Irion v. Knapp

• Decision Date: 20 January 1913
• Docket Number: 19,010
• Citation: 60 So. 719,132 La. 60
• Court: Louisiana Supreme Court
• Parties: IRION v. KNAPP et al

60 So. 719

132 La. 60

IRION v. KNAPP et al

No. 19,010

Supreme Court of Louisiana

January 20, 1913

SYLLABUS

(Syllabus by the Court.)

The failure of a plaintiff in a libel suit to carry on the schedules filed in his bankruptcy proceedings, his claim for damages arising out of the libel, will not estop him from pursuing his action for libel, as the position of the defendant has been changed in no way by his failure to do so. It is essential, to maintain the plea of estoppel, that the one pleading it should have been put in a worse position by the act of the one against whom it is pleaded.

A claim for damages, based on slander or libel, is a peculiarly personal action, which is nonassignable, therefore nonenforceable by a trustee in bankruptcy, and so it need not be placed on the schedule of a petitioner in bankruptcy. Moreover, the claim is not included as one assignable under the terms of the bankrupt act.

A letter written to a member of a public board, giving information concerning the qualities, character, and past experiences of one seeking to be elected by that board to an important public position, is a privileged communication and, where it was written without malice and in the interest of the best selection of a public official, it will not be considered libelous, although the statements therein reflect on the integrity and ability of the candidate.

Even if the statements contained in the letter are not true, but are believed to be true by an officer making them in the discharge of his duty, they are also privileged.

Armand Romain, of New Orleans, for appellant.

Girault Farrar, of New Orleans, for appellee Knapp.

Cage, Baldwin & Crabites, of New Orleans, for appellee Ledbetter.

MONROE, J. I concur in the decree.PROVOSTY, J. I concur in the decree.

OPINION

BREAUX, C. J.

A commissioner of food and drugs was to be elected by the State Board of Health on August 6, 1909. Plaintiff was a candidate for the office; but he was not elected, as his name was not even submitted to the board, and that body chose to elect another to the position.

Plaintiff brought this suit for damages in the sum of $ 110,000 against the defendant, on whom he charges his defeat; his contention being that he would have been elected, as the board stood five in his favor to two against him, had it not been for influence the defendant brought to bear against him. He charges that the defendant, in order to accomplish his defeat, assailed his good name and reputation in the community to the extent that it influenced the members of the board, who were favorable to his election to the last moments before the election was held. He alleges that one of the defendants wrote a letter in which he charged that plaintiff, as the president of the Co-operative Dental Manufacturing Company, domiciled in this city, grossly and wrongfully mismanaged the affairs of the company, as well as misapplied its funds. The letter contained a number of expressions that were anything but complimentary to the plaintiff.

Plaintiff in his petition charges that the charges that were brought against him were without justification, libelous, and unlawful, all for the purpose of injuring him and defeating him as a candidate; that, as the aspersions upon his good name came to his knowledge only a short time before the election was held on the date before mentioned, he was not prepared to meet the accusations; that, none the less, he sought to be heard, and was not allowed that right.

Facts Relating to the Estoppel Pleaded.

Anterior to the date of plaintiff's candidacy, he availed himself of the bankrupt law and was adjudged a bankrupt. He filed a list of his liabilities and assets; but he did not include the claim upon which he has brought this suit. The position of plaintiff is that there was no necessity under the law of his including this claim; that it is not a claim one has to transfer to the trustee, it being a claim for damages growing out of a libel.

We deem it proper to state in regard to the alleged estoppel, based on the alleged failure to surrender claims before mentioned, even if there was a failure, it would not operate as an estoppel. Not carrying the claim on the list is not an act of omission which can be classed as an estoppel, for defendants were not induced into any act or expense from which they were obliged to recede or change position. These are essentials in matter of estoppel. Defendants were not interested in any way, and really had no cause for concern. But, despite the misnomer estoppel, the grounds alleged by defendants as exceptions are sufficiently set forth to require a decision in regard to them.

There was no failure to comply with the bankruptcy laws is our conclusion after having considered the grounds of exceptions alleged in the plea of estoppel. The bankruptcy law does not include the cause of action alleged by plaintiff as one to be surrendered. Reading the different clauses of section 70 of the bankruptcy law (Act July 1, 1898, c. 541, 30 Stat. 565, 566 [U. S. Comp. St. 1901, p. 3451]), we have not found that any one of these clauses includes the action brought by the bankrupt for libel. On the contrary, we have found that action for 'slander' and the like are not 'usually considered assignable.' Collier on Bankruptcy (9th Ed.) p. 1158.

Technically denominated, slander comes under the same rules, in the sense of the act cited, which apply to libel. The rights of action, as recited in the bankrupt act, are declaratory, and it has been held that the trustee or assignee 'cannot enforce the rights of action of a peculiarly personal character.' In re Haensell (D. C.) 91 F. 355; Sibley v. Nason, 196 Mass. 125, 81 N.E. 887, 12 L. R. A. (N. S.) 1173, 124 Am. St. Rep. 520, 12 Ann. Cas. 938; North Chicago St. R. Co. v. Ackley, 171 Ill. 100, 49 N.E. 222, 44 L. R. A. 180, and note.

The exceptions before noted were correctly overruled. We affirm the court's ruling.

Privileged Communication.

The pertinent facts are that plaintiff had been a resident of the city of New Orleans, a graduate of Tulane University, and a practicing dentist for a number of years. Sensitive about his good name and reputation, as men should be (he is the son of Judge Irion, who held a distinguished position at the bar and on the bench of this state), he keenly felt the charges which were brought against him. These charges grew out of his alleged mismanagement of a company in this city formed by a number of local dentists, known as the Co-operative Dental Manufacturing Company, of which plaintiff became the president. The corporation signally failed, and, as is nearly always the case, the stockholders of this company were very much disappointed; they greatly felt their loss; it created bad blood; they spoke in no favorable terms of the plaintiff, the presiding officer. About the time of the failure, at plaintiff's instance, expert accountants examined the books and found a balance due him instead of a balance due by him. During the existence of the corporation, there were acts of the president which occasioned the censure of the stockholders; they charged that the funds were not used in accordance with the wishes of the board of directors. The fact remains that the expert accountants found that he was a creditor, and that, as to his alleged delinquency, there was no attempt made to bring suit before the courts.

Another chapter in this litigation is that, in the year 1908, the necessity of creating the office of a State Food Commission was agitated, and the year following the office was created and a commissioner was elected by the members of the State Board of Health, as they were authorized to do, by statute. One of the defendants was a member of the Board of Health (Dr. Ledbetter). He is a distinguished member of the medical profession, and president of the local medical society. He favored selecting the very best man available for the position -- a man who...