Judevine v. Benzies-Montanye Fuel & Warehouse Co.

• Decision Date: 13 October 1936
• Citation: 269 N.W. 295,222 Wis. 512
• Parties: JUDEVINE v. BENZIES-MONTANYE FUEL & WAREHOUSE CO. et al.
• Court: Wisconsin Supreme Court

222 Wis. 512

269 N.W. 295

JUDEVINE

v.BENZIES-MONTANYE FUEL & WAREHOUSE CO. et al.

Supreme Court of Wisconsin.

Oct. 13, 1936.

Appeal from an order of the Circuit Court for Sauk County; August C. Hoppmann, Judge.

Reversed.

Action by Herbert W. Judevine against Benzies-Montanye Fuel & Warehouse Company and others. From an order overruling demurrers to the complaint, the defendants appeal.

The appeal is from an order overruling demurrers to the complaint for insufficiency of facts. The action is brought to recover damages for injury to plaintiff's reputation for credit and injury to his feelings for distributing handbills through the city of his residence purporting to advertise for sale an account of $4.32 for merchandise sold and delivered to him by the defendant corporation. The final act relied on as consummating the cause of action was the distribution through the city of plaintiff's residence of a certain handbill printed on orange paper advertising the account with others as for sale to the highest bidder. The complaint shows that the plaintiff in 1932 purchased on credit merchandise of the corporation to the amount stated in the handbill, and there is no allegation of payment of the amount or any part of it.

The series of acts alleged are as follows: A statement of the account was sent to the plaintiff with a statement signed by the defendant Benzies that unless it was paid by June 15, 1935, he was “going to collect it.” The defendant corporation engaged the services of one Power, of Chicago, to collect accounts owing it, including the account against the plaintiff. Power advertises himself to be a collector of slow accounts and advertiser of accounts for sale to the highest bidder. It was the custom of Power to write debtors in attempt to coerce them into payment by threats of advertising their accounts for sale in local newspapers and by other means, and this was understood by the corporation and its officers. The corporation caused Power to send to plaintiff a letter containing matter as follows: “Power's Service. Publishers, distributors and advertisers of accounts, notes and judgments for public sale to the highest bidder. Legal Department. 400 South State St., Chicago. Date June 24, 1935,” stating that the said account “has been placed with us for collection and we must get immediate action; we do not want to inconvenience you but something must be done toward paying this debt. If you can't pay the full amount now pay a part and arrange with your creditor for payment of the balance. Do this at once. Send payment direct to creditor. Under no circumstances do we accept payments. If the above account is not correct call on your creditor or write immediately.” Signed-“P. K. Power. Power's Service.” Below the signature was the statement: “Watch our advertisements ‘Accounts for Sale’ in your local newspaper.” The defendant corporation in August, 1935, caused Power to send to plaintiff another letter with letterhead and statement following signature as above, saying proof of his account was inclosed, showing it was not yet advertised for sale and directing him if he wished to purchase his account before the Power's Service made “an effort to dispose of it by advertising it for sale,” to take up the matter with his creditor. The defendant corporation in September, 1935, caused a flaming orange handbill eight by eleven inches to be printed containing the following: “Accounts for Sale. The following accounts are offered by the undersigned as agents for sale to the highest bidder. The right is reserved to reject in full or in part any offer.” The name and address of the plaintiff, with those of 23 others, stating the amount of the plaintiff's debt as $4.32, were listed. After the list was the following: “The above listed accounts are guaranteed by the owners to be correct and undisputed and will be advertised for sale until sold. All bids for the purchase of the accounts will be received at the office of the undersigned. Power's Service, 400 South State St., Chicago, Ill.” Below the signature was the statement “Merchants and professional men desiring to dispose of their accounts, notes and judgments will be given full information on request.”

The printing of the handbill and the sending of the letters by the Power's Service are alleged to have been authorized by the defendant corporation and its officers “maliciously and intentionally for the purpose of coercing and threatening the plaintiff into paying his account and threatening to subject and expose him to public contempt, ridicule, aversion, humiliation and mental pain.” The said defendants are alleged to have authorized the distribution of the handbill maliciously and with like purpose and intention. There is no allegation that the defendants conspired to do the acts charged. The natural meaning and effect and the actual effect of the several acts above mentioned is alleged to be to “expose the plaintiff to public contempt, ridicule, aversion, disgrace, humiliation and mental pain” and to classify him among recipients of the handbill as being “unworthy of credit” and a “deadbeat.” The distribution of the handbill is alleged to have been intended to violate and to have in fact violated the plaintiff's right of privacy. It is alleged that the handbill was read by a large number of people and was recirculated by the readers. It is lastly alleged that by reason of the premises the plaintiff has been injured in his reputation and has been brought into public contempt, disgrace, etc., and has suffered great mental pain.

Other allegations of the complaint are that the plaintiff has been for years a resident of the city of Baraboo, pursuing his trade as a carpenter and doing a general contracting business in the city and its vicinity; that he has always been favorably known to many citizens of the city and vicinity and has always borne a good reputation for honesty and payment of bills. There is no allegation of loss of credit or other injury to his contracting business. Then follow allegations of the malicious doing of the series of acts above stated by the corporation and its defendant officers and that they were “calculated and intended to coerce and threaten plaintiff into paying said account, and calculated and intended to expose him to public contempt, ridicule, aversion, humiliation and mental pain.”John H. Rouse, Raymond J. Kasiska, and Robert H. Gollmar, all of Baraboo, for appellants.

Evenson & Shiels, of Baraboo, for respondent.

FOWLER, Justice.

The case is before us upon appeal from an order overruling demurrers to the complaint on the ground that the facts stated do not constitute a cause of action and is presented in three aspects: (1) As one of libel. (2) As one for damages for injury to plaintiff resulting from violation of a criminal statute by defendants. (3) As one to recover damages for violation of plaintiff's right of privacy.

(1) (a) No special damages are alleged in the complaint so that to constitute a cause of action for libel the matter published must be libelous per se. 17 Ruling Case Law 299; McDermott v. Union Credit Co., 76 Minn. 84, 78 N.W. 967, 79 N. W. 673; Holt v. Ashby, 150 Ky. 612, 150 S.W. 810. To render words libelous per se they must impute commission of a crime to the plaintiff or “tend to degrade or disgrace the plaintiff generally, or to subject him to public distrust, ridicule, or contempt in the community where, as alleged, he had theretofore been regarded with high confidence and esteem. *** Being printed, they need neither allege any crime nor [apply to] any particular business situation wherein he might be specially subject to injury.” Scofield v. Milwaukee Free Press Co., 126 Wis. 81, 85, 105 N. W. 227, 228, 2 L.R.A.(N.S.) 691. In determining the meaning of the words involved, the court passes upon “the mere capability of the libelous meaning. *** Whether such meaning was in fact conveyed to the readers is a jury question.” Scofield Case, supra, 126 Wis. 81, at page 87, 105 N.W. 227, 229, 2 L.R.A.(N.S.) 691;Dabold v. Chronicle Publishing Co., 107 Wis. 357, 362, 83 N.W. 639.

It is thus for the court to determine, in passing upon the sufficiency of the complaint, whether the words used by the defendants are capable of the meaning attributed to them by the complaint, which is, to use the words of the complaint, such as to “expose the plaintiff to public contempt, ridicule *** (and) disgrace.”

In determining this question was can consider only the words of the handbill. The letters were sent to the plaintiff himself, and there is no allegation of their being read by others. Thus as to them there was no publication, and whether or not they are libelous is beside the case. The purpose with which the letters were sent and the other acts done by the corporation and its officers that are alleged in the complaint are also immaterial on the question of the meaning which the handbills are capable of carrying, although they bear upon the question of express malice involved in a libel case as basis for exemplary damages, and the malice essential to make actionable the violation of the statute involved in (2).

Taking the handbill by itself, it announces that an account of the plaintiff for $4.32 is offered for sale to the highest bidder; that bids for its purchase will be received at the office of “Power's Service” in Chicago; that the account will be advertised for sale until sold; and that the Power's Service will give information, presumably as to its method of handling the sale of accounts, to merchants and professionalmen desiring to dispose of them. It indicates nothing as to what those methods are, or that the purpose of the method used by the Power's Service is to extort payment of accounts by threats of advertisement of their sale. It does not show that the account is of long standing. It is perhaps subject to the inference that the account would not be advertised for sale if the plaintiff could...