled with the words, "as (because) you must need the money," can only be read as expressing a purpose to help the addressee get his money for the loss.

Now, if we give a literal import to the words, "else there would have been no occasion for the fire," we have Mr. Hoffman charging Mr. Berry with burning his property for the insurance, and at the same time confederating with him to collect it from the insurance company.

If the letter imputes a crime to Mr. Berry, it also imputes to Mr. Hoffman an effort to forward the perpetration of a fraud on his company. The ordinary reader would hardly expect any such purpose set down in a written document. Here, then, is a document utterly at variance in its different parts. Every portion of it shows an intimate, friendly business message, save that portion in which he gives his reason for requesting a prompt adjustment. Instead of claiming a special friendship or business connection as the occasion for special efforts in Mr. Berry's behalf, he throws in the words complained of as libelous. Taken literally, the letter is an enigma.

One of the known forms of libel is a publication cloaked in irony-censure in the guise of praise. Another subtle type is open abuse under color of a jest. Words may be uttered with malicious intent to hurt, while the speaker hides behind a screen of friendly humor. The courts look through all such disguises, and take note of the real imputations of such utterances. Age-Herald Pub. Co. v. Waterman, 188 Ala. 272, 283, 66 So. 16, Ann. Cas. 1916E, 900; Newell on Slander and Libel (3d Ed.) §§ 335, 336, p. 358.

It is none the less true that praise may take the form of censure. Men daily use accusing words toward each other in a spirit of playful, friendly banter. Such is considered the peculiar privilege of intimate friends. When the nature of such accusation, and the manner of publication, is calculated to injure character, it is libelous, although in jest. No other evil motive is necessary than that disregard of the rights of another which will lightly destroy character for amusement. Age-Herald Pub. Co. v. Waterman, 188 Ala. 272, 289, 66 So. 16, Ann. Cas. 1916E, 900; Newell on Slander and Libel (3d Ed.) § 885, p. 888, §§ 387 et seq., pp. 393 to 396.

"The dictation of a libelous letter to a stenographer, who copies it from his notes on a typewriting machine, and the subsequent signing thereof by the person dictating, is a publication of the contents of the letter sufficient to support libel or slander, although there is no communication of its contents to any other person. Gambrill v. Schooley, 93 Md. 48, 48 A. 730, 52 L. R. A. 87, 86 Am. St. Rep. 414." Ferdon v. Dickens, 161 Ala. 181, 187, 49 So. 888, 891.

Appellee insists that the rule above announced has been departed from in recent cases L. R. A. 1918F, 568, 569, note.

It is urged that on occasions of conditional or qualified privilege, we should reconsider or limit the above case. We have given careful thought to the argument. One element of libel is injury to one's good name in the mind of one who reads the libelous document. It is manifest that one who receives a dictation, takes notes, reduces same to typewriting, may be influenced in his or her estimate of the character of a person by libelous matter therein. On principle a man is as much entitled to protection in the esteem of at stenographer as of any one else.

But it is urged that where liability is sought to be fastened upon a principal, which must rest upon an act of the agent, done in the scope of his employment, the dictation of a letter by one agent to another, who transcribes it, must be considered one act, in so far as it affects the...