Carter v. Willert Home Products, Inc.

• Decision Date: 15 July 1986
• Docket Number: No. 67893,67893
• Citation: 714 S.W.2d 506
• Parties: Roberta CARTER, Respondent, v. WILLERT HOME PRODUCTS, INC., Appellant.
• Court: Missouri Supreme Court

Page 506

714 S.W.2d 506

Roberta CARTER, Respondent, v. WILLERT HOME PRODUCTS, INC., Appellant.

No. 67893.

Supreme Court of Missouri,

En Banc.

July 15, 1986.

Rehearing Denied Sept. 16, 1986.

Joseph H. Mueller, Robyn Greifzu Fox, John H. Quinn, III, St. Louis, for appellant.

Larry W. Glenn, St. Louis, for respondent.

ROBERTSON, Judge.

Defendant appeals from the judgment of the trial court, entered on a jury verdict, awarding plaintiff $12,000 actual damages and $35,000 punitive damages on her petition for slander. The Court of Appeals, Eastern District, issued its opinion affirming the judgment, but ordered the cause transferred on the basis of a perceived conflict with Rauch v. Gas Service Company, 241 Mo.App. 976, 235 S.W.2d 420 (1950). We have jurisdiction pursuant to Mo. Const. art. V, § 10. We affirm the judgment of the trial court.

In the point on which transfer was ordered, defendant urges that the trial court erred in failing to direct a verdict at the close of plaintiff's case, in that plaintiff failed to demonstrate the existence of "special damage," as required in suits for slander which are not actionable per se. Alternatively, defendant contends that the actual damage award should be reduced to a nominal amount, since there was no proof upon which to base an evaluation of that damage for which recovery is permitted in suits of this nature. The premise of this latter argument is that plaintiff was not entitled to recover damages for mental suffering and humiliation, this being a slander not actionable per se.

I.

In reviewing an order denying a motion for directed verdict, the evidence is to be viewed in the light most favorable to the party against whom the motion was made. In Re Estate of Passman, 537 S.W.2d 380, 385 (Mo. banc 1976); Mann v. United Missouri Bank of Kirkwood, 689 S.W.2d 830, 831 (Mo.App.1985).

Plaintiff was hired by defendant in July, 1977, as a packer and was employed by defendant until the Fall of 1981. In mid-October, 1980, she received a three-day disciplinary layoff, during which period she contacted Civic Finance Company by telephone about obtaining a $500 loan for home repairs. Civic Finance, a company involved in making small consumer loans, had loaned plaintiff money in her own name on three or four previous occasions. Civic Finance had not made a loan to plaintiff since her marriage in December, 1979 nor had it previously loaned money to plaintiff's husband.

Donna Ryan, the assistant manager of Civic Finance Company in 1980, testified at trial that her duties included investigating and verifying credit applications. She stated that her daughter, Michelle Ryan, was employed by Civic Finance as a "cashier-clerk" and often handled "basic verification" which included contacting applicants' employers. She also identified an employment verification form pertaining to plaintiff, and stated that the handwriting on it was Michelle's. The form contained a "yes" response in regard to "suits, credit complaints", and a notation which read "spoke to Edna Baines."

Because Donna Ryan believed plaintiff to be "an excellent paying customer and very, very fine lady", she was "totally shocked" by the information on the form. She called defendant and asked to speak to Edna Baines. She was informed that there was no Edna Baines employed by defendant, and was put in contact with Edna Raines. She testified that she was told by Ms. Raines that plaintiff had "credit complaints", as well as "judgments and garnishments" against her, was on disciplinary layoff and "would probably be fired." Donna Ryan then obtained a credit report on plaintiff and called Landmark Bank, where plaintiff had an automobile loan account. Those inquiries indicated that plaintiff had an "excellent payment history" and that the loan account at Landmark was "in excellent condition."

After this verification process she called plaintiff and "told her what they had said at Willert." Donna Ryan testified that plaintiff was "speechless, practically. And she started crying. And she said that [those] things were not true." However, Ms. Ryan informed plaintiff that "under the circumstances ... [she] could not extend her any further money."

Plaintiff testified that after this conversation she went to the Civic Finance office. She further stated:

I felt really embarrassed, ... I felt hurt and I felt humiliated.... because I had worked hard to build my credit to where it was, and for somebody to just say, you know,--to just take it away, to me it seemed like it was just gone down the drain, and to know that my employer would do this behind my back, give out this type of information, that wasn't true.

A loan was eventually made jointly to plaintiff and her husband. Including previous loan balances and insurance charges, the amount financed totaled $1,204.67, of which $580 represented the amount of new cash disbursements. Finance charges brought the total owed to $1,720.44. Donna Ryan testified that plaintiff certainly would have qualified for a $1,200-$1,300 loan in her name alone, had it not been for the information obtained from defendant.

Sandra Rosen, President of Civic Finance, stated at trial that although the company generally required co-signers on loans greater than $1,000, there was no such formalized policy. Prior experience with a customer was an important factor. Ms. Rosen considered plaintiff a "fine credit risk" and stated that "she had established her own credit." Ms. Rosen testified further that based upon her knowledge of and business dealings with plaintiff, plaintiff could have qualified for a $1,200-$1,300 loan in her own name. Plaintiff testified that when she inquired as to why her application was rejected, Ms. Rosen told her that a co-signer was necessary because of the information received from defendant. Plaintiff would not have needed a co-signor if Civic Finance had not obtained the information from Edna Raines about plaintiff's credit problems.

Edna Raines also testified for plaintiff at trial. She stated that in October, 1980, she was defendant's plant secretary. As part of her job duties she handled employment verification requests over the telephone. Ms. Raines denied having said anything to Civic Finance regarding garnishment, judgments, or credit companies against plaintiff, and said she had no such knowledge.

At the close of plaintiff's evidence defendant moved for a directed verdict, which the trial court denied. Defendant's only witness was Susan Hantak, the Vice-President and Controller of Willert Home Products. She testified that information regarding garnishments could be obtained only from her. Written authorization from the employee was required. She also stated that additional credit information was never released.

II.

In the early history of slander, as an oral defamation, jurisdiction of the cause fell upon the ecclesiastical courts. Prosser, Libel Per Quod, 46 Va.L.Rev. 839, 841 (1960). As a result, and in contrast to the treatment of libel, the common law courts refused to countenance actions for slander unless some "temporal" damage could be shown, it otherwise being a matter for the spiritual authorities. Id. As a result, the common law limited actionable slander to two instances: those in which plaintiff could prove a pecuniary loss, and those in which such a loss could be conclusively presumed. Id. This latter class of cases, which came to be known as slander per se, ¹ included allegations that the plaintiff was guilty of a crime, was stricken with a loathsome disease or was unchaste (in the case of a woman), or which affected the plaintiff in his business or occupation. Id.; Brown v. Kitterman, 443 S.W.2d 146, 153 (Mo.1969).

The requisite "special damage," as it has become known, in the remaining class of cases has been said to consist of "such items as a lost contract, sale or other valuable item." Williams v. Gulf Coast Collection Agency Company, 493 S.W.2d 367, 370 (Mo.App.1973) (addressing special damage in an action for libel per quod ). Similarly, it has been stated that

The special damages necessary to support an action for defamation, where the words are not actionable in themselves must be the loss of money, or of some other material temporal advantage capable of being assessed in monetary value. [Citations omitted.] The loss of a marriage, of employment, of income, of profits, and even of gratuitous entertainment and hospitality will be special damage if the plaintiff can show that it was caused by the defendant's words; but not mere annoyance or loss of peace of mind, nor even physical illness occasioned by the defamatory charge.

Mell v. Edge, 68 Ga.App. 314, 22 S.E.2d 738, 739 (1942) [quoting Odgers, Libel and Slander, 378 (5th ed.) ]; see also Restatement (Second) of Torts § 575, Comment (b) (1977) ("the loss of something having economic or pecuniary value"); Matherson v. Marchello, 100 A.D.2d 233, 473 N.Y.S.2d 998, 1000 (1984) [quoting Comment (b) ]. Sufficient special damage to make a non-per se slander actionable has been found where the plaintiff alleged the loss of a particular sale of property to particular parties, notwithstanding the difficulty of placing a value on such a loss. Privitera v. Town of Phelps, 79 A.D.2d 1, 435 N.Y.S.2d 402, 406 (1981).

In the present case, plaintiff has proven sufficient special damage by showing that she was deprived of the benefit of an impending agreement with Civic Finance to obtain a loan without the additional security of a co-obligor. While no evidence of the value of this contractual term was offered, its loss was a temporal damage, capable of being given a value in money. This conclusion is not altered by the fact that plaintiff ultimately obtained the contemplated loan. The finance company rejected her loan application and made the loan only after additional security was provided.

Nor is the conclusion affected by evidence, as pointed to by defendant, that Civic Finance maintained a general...