Luhring v. Carter

• Decision Date: 10 March 1952
• Docket Number: No. 3842,3842
• Citation: 69 S.E.2d 416,193 Va. 529
• Court: Virginia Supreme Court
• Parties: HENRY G. LUHRING AND LUHRING MOTOR COMPANY, INC. v. W. R. CARTER, JR. Record

Page 416

69 S.E.2d 416

193 Va. 529

HENRY G. LUHRING AND LUHRING MOTOR COMPANY, INC. v. W. R. CARTER, JR.

Record No. 3842.

Supreme Court of Appeals of Virginia

March 10, 1952.

Breeden & Hoffman, for the plaintiffs in error.

Leigh D. Williams and Lawson Worrell, Jr., for the defendant in error.

JUDGE: MILLER

MILLER, J., delivered the opinion of the court.

On December 8, 1949, W. R. Carter, Jr., instituted an action for damages against Henry G. Luhring and Luhring Motor Company, Inc., under section 8-630, Code of Virginia, 1950, (Virginia Code, 1942, (Michie), sec. 5781) commonly called the statute of insulting words, or the anti-duelling act. The motion for judgment was returnable to and docketed on December 30, 1949. No other proceedings were had in the cause before the Rules of Court of February 1, 1950, became effective. The trial, held on June 6th and 7th, 1950, resulted in a verdict and judgment for $15,000 in favor of Carter, hereinafter called plaintiff, against both Luhring and the company, who will be referred to as defendants.

The usual allegation of intent to injure plaintiff in his 'good name, fame and credit and to bring' him into public disgrace was made in the motion for judgment. Then the allegedly false and insulting words claimed to have been spoken in the presence of Julian H. Payne and others on the 16th day of December, 1948, by Henry G. Luhring of and concerning plaintiff and the allegations as to damages are set out as follows:

''I am not going to do any more business with the bank as long as they use that damn drunk * * * to handle their adjustments. Carter * * * is taking money from other garages in exchange for giving them his insurance companies' repair work. He * * * is a drunken son of a bitch. I am going to drive Carter * * * out of business.'

'WHEREFORE, by reason of the foregoing, the undersigned will move the Court for judgment against you at the hands of the said Court, and at the time and place and in the amount hereinabove set forth.'

On February 13, 1950, on motions of defendants and plaintiff respectively, the court ordered that bill of particulars and grounds of defense be filed, but no time limit was fixed for compliance.

On May 18, 1950, plaintiff filed his bill of particulars, the third and fourth paragraphs of which follow:

'3) That the slanderous and defamatory statements made by the defendants, as set forth in the notice of motion for judgment, were made with the purpose, desire, and demand that they be repeated, especially to clients or customers of the plaintiff, in order to destroy the plaintiff's business as an insurance claims adjuster; that pursuant to the purpose, desire, and demand of the defendants the said slanderous and defamatory statements were so repeated to customers or clients of the plaintiff, resulting in considerable loss of business and, consequently, a considerable loss of money which the plaintiff otherwise would have earned.

'4) That as a direct and proximate result of the slanderous and defamatory statements, the plaintiff was refused further employment as an insurance claims adjuster by Markel Service, Inc., and American Fidelity Fire Insurance Company, and thereby the plaintiff lost large sums of money which he otherwise would have earned.'

Defendants filed no plea or grounds of defense before June 6, 1950, but on that date, the morning of trial, they filed what the order termed a special plea. It reads:

'The defendants, as further plea to the notice of motion for judgment filed against them in the above-styled case, and in compliance with section 8-631 of the Code of Virginia, 1950, while denying that the statements alleged in the notice of motion for judgment were made in the words and manner and with malice for the purposes alleged, nevertheless further allege, by way of defense, that it is true that on or about the 17th day of December, 1948, Henry G. Luhring stated, in the presence of Litt H. Zehmer, Julian H. Payne, M. A. Steinbaugh and Henry G. Luhring, Jr., that he was not willing to have plaintiff act as adjuster on any claims arising out of the financing of automobiles sold by Luhring Motor Company, Inc., with the Bank of Virginia, and assigned as his reason therefor, that Carter had declined to let Luhring Motor Company, Inc., repair said Julian H. Payne's truck even though its bid for good and sufficient repairs was lower than the bid of Harris Motors, Inc., to whom the repair job had been awarded by the plaintiff. Defendants further allege that said remarks were not accompanied by profanity, malice or threats against said plaintiff in any manner whatsoever and were privileged in their nature, being communicated only to persons to whom defendants owed a legal, moral or social duty to reveal the facts as stated.'

On that same day defendants also moved the court to strike paragraphs 3 and 4 of the bill of particulars, and the plaintiff moved that the Special Plea be rejected. Both motions were overruled, and the jury was sworn to 'try the issue joined,' and it appears that the trial was then proceeded with as if the special plea was one of general issue.

Upon conclusion of plaintiff's proof on the afternoon of June 6, 1950, defendants moved to strike the evidence, which motion was overruled. Thereupon defendants moved that they be allowed to file a plea of general issue and grounds of defense, which, over plaitniff's objection, was permitted, but the court indicated that a continuance would be granted if plaintiff had been taken by surprise.

No statement is made in the record as to whether the cause was or was not tried under the Rules of Court effective February 1, 1950. However, omission to fix, in the order of February 13, 1950, any time limit in which bill of particulars was to be filed, and allowing defendants to file plea of general issue indicates that it was not tried under the Rules. See Rules of Court 3.7, 3.18(d), 3.5 and 3.22.

Summarized, defendants' contentions are that:

(1) The allegation as to damages made in the notice of motion was general and did not warrant admission of evidence of special damages, and that the court should have stricken paragraphs 3 and 4 of plaintiff's bill of particulars filed more than a year after the alleged tort for these paragraphs, they say, set out special damages.

(2) The court erroneously admitted evidence of repetition of the alleged slander, and wrongfully refused admission of certain evidence offered by defendant (3) The court erred in denying defendants the right to recall for a second time and for further cross-examination one of plaintiff's witnesses;

(4) The court should have stricken out certain evidence concerning the value of Luhring's real estate, and

(5) The court should have held that the occasion was one of qualified privilege and submitted the issue to the jury of whether or not the privilege was abused.

The claims of the litigants require that the circumstances preceding and attending the speaking of the alleged insulting words and certain events that thereafter occurred be stated in some detail.

Henry G. Luhring is president of Luhring Motor Company, Inc., of Norfolk, Virginia, which company is engaged in the sale, and repair of automobiles and trucks. Motor vehicles that it sells are financed through the Bank of Virginia, Norfolk, Virginia, of which institution L. H. Zehmer is vice-president. Upon the cars so financed, the Bank of Virginia takes out or requires to be taken out insurance policies to protect it in case of damage to the vehicles. These policies, taken out with one or more insurance companies, are, in case of damage to the cars, serviced by the Markel Service, Inc., an insurance adjusting agency, of Richmond, Virginia.

Plaintiff, a resident of Norfolk, Virginia, is an insurance claims adjuster engaged in investigation and settlement of claims arising from automobile collisions in the Norfolk area. He had for some years prior to December 16, 1948, been employed from time to time and rather regularly by Markel Service, Inc., to adjust claims in that area, and the compensation paid him for such services was considerable.

In the summer of 1948 a truck of Julian H. Payne that was financed by the Bank of Virginia was damaged and plaintiff undertook to adjust the claim. Estimates on the cost of repairs were obtained from Luhring Motor Company, and from Harris Motors, Inc., and though that submitted by defendant company was about $20 less than that of the other bidder, on the advice of plaintiff, Payne had the repairs done by Harris Motors, Inc.

On December 16, 1948, Payne's automobile was involved in a collision, and he had it towed to Luhring Motor Company, with a view to having it there repaired. On that morning, Payne talked to M. A. Steinbaugh, sales manager and director of service of Luhring Motor Company and with Henry G. Luhring about the purchase of a new car and repairs on the old car. In that conversation Luhring was told by Payne that though the bid of Harris Motors, Inc., to repair the truck had been about $20 higher than his, the job had been awarded to the former company, on Carter's direction, and he (Luhring) appeared displeased at what Carter had done. Luhring thereupon requested Zehmer to come to the Luhring Motor Company, and upon his arrival Payne was invited into the office. In the presence of Henry G. Luhring, Jr., (vice-president of defendant company), M. A. Steinbaugh and Zehmer, he was asked by defendant Luhring to state what he had previously said about having taken his truck to Harris Motors, Inc., for repair at Carter's direction, which statement he repeated. It was then, according to Payne, that Luhring made the statements set out in the motion for judgment.

Kirk O. Ball, a claims examiner of Markel Service, Inc., who was in charge of the Bank of Virginia's business with that agency and who supervised adjustments made by Carter, testified, over defendant's objection, that on January 8, 1949, ...