Emo v. Milbank Mut. Ins. Co.

• Citation: 183 N.W.2d 508
• Decision Date: 29 January 1971
• Docket Number: No. 8652,8652
• Parties: Jerome EMO, Plaintiff and Respondent, v. MILBANK MUTUAL INSURANCE COMPANY, Defendant and Appellant. Civ.
• Court: United States State Supreme Court of North Dakota

Page 508

183 N.W.2d 508

Jerome EMO, Plaintiff and Respondent, v. MILBANK MUTUAL INSURANCE COMPANY, Defendant and Appellant.

Civ. No. 8652.

Supreme Court of North Dakota.

Jan. 29, 1971.

Syllabus by the Court

1. There must be a publication for libel to be actionable. Defamatory matter communicated to a third party is a publication.

2. A defamatory publication is libelous per se when, without the aid of innuendo, it must be presumed to expose the plaintiff to hatred, contempt, ridicule, or obloquy, or cause him to be shunned or avoided, or have a tendency to injure him in his occupation.

3. A qualified privileged communication is usually a good-faith communication wherein the author of the communication has an interest or duty which is public, personal, or private; either legal, judicial, political, moral, or social; and is made to any person having a corresponding duty or interest.

4. Publication to one's spouse of defamatory matter is sufficient to give rise to a cause of action for libel.

5. The insurer, under § 26--02--35, N.D.C.C., cannot publish matter libelous to third parties unless such information is relevant, necessary, or inseparably connected with the qualified privileged communication.

6. For the reasons stated in the opinion, the judgment of the trial court is affirmed.

Hjellum, Weiss, Nerison, Jukkala & Vinje, Jamestown, for defendant and appellant.

Ottmar & Nething, Jamestown, for plaintiff and respondent.

PAULSON, Judge.

This is an appeal from the judgment of the District Court of Stutsman County, North Dakota, in favor of Jerome Emo and against Milbank Mutual Insurance Company (hereinafter called Milbank), a foreign insurance corporation authorized to do business in North Dakota. This is a libel action tried by the district court, sitting without a jury, and Milbank has appealed from the entire judgment, demanding a trial de novo. The facts are not in dispute. Eunice Southwick, an employee of an insurance company, secured an automobile insurance policy with Milbank through her employer, prior to her marriage of Jerome Emo. Subsequently, her employer notified Milbank of her change of name, and Milbank made a routine check of the insured's new husband, Jerome Emo. As a result of this investigation, which was conducted by another company, Milbank wrote to Mrs. Emo, as well as to her employer, and, giving no reason therefor, requested that she surrender her policy to Milbank. The reason for this requested surrender of her policy was not communicated to her employer, even though he had written to Milbank concerning the reason for its request.

On July 31, 1968, Milbank wrote a letter to Mrs. Emo and informed her that her policy was canceled as of August 30, 1968, and Milbank advised her that she had a right to inquire as to the reason for such cancellation. Mrs. Emo then wrote a letter to Milbank and requested the reason for the cancellation of her automobile insurance policy. Subsequently, Mrs. Emo received the following letter from Milbank:

'MILBANK MUTUAL

INSURANCE COMPANY

MILBANK, SOUTH DAKOTA 57252

(Letterhead design omitted)

'August 5, 1968

'Mrs. Jerome Emo

P.O.Box 916

Jamestown, North Dakota

'POLICY #620496

MRS. JEROME EMO

'I have received your letter of August 1 regarding the reasons for concellation of the above mentioned policy. Under the provisions of House Bill #914 I am setting forth the same in the paragraph directly below.

'In checking our file I find that Jerome Emo was charged with stealing from the mail trains. I trust that this gives you the information you desire.

'(signed) David Dorsett

'David Dorsett

'Casualty Underwriting Department

'dp'

The information that Jerome Emo had been charged with the above-mentioned crime was entirely false. However, Milbank did not know that the information was false until after this action had been commenced. Thus no retraction statement was ever published.

The relevant North Dakota statutes are as follows:

14--02--01, N.D.C.C. 'General personal rights.--Every person, subject to the qualifications and restrictions provided by law, has the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations.'

14--02--03, N.D.C.C. "Civil libel' defined.--Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.'

14--02--05, N.D.C.C. 'Privileged communications.--A privileged communication is one made:

'1. In the proper discharge of an official duty;

'2. In any legislative or judicial proceeding, or in any other proceeding authorized by law;

'3. In a communication, without malice, to a person interested therein by one who also is interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or who is requested by the person interested to give the information; and '4. By a fair and true report, without malice, of a judicial, legislative, or other public official proceeding, or of anything said in the course thereof.

'In the cases provided for in subsections 3 and 4 of this section, malice is not inferred from the communication or publication.'

26--02--02, N.D.C.C. "Insurer' and 'insured' defined.--The person who undertakes to indemnify another by a contract of insurance is called the insurer, and the person indemnified is called the insured.'

26--02--04, N.D.C.C. 'Insurable interest essential to insurance contract.--The sole object of insurance is the indemnity of the insured, and if the insured has no insurable interest, the contract is void.'

26--02--33, N.D.C.C. 'Automobile insurance--Cancellation--Notice and reasons therefor.--No contract of automobile liability insurance delivered or issued for delivery in this state and insuring a private passenger automobile which has been in effect for sixty days or more shall be terminated by concellation except for nonpayment of premium, unless the insurer mails or delivers to the named insured at the address shown in the policy, a notice in writing at least thirty days prior to the effective date of cancellation of the intent of the insurer to cancel the insured's policy. Said notice shall contain or be accompanied by a statement that upon written request of the named insured mailed or delivered to the insurer not less than ten days prior to the effective date of cancellation or nonrenewal, the insurer will specify the reason or reasons for such cancellation or nonrenewal.'

26--02--35, N.D.C.C. 'Nonliability of parties.--The specific reason for cancellation or nonrenewal which is furnished to the insured, shall not constitute grounds for any cause of action against the insurer or his authorized representative, or its agents or employees, or any firm, person or corporation who in good faith furnishes to the insurer the information upon which the reasons for cancellation or nonrenewal are based.'

26--07--14, N.D.C.C. 'Additional grounds for revocation of authority of foreign company--Procedure--Effect of revocation.--The commissioner of insurance shall revoke or suspend all certificates of authority granted to a foreign insurance company or to its agents, and shall cause notification thereof to be published once in each week for three successive weeks in some newspaper published at the seat of government, if, upon examination or other evidence, he is of the opinion that:

'1. * * *

'2. Such company has failed to comply with any provision of the laws of this state applicable thereto;

'3. Such company, or any officer or agent thereof, has refused to submit to examination or to perform any legal obligation imposed thereon; * * *.'

In the case at bar there are three issues:

1. Was the letter published?

2. Was the letter a privileged communication, either absolute or qualified?

3. Was the information contained therein libelous per se?

There must be a publication for libel to be actionable. Allegedly defamatory matter communicated to a third party is a publication. Dvorak v. Kuhn, 175 N.W.2d 697 (N.D.1970). In paragraph 3 of the syllabus for Rickbeil v. Grafton Deaconess Hospital, 74 N.D. 525, 23 N.W.2d 247 (1946), this court held that a libel is published when a libeler intentionally allows it to be read by one other than the defamant. Thus, in the case at bar, there was a publication to Mrs. Emo, the addressee of the letter, who was a third party, and a party other than the defamed.

In paragraph 3 of the syllabus in Murphy v. Farmers Educational & Cooperative Union, 72 N.W.2d 636 (N.D.1955), and in paragraph 3 of the syllabus in Ellsworth v. Martindale-Hubbell Law Directory, 66 N.D. 578, 268 N.W. 400 (1936), this court defined libel per se as follows:

'A defamatory publication is libelous per se when without the aid of innuendo it must be presumed to expose the plaintiff to hatred, contempt, ridicule, or obloquy, or cause him to be shunned or avoided, or have a tendency to injure him in his occupation.'

Milbank has cited a North Dakota case, Stafney v. Standard Oil Co., 71 N.D. 170, 299 N.W. 582 (1941), and has attempted to place it on all fours with the instant case. In the Stafney case, Supra, Mr. Stafney sought to recover damages for an alleged libel. He alleged that Standard Oil Company had filed a statement with the North Dakota Workmen's Compensation Bureau as required by law; and he further alleged that this statement contained libelous material in its reference to Mr. Stafney. The jury returned a verdict in favor of Standard Oil Company, and Mr. Stafney made a motion for a new trial. Standard Oil Company appealed from the order granting the motion for a new trial. This Court reversed the order granting the new trial and ordered the action dismissed. The first six paragraphs of the...