Quina v. Robert's

• Decision Date: 07 February 1944
• Docket Number: 17515.
• Citation: 16 So.2d 558
• Parties: QUINA v. ROBERT'S ET AL.
• Court: Court of Appeal of Louisiana — District of US

16 So.2d 558

QUINA v. ROBERT'S ET AL.

No. 17515.

Court of Appeal of Louisiana, Orleans.

February 7, 1944

Reversed and judgment ordered for plaintiff.

Robert J. Pitard, of New Orleans, for appellant.

A Melville Wolfson, of New Orleans, for appellees.

McCALEB Judge.

Plaintiff Armand G. Quina, brought this suit against a commercial co-partnership, known as Robert's, and the individual members thereof, A. Robert and Harry Rittenberg, to recover damages sustained by him as the result of the co-partnership's publication of certain alleged libelous matter in an attempt to coerce payment of a debt due it by him. The defense to the action is that the matter complained of is not libelous in any sense; that it was published in conformity with usual business methods for collection of delinquent debts and that plaintiff has not suffered any damage.

In the lower court, there was judgment in favor of defendant and plaintiff has appealed.

Plaintiff's action is based on the following state of facts, which are not seriously contested by the defendant. On July 7th, 1938 plaintiff's wife purchased (with plaintiff's assent and approval) a dinner set at Robert's store for the price of $14.95. Under the terms of this verbal sale, plaintiff was obligated to pay $1 semimonthly until the account was liquidated. Plaintiff failed to make the payments regularly but he did, from time to time, make payments on account amounting to the sum of $13.50 so that, at the time of the writing of the letter hereinafter referred to, there was a balance of $1.45 due by him to the defendant. Because of the fact that plaintiff was slow in making payments, the defendant wrote several letters to him during the years 1939 and 1940, in an effort to have him liquidate the indebtedness in full. In addition to this, many demands upon plaintiff were made over the telephone by employees of the store.

During the early part of February 1940, after the efforts of the defendant had failed to bring results and the matter had been placed in the hands of its attorneys, plaintiff's employer, Mr. Martin Gillman, proprietor of the Economy Auto Sales Company of New Orleans, received the following letter and enclosure:

"February 2nd, 1940.

"Economy Auto Sales Co.

"861 Carondelet St.,

"New Orleans, La.

"Attention: Mr. Martin Gillman

"Gentlemen:

"We are enclosing herewith 'Final Notice Before Suit' against Mr. A. J. Quina, employed by your company.

"Any assistance you might offer which would enable us to withhold such drastic action against this party in order to make him realize the necessity of taking care of his just obligations will be greatly appreciated.

"Unless Mr. Quina communicates with Robert's direct within the next three days, we have been instructed by them to take legal action in order to protect their interests.

"Yours very truly,

"Williams and Wolfson

"By: A. Melville Wolfson"

The enclosure reads as follows:

"Final Notice Before Suit

"In the Matter of ) Robert's Jewelry Store

the claim of ) vs.

) Mr. A. J. Quina

"To The Above Named Debtor:

"Please take notice that Robert's Jewelry Store has a valid claim against you for goods sold and delivered, amounting to Fourteen Dollars and ninety five cents--Dollars, an affidavit supporting said account being herein below annexed.

"The said debt is now overdue, and, although demand for payment has been repeatedly made, nothing has been received on account of same, except Three and 50/100--Dollars.

"That unless remittance is made to the undersigned at Robert's, on or before the 7th day of February 1940, suit will be filed immediately to enforce payment of this claim, together with interest and costs of said suit.

"Dated at New Orleans, La. this 2nd day of February, 1940.

"Affidavit of Account

"State of Louisiana )

"County of Orleans )

"On this 2nd day of February 1940, before me, a Notary Public within and for said County of Orleans, La., personally appeared P. J. Casselbery who, being by me duly sworn on his oath, says that the above account is correct and true, to the best of his knowledge and belief.

"___________

"Subscribed and sworn to before me, this 2nd day of February, 1940.

"My commission expires A. Melville Wolfson

at death. "Notary Public."

The above-quoted "Final Notice Before Suit" is on a printed form and, on the reverse thereof, appears "No. 5421" followed by the title "Robert's Jewelry Store creditor, vs. Mr. A. J. Quina, debtor."

Plaintiff testified at the trial that, when the letter and the enclosed document was received by Mr. Gillman, the latter called upon him to explain it; that he told Mr. Gillman that the claim was incorrect because the balance due on the account was only $1.45; that, while Mr. Gillman believed his statement as to the amount due, he was nonetheless alarmed about the letter and that he advised plaintiff to consult a lawyer. Plaintiff further testified that the publication of the debt caused him great mental anguish and that he suffered considerable embarrassment and humiliation.

The testimony of the defendant consists mainly of the statement of a Miss Trapani, who has been employed in the collection department of the store for a number of years. She stated, in substance, that she had endeavored to collect the balance due on plaintiff's account for a long period of time; that she had sent letters to plaintiff and had telephone conversations with him, without avail; that, while the communication sent to plaintiff's employer with the enclosed "Final Notice Before Suit" was incorrect with respect to the amount due, the mistake was attributable to a typographical error and that the method employed by defendant in effecting collection of this claim was in accord with customary procedure adopted by merchants engaged in the same line of business in the city of New Orleans. Defendant also produced documentary evidence to show that plaintiff was financially embarrassed; that he had been sued on numerous occasions for small bills and that his credit standing in the community was not good.

Plaintiff maintains that the trial judge erred in rejecting his demand for the reason that the defendant's letter and enclosure to Mr. Gillman, his employer, constitutes a libel; that it was an attempt to extort money from him; that it violated his right to privacy; and that it is therefore an offense actionable under Article 2315 of the Civil Code.

On the other hand, counsel for defendant maintains that the matter complained of is not libelous per se; that it is well recognized in the jurisprudence that special damage must be proved...