Porak v. Sweitzer's, Inc.

Decision Date29 April 1930
Docket Number6607.
Citation287 P. 633,87 Mont. 331
PartiesPORAK v. SWEITZER'S, Inc.
CourtMontana Supreme Court

Rehearing Denied May 21, 1930.

Appeal from District Court, Fergus County; John C. Huntoon, Judge.

Action by Helen Porak against Sweitzer's, Inc. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Ralph J. Anderson, of Lewistown, for appellant.

Belden & DeKalb, of Lewistown, for respondent.

FORD J.

This is an action for libel. Plaintiff appeals from a judgment of nonsuit.

The complaint alleges that defendant is engaged as a retail merchant at Lewistown, and that plaintiff is a resident of the same city and dependent upon her earnings as a bookkeeper for a livelihood; that defendant is a member of an organization known as the "Honor System," an association of merchants and professional men engaged in business at Lewistown, which organization publishes reports of delinquent debtors and otherwise assists its members in the collection of accounts; that during the month of April 1926, defendant caused numerous communications to be sent by mail to plaintiff from the "Honor System," advising plaintiff that she was indebted to defendant in the sum of $12.50 and, unless the account was paid, the association would cease to protect her credit rating; that plaintiff was not indebted to defendant; that subsequent to the 10th day of June, 1926, the name of plaintiff was published in a delinquent debtors' list of the association showing that she was indebted to one of the members in the amount named that the publication was malicious and done for the purpose of injuring her reputation in the community where she resided. It is further alleged that defendant knew that the members of the association and others who saw the communication would know and understand that the persons whose names appeared on the delinquent debtors' list did not pay their just debts and were unworthy of credit, and that the publication was false and untrue.

Defendant denied the material allegations of the complaint, except as admitted in a further and affirmative defense, wherein it is alleged that there was an association of merchants known as the "Honor System," maintaining an office at Helena, "the purpose of which was that each merchant should notify the Helena office periodically of delinquent accounts, which accounts were tabulated, and each merchant in Lewistown who belonged to the said "Honor System" would receive from the Helena office a list of the delinquent accounts filed with said association by merchants of Lewistown belonging to said association in Lewistown" that each month it sent to the Helena office a list of delinquent accounts and received from that office a combined list of accounts, which included the delinquent accounts of all merchants in Lewistown who were members of the association; that long prior to June 10, 1926, plaintiff purchased on credit from defendant certain merchandise of the value of $12.50; that numerous statements were mailed to plaintiff, but plaintiff refused to pay the account to that date; that an action was instituted against plaintiff to recover the amount due long subsequent to June, 1926. Judgment was duly entered in favor of plaintiff in this action. It is further alleged that, at the time the account was sent to the "Honor System," it was sent with other delinquent accounts, and at the time defendant had no knowledge that plaintiff disputed the account; that any communication made by the "'Honor System' was made without malice to persons interested in said Honor System and by parties who were also interested, or pursuant to a request for information by other members of said association, and such publications, if any were so made, were privileged and not intended to or did, in fact, by any design of defendant, reach any other parties than those who were entitled to have such information as members of said association." Issue was joined by reply.

From the evidence produced upon the trial, it appears that defendant is a member of the "Honor System;" that in January, 1926, plaintiff purchased on credit from defendant merchandise of the value of $12.50, which proved unsatisfactory to her and it was returned. As a result a controversy arose between the parties, and plaintiff refused to pay the account. Finally the "Honor System" wrote plaintiff numerous letters regarding the same, urging her to pay the account. Plaintiff not having paid the account, the "Honor System" thereafter caused to be published and mailed to its members a list of delinquent debtors containing plaintiff's name, with the amount claimed owing, which also had noted thereon the following: "Do Not Post Up," "Private Information." The evidence further shows that an action was instituted by defendant here upon the account which resulted in judgment for plaintiff in this action.

We conceive the only question presented for determination is whether the publication is libelous per se. If it is not, no cause of action is stated, for it is the general rule that, unless the publication is libelous per se, special damages must be alleged. Ledlie v. Wallen, 17 Mont. 150, 42 P. 289; Manley v. Harer, 73 Mont. 253, 235 P. 757; Brown v. Independent Pub. Co., 48 Mont. 374, 138 P.

258. Here there is neither allegation nor proof of special damages.

"Libel is a false and unprivileged publication by writing * * * which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injury him in his occupation." Section 5690, Rev. Codes 1921.

"As respects a charge of failure to pay debts, without any imputation of insolvency, it seems to be settled that a writing containing the mere statement that a person who is not a trader or merchant, or engaged in any vocation wherein credit is...

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