Rickbeil v. Grafton Deaconess Hosp., 6993.

CourtUnited States State Supreme Court of North Dakota
Citation74 N.D. 525,23 N.W.2d 247
Docket NumberNo. 6993.,6993.
Decision Date15 June 1946

74 N.D. 525
23 N.W.2d 247


No. 6993.

Supreme Court of North Dakota.

May 22, 1946.
Rehearing Denied June 15, 1946.

Appeal from District Court, Walsh County; G. Grimson, Judge.

Action by W. H. Rickbeil against Grafton Deaconess Hospital, and Albert G. Tverberg for libel. From an order and judgment dismissing the action at close of plaintiff's case, the plaintiff appeals.

Reversed, and new trial ordered.

[23 N.W.2d 248]

Syllabus by the Court.

1. Where the language of an alleged libel charges the commission of a crime the falsity of the charge is presumed in an action to recover damages caused by the libel.

2. Where the language used in the libel is fairly susceptible of a construction which renders the writing defamatory and actionable and it is claimed another construction of the language would render it innocent it is for the jury to determine what is the proper construction to be placed upon the language used.

3. A libel is published when the libeller intentionally allows it to be read by one other than the defamed.

4. The dictation of a libelous letter by the defendant to his private stenographer, who at his direction transcribes her notes, writes the letter and thereafter has it mailed to the plaintiff as directed by the defendant, is a publication.

[23 N.W.2d 249]

5. Such dictation of a libelous letter to the stenographer, and the publication thereof is not a communication of a matter ‘to a person interested therein by one who also is interested’ so as to render the dictation to the stenographer and the subsequent publication privileged.

6. A corporation is liable for the torts of its officers and employees in the discharge of their duty, and when the secretary of the board of trustees while in the discharge of his duties publishes a libel the corporation is liable for such act.

7. A corporation is not immune from liability for the publication of a libel by its officer or employee in the discharge of his duty because it may be a non-profit, charitable corporation.

8. While a principal is liable for the torts of his agent committed within the course of employment and within the scope thereof the principal is not liable in punitive damages, even though the agent may be liable, unless the proof shows the principal authorized the tortious acts upon which the punitive damages are based or ratified the same.

NUESSLE, J., dissenting.

Lyche & Lyche, of Grand Forks, for appellant.

Day, Lundberg & Stokes, of Grand Forks, for respondents.

BURR, Judge.

Plaintiff appeals from an order and judgment dismissing this action at the close of his case and demands ‘a new trial of the issues of law and fact.’

Plaintiff complains: that the defendants combined to vex and annoy him; and did falsely, intentionally, and maliciously publish and circulate this letter addressed to him:

‘Board of Trustees Grafton Deaconess Hospital

Grafton N. Dak.










Albert G. Tverberg, Secretary

Grafton, N. Dak.

February 16, 1939

W. H. Rickbeil

Hamilton, N. Dak.

Dear Sir:

I am calling your attention to the unpaid hospital bill of Julia Sagert, amounting to $301.24.

As this girl received treatment following a criminal operation and for which you were responsible, we hereby request and demand that you make immediate payment of this bill. If you fail to do so, we will institute criminal proceedings and use our best efforts to see that you are committed to the State Penitentiary. This is a final notice and you immediate attention is requested.

Yours truly,

A. G. Tverberg

A. G. Tverberg Secretary'.


He alleges he has been and is greatly injured thereby and has lost gains and profits which would otherwise have arisen and accrued to him in his business to his damage in the sum of Ten Thousand Dollars ($10,000).

The defendants answer separately. The hospital states: it is a charitable non-profit corporation; that its codefendant ‘acts entirely in an independent capacity so far as the collection of outstanding accounts is concerned;’ that it has no control over such activities; that the letter which is the basis of the plaintiff's complaint ‘was not ordered, consented to, approved or ratified’ by it; that any allegedly defamatory words stated are merely in their natural, ordinary and intended meaning, a statement that the

[23 N.W.2d 250]

plaintiff had assumed the responsibility for the hospital account referred to; that its codefendant was justified in believing and honestly believed the statements made therein were true; and if the plaintiff has been injured the injury was caused by his own acts in circulating ‘distorted and unwarranted versions of statements supposedly made by said Albert G. Tverberg and were not due to any act or omission’ on its part.

The defendant Tverberg answers to the same effect and adds that the plaintiff well knew he ‘had assumed responsibility for the hospital account’; knew the statement of responsibility referred to this and not to any criminal act; that while some of the facts connected with the incidents described in the letter may have had reference to another Rickbeil, plaintiff's son, the similarity of names and plaintiff's acts and the conditions and circumstances which plaintiff allowed to arise and exist, justified him in forming the opinions and beliefs which he held as above stated.

A jury was empanelled. The only witnesses in the case were the plaintiff, and the defendant Tverberg called for cross-examination under the statute.

Defendant Tverberg was the secretary of the Board of Trustees of the hospital and as such had charge of the collection of accounts and bills due the corporation. As such secretary and collector he dictated the letter to his stenographer. The stenographer took the dictation in shorthand, was required to transcribe her notes and typewrite the letter which she did. The letter was registered and received by the plaintiff through the mail.

The record shows further that the girl named in the letter had worked for the plaintiff for about three years; a criminal operation for an abortion had been performed upon her; plaintiff's daughter had been convicted of participating in this criminal act; the girl was sent to this hospital but died as a result of this operation; and the plaintiff agreed in writing to pay the hospital charges. There is no proof that the plaintiff had anything to do with the condition of the girl or knew anything about the criminal operation at the time of occurrence. The defendant's name is William Henry. He had two sons-named Herman and Albert respectively. On cross examination there was an attempt to show one of these sons was responsible for the condition of the girl who died, but there is no proof thereof in the case.

At the close of the plaintiff's case the defendants moved the court to dismiss the action on the following grounds:

1. ‘That the letter upon which the suit is brought is not libelous per se, that therefore to sustain the case it is necessary to prove damage and that there has been no proof of damage.’

2. ‘That there is no evidence whatever of publication which is an essential element of libel.’

3. ‘That the evidence does not prove the material allegations of the complaint.’

Plaintiff moved to reopen his case for the purpose of offering further testimony regarding the publication to show the defendant Tverberg ‘reiterated and reaffirmed orally to numerous people’ the statements made therein; to show plaintiff had suffered mentally from the publication of this statement; and to furnish proof as to damages for mental suffering. There was nothing presented to the court as basis for this motion and the court denied it.

The defendants moved further for dismissal on this ground: ‘with reference to the defendant Hospital only, we urge as a further ground for dismissal as that defendant, that since this was a collection letter, and since all communications had under the proof, communications as between the Superintendent of the Hospital and another employee of the Hospital in the usual course of their duties, the communication and all acts performed were privileged or qualifiedly privileged.’

The court took the matter under advisement and later granted the motion, on the ground, as shown by the memorandum opinion, that the dictation of the letter to the stenographer who transcribed her notes and wrote the letter at the order of the secretary was not ‘publication’ of a libel.

There was another point determined by the court-the non-liability of the corporation for the act of its secretary and collector-there being no proof showing the

[23 N.W.2d 251]

trustees or any of them knew about this letter, ordered it to be written, or ratified the act of the secretary.

‘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 injure him in his occupation.’ Sec. 14-0203, Rev.Code.

The trial court in the memorandum opinion, goes very carefully into the conflicting views with reference to the effects of dictating such a letter to a stenographer, citing: Ostrowe v. Lee, 256 N.Y. 36, 175 N.E. 505;Bradley v. Conners, 169 Misc. 442, 7 N.Y.S.2d 294;Gambrill v. Schooley, 93 Md. 48, 48 A. 730,52 L.R.A. 87, 86 Am.St.Rep. 414, and similar cases where it is held that dictation of such a letter to a stenographer who afterwards transcribed the letter from her notes and had the letter mailed, is a publication of a libel and, Freeman v. Dayton Scale Co., 159 Tenn. 413, 19 S.W.2d 255, and other cases to the effect that such dictation does not constitute ‘publication’ in the sense of that term as used in the law of libel.

The trial court reached this conclusion therefrom: ‘We are satisfied that the sounder and better supported rules are * * * that the incidental dictation of such a communication to an employee stenographer is not a publication...

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