Olinger v. American Savings and Loan Association

• Decision Date: 19 February 1969
• Docket Number: No. 21632.,21632.
• Citation: 409 F.2d 142
• Parties: Harold R. OLINGER, Appellant, v. AMERICAN SAVINGS AND LOAN ASSOCIATION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

409 F.2d 142 (1969)

Harold R. OLINGER, Appellant, v. AMERICAN SAVINGS AND LOAN ASSOCIATION, Appellee.

No. 21632.

United States Court of Appeals District of Columbia Circuit.

Argued December 11, 1968.

Decided February 19, 1969.

Messrs. Karl G. Feissner and Thomas P. Smith, Hyattsville, Md., with whom Mr. William L. Kaplan, Hyattsville, Md., was on the brief, for appellant.

Mr. Charles J. Steele, Washington, D. C., with whom Mr. John J. Carmody, Washington, D. C., was on the brief, for appellee.

Before DANAHER,^* TAMM and LEVENTHAL, Circuit Judges.

PER CURIAM:

This action was brought to recover damages stemming from an alleged libel, invasion of privacy, and malicious interference with peace of mind. The District Court granted appellee's motion for summary judgment. We remand solely on the libel theory.

The facts, viewed in the light most favorable to appellant, are as follows. Appellant, a career Air Force officer, was divorced from his wife in January 1966. By the terms of the decree, he was ordered to make support and alimony payments totaling $550 per month. A deed of trust, held by appellee, on the couple's former house in Maryland obligated both appellant and his former wife. Subsequent to the divorce, however, the couple agreed orally that Mrs. Olinger would continue to live in the house and would keep up the payments on it.

After remarrying, appellant was transferred to Germany. Although he regularly made his support and alimony payments, the deed of trust payments fell into arrears. After several telephone conversations with the former Mrs. Olinger, appellee instructed the trustees to foreclose on the property. They so informed both appellant and his former wife and initiated the necessary legal proceedings. Upon receiving notification of the impending foreclosure, appellant, through his attorney, informed appellee that he would be willing to effectuate a friendly sale of the property. In subsequent conversations with appellant's attorney, appellee's representative (Lowery) accused appellant of leaving the country without providing for his family and of having adulterous relationships. He also stated his intention, based on the advice of a retired Air Force Colonel, to write a letter concerning these matters to appellant's commanding officer, though he conceded that the value of the property exceeded the balance due on the loan. Despite the attorney's objections, Lowery did write such a letter, the substance of which forms the basis of this action. It stated:

Dear Sir:

On or about November 8, 1962 then Major Harold R. Olinger and his wife Betty purchased property at 7526 Juliette Drive, Clinton, Maryland, at which time this Association placed a first trust in the amount of $18,450.00.

On or about January 7, 1966 Col. Olinger and Betty Olinger were divorced. Mrs. Olinger charged Col. Olinger with adultery. About this same time Col. Olinger was assigned to his present assignment in Germany and subsequently he remarried to a former employee who worked at Andrews Air Force Base where he was stationed.

For some unexplained reason, the attorney\'s sic for both parties did not require their clients to agree to property settlement. Mrs. Olinger reports that she has been receiving $550.00 per month, of which $150 was alimony and $100 for each of her four children. She was unable to carry the mortgage payments on the first trust in the amount of $150 per month plus second trust monthly payments reportedly to be $225.00. Mrs. Olinger reports that Col. Olinger is unwilling to permit her to sell the property and he will not keep the payments current on the first and second trust. Presently, the first trust is in default for 5 months.

We have been instructed by Col. McFarlan, retired, Field representative for the Mortgage Guarantee Insurance Corporation to so notify you of Col. Olingers\' sic circumstances and for you to urge him to either grant his former wife the right and power to consummate a friendly sale or to voluntarily convey the aforesaid property back to this Association or to M.G.I.C. providing there are no other Junior liens beside the second trust.

It is with much reluctance we have seen fit to take these steps of writing to you, but foreclosure is imminent. This property may be sold within the next 30 days at public auction.

Sincerely /s/ H. H. Lowery Ass't Sec'y

Copies of the letter apparently were sent to an Air Force Personnel Office in Texas and to appellant's loan insurer in Wisconsin.

Appellant was called before his superior officers in Germany to account for the charges contained in the letter. The embarrassment and humiliation of this experience and of other comments and discussion regarding the letter allegedly aggravated appellant's pre-existing nervous condition, resulting in his hospitalization.

Although summary judgment was properly granted as to appellant's invasion of privacy and malicious interference theories, we conclude that the facts, viewed in this light, would support a verdict in appellant's favor on the libel theory.

In this jurisdiction, a publication is considered defamatory "if it tends to injure plaintiff in his trade, profession or community standing, or lower him in the estimation of the community."¹ Appellee, while not here contesting the defamatory nature of the publication, has taken great pains to demonstrate the truth of each and every statement in the letter. Truth, of course, is a complete defense to a charge of libel.² It is clear, however, that at...