Fennell v. G. A. C. Finance Corp. of Baltimore No. 3

• Decision Date: 07 April 1966
• Docket Number: No. 138,138
• Parties: Robert T. FENNELL v. G. A. C. FINANCE CORPORATION OF BALTIMORE NO. 3 t/a G. A. C. Finance Corporation.
• Court: Maryland Court of Appeals

Page 209

242 Md. 209

218 A.2d 492

Robert T. FENNELL v. G. A. C. FINANCE CORPORATION OF BALTIMORE NO. 3 t/a G. A. C Finance Corporation.

No. 138.

Court of Appeals of Maryland.

April 7, 1966.

Samuel D. Hill, Baltimore (Buckmaster, White, Mindel & Clarke and Michael M. Maslan, Baltimore, on the brief); Everett L. Buckmaster and Samuel D. Hill, Baltimore, for appellant.

George Psoras and Hyman Ginsberg, Baltimore (Ginsberg & Ginsberg, Baltimore, on the brief), for appellee.

Argued Feb. 4, 1966 Before HAMMOND, HORNEY, MARBURY, BARNES and Mc,WILLIAMS, JJ.

Reargued March 9, 1966 Before HAMMOND, HORNEY, MARBURY, OPPENHEIMER, BARNES, and McWILLIAMS, JJ., and J. DeWEESE CARTER, Special Judge.

McWILLIAMS, Judge.

In this libel suit the verdict of the jury was in favor of the appellant (Fennell) against the appellee (GAC). The damages came to $40,000, $35,000 of which was styled 'punitive,' the balance 'compensatory.' Four months later (5 March 1965) the trial judge granted GAC's motion for a judgment N.O.V. Fennell appealed. While there are a number of subsidiary matters to be considered we shall be concerned principally with Judge Byrnes' reason for granting GAC's motion. ¹ He said that 'although * * * (the libelous matter) could well be morally and ethically reprehensible it is not, in this court's opinion, actionable per se.'

Fennell was discharged (honorably) from the Air Force in 1952. He was 22 years old at the time. He drifted from one job to another until December of 1960 when he was employed as a salesman by The Jerome Apple Company and The Apple and Bond Company of Baltimore. The former is the general agent of the life insurance department of The Travelers Insurance Companies; the latter are general agents for Travelers' Casualty, Indemnity, Fire and Marine departments.

Although his education was limited and he seems to have had no special skills, he was not without some experience in the insurance business. He was given a drawing account of $125 per week. Although the first few months were disappointing, the sales manager felt (in April) he 'would make a good career agent.' Having a wife and five children to support, Fennell considered this to be the 'best job of his career.'

Early in April 1961 the sales manager told Fennell that he had been 'taken off of the draw' which meant that he would no longer receive an advance of $125 per week. He explained to Fennell that he had not sold enough insurance to justify continuing the advance. Fennell testified he 'wasn't fully aware that * * * (he had been) hired strictly to sell life insurance and casualty on the side * * *.' He expressed doubt that he could get along 'without some money coming in' so it was agreed that he would receive in cash commissions on any new business he produced. Otherwise his commissions would be retained and applied against the 'draw' he had already received. In the next two weeks he 'went out and sold close to $200,000 worth of life insurance.' He said he 'really concentrated on the life, instead of the casualty.'

In June 1960 Fennell had borrowed from GAC $1,160 which he agreed to repay at the rate of $58.00 per month. He had borrowed money (which seems to have been repaid) from GAC on a number of previous occasions. He was behind in his payments when he went to work for Travelers, a circumstance he had disclosed to his new employer. Fennell said 'they knew my complete history, when I went to work there.' Early in 1961 GAC allowed him to pay interest to date together with some sort of a penalty, and as a result his note became 'current' instead of 'overdue.'

He was again unable to make the full monthly payments. Late in March the manager (James C. Chambers) telephoned Fennell and asked him if he 'was going to come in and make a payment that day.' (He had paid $10.00 on 10 March and $15.00 on 23 March.) Fennell replied he 'couldn't possibly come in and make a payment that day, because * * * (he) only had a few dollars.' Chambers said 'he was going to get that payments one way or the other' and that he was going to send a man around 'to speak to * * * (his) boss.' Fennell said, 'If you do that, it's going to cost me my job.' According to Fennell, Chambers replied that 'he never cared if I worked again' and that 'as far as he could see, I would never get a job anywhere.' (Emphasis supplied.) About fifteen minutes later a man from GAC (not Chambers) did come to the office. He asked for Mr. Brown, the president, but Fennell fobbed him off on the sales manager (Mr. Hooper) because Hooper was aware of his problems and he was afraid that if the GAC man got in to Mr. Brown 'the job would be gone.' Whatever hooper said or did was effective. There is no evidence that Brown ever learned of the visit.

Despite the fact that he was now without regular income Fennell continued his struggle to sell enough insurance to support his wife and family. He was not spectacularly successful but it appears he was making some progress. He sold a number of policies which the company, for one reason or another, had to decline but, as Mr. Brown put it, 'I would say it's (Fennell's) an average record for a man who is new in the insurance business; you're going to have policies taken with the zeal of trying to write business that a more experienced man would not take; and I would say it's an average.'

On 18 May Chambers dictated and caused to be mailed to Travelers, with copies to Mr. Brown and Fennell, the following letter:

'Traveler's Insurance Company

Harford (sic)

Connecticut

RE: FENNELL, Robert C. (T.)

Apple and Bond Incorporated

1 E. Redwood Street

Baltimore 1, Maryland

'Gentlemen:

'It has been brought to our attention that a letter directed to you might bring about a satisfactory settlement of the long overdue indebtedness of the above. Mr. Fennell signed a Promisory (sic) Note with our company on June 1, 1960 in the amount of $1160.00. This loan was contracted to be repaid over a period of twenty months at $58.00 a month.

'There remains as of this date an unpaid balance of $1082.10 with no payments having been received since March 23, 1961.

'All our attempts to have Mr. Fennell pay this moral and legal obligation have been in vain.

'We realize that the Traveler's Insurance Company cannot act as a collection agency, however, we feel quite sure they do not condone this type of behavior; in as much as this man is directly or indirectly handling your funds and is acting as a representative of your company.

'It is our contention that when a man is having financial difficulties, the greater the pressure is exerted the more likely the tendency is to infringe and tip the till.

'We feel quite certain that if your office would discuss this matter with Mr. Fennell and his immediate supervisor, Mr. Herbert C. Brown, and direct the subject to contact us, we could enter into a mutually satisfactory arrangement for the liquidation of this account.

'Thank you for you cooperation in this matter.

Very truly yours,

/s/ James C. Chambers

Manager'

The letter was seen by one or more officers of Travelers in Hartford, Mr. Brown, Mr. Apple, Mr. Hooper and probably Mr. Dawson, an executive of the Apple companies. It also became a part of the company's file. Fennell telephoned Chambers immediately after receiving his copy of the letter and asked him why he had done it. Chambers replied, according to Fennell (and it is not denied), 'he was going to take care of me; they were going to make sure I got well taken car of, right along * * *.'

Chambers was 'severely reprimanded' by the regional supervisor of GAC and he was told 'if it occurred in the future he would no longer be in * * * (GAC's) employ.' ² At the time of trial he was employed elsewhere (in Connecticut). He did not testify nor does it appear that he was deposed.

Fennell discribed his relationship with Mr. Brown as 'very good' before the receipt of the letter. Afterwards, he said, Brown 'became very cold toward * * * (him). In other words he really wasn't-didn't show an interest at all.' Hooper also told him that 'Brown's attitude had changed.' The following excerpt from Brown's testimony seems to reflect a change in attitude.

'By Mr. Hill:

'Q. You don't contend, do you, Mr. Brown, that this letter wouldn't have any effect on being in your file on hiring this man? A. Of course, it would have an effect.

'(Mr. Hill) Thank you very much.

'By Mr. Psoras:

'Q. What effect? A. If we were going to rehire him, we would want to be sure, first, that he was repaid or made arrangements to repay his account, on the condition that I rehire him, which would be that he would repay the balance, which goes to Travelers Insurance Company, and also that he would be on a commission basis only, rather than on a drawing account.'

It is conceded that Fennell was not actually discharged. He claims, however, that commissions on new business, which he was entitled to receive under the arrangement made with him after he was taken 'off of the draw,' were not paid to him but were applied to his indebtedness to Travelers. As a result, he 'was more or less forced out * * *. Without the commissions, * * * (he) had no money to operate with.' As Mr. Brown phrased it, 'as is usual in these cases, people have to eat, men take care of their families. He just left, about May of 1961.' He also testified that Travelers had advanced to Fennell a total of $2,000; that Fennell's commissions (at the time of trial) amounted to $829.96; that he still owed $1,170.04.

Even after the receipt of the letter Fennell said he continued to spend some time at the office servicing accounts. For a while he had a job as a bartender but he was let go to make a place for a relative of the owner. He received unemployment compensation during the latter part of the summer and in September he enlisted in the U. S. Army.

I.

At the conclusion of the plaintiff's case, and again at the conclusion of the whole case, GAC did not move for a directed verdict and...