Sullivan v. Morton

• Decision Date: 12 November 1935
• Docket Number: No. 31222.,31222.
• Citation: 88 S.W.2d 167
• Parties: JAMES P. SULLIVAN v. CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, Defendant, and S.L. MORTON, Appellant.
• Court: Missouri Supreme Court

88 S.W.2d 167

JAMES P. SULLIVAN v. CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, Defendant, and S.L. MORTON, Appellant.

No. 31222.

Supreme Court of Missouri.

Division One, November 12, 1935.^*

Appeal from Circuit Court of City of St. Louis. — Hon. Amandus Brackman, Judge.

JUDGMENT REVERSED.

Jones, Hocker, Sullivan & Gladney for appellant.

(1) The letter complained of was qualifiedly privileged. Holmes v. Royal Union, 222 Mo. 556; Finley v. Steele, 159 Mo. 299; Lee v. Fuetterer, 323 Mo. 1204; Zom v. Cox, 318 Mo. 112; Brown v. Globe Printing Co., 213 Mo. 611; Independent Life Ins. Co. v. Rodgers, 55 S.W. (2d) 767. (a) The court erred in refusing to give defendant's Instruction A as to privilege. (b) There was no evidence of actual malice on the part of the defendant. (c) The letter of August 16, 1929, was no proof of malice. (d) Instructions 2 and 3, given for plaintiff, were erroneous because they did not require any finding of actual malice on the part of defendant. (2) The facts hypothesized therein do not constitute a crime. State v. Willard, 109 Mo. 242; State v. Kelly, 170 Mo. 151; State v. Schaeffer, 89 Mo. 271; State v. Woerth, 256 S.W. 456; State v. O'Brien, 265 Mo. 594. (a) It permitted the jury to conjecture as to what constituted "material facts." Anderson v. Pike, 86 Mo. 299; Digby v. American Central, 3 Mo. App. 603; Fugate v. Carter, 6 Mo. 267; Jennings v. Cooper, 220 S.W. 325; State v. Williams, 30 Mo. 364; Dalton v. Redemeyer, 154 Mo. App. 190. (b) The court erred in refusing to give defendant's Instructions B and C, which told the jury that the word "twisting" did not impute a crime. (3) Plaintiff's given Instruction 2 is erroneous because: (a) It authorized the jury to determine for themselves whether the matters hypothesized therein constituted a crime. Boyce v. Wheeler, 161 Mo. App. 504; Reynolds v. Publishers, 155 Mo. App. 513; Krup v. Corley, 95 Mo. App. 640. (b) It ignored the defense of privilege and did not require a finding of actual malice. Sullivan v. Ry. Co., 88 Mo. 169; Fitzgerald v. Hayward, 50 Mo. 523; Hoffman v. Parry, 23 Mo. App. 20; Sawyer v. Railroad Co., 37 Mo. 240; Clark v. Hammer Co., 37 Mo. 55. (4) The letter of November 23, 1927, from defendant to Robert E. Daly of the Insurance Department did not tend to show any malice towards plaintiff, and its admission for that purpose was prejudicial and erroneous. McAtee v. Valandingham, 75 Mo. App. 45. (5) Plaintiff's given Instruction 6, which told the jury that if defendant in the letter complained of had charged the plaintiff with rebating, the letter was libelous, is erroneous because: (a) The letter sets forth the facts on which the charge of rebating was based and these facts do not constitute or establish a "rebate." Trimble v. Foster, 87 Mo. 49; Hall v. Adkins, 59 Mo. 143; Dimitry v. Levy, 108 So. 107. (b) It does not require a finding of actual malice on the part of defendant. (c) The court erred in refusing to give defendant's Instruction D, which told the jury that the facts stated in this letter did not constitute the offense of rebating. (6) The word "twist" must be interpreted in its ordinary sense and as it would be understood by the average person. Cornwell v. Haase & Sons Fish Co., 302 Mo. 48; Ukman v. Daily Record Co., 189 Mo. 378. (a) The word "twist" or "twisting" does not impute fraud or misrepresentation, and the letter complained of was not libelous per se. Magee v. Collins, 100 So. 430; Diener v. Star-Chronicle Pub. Co., 230 Mo. 613; Phillips v. Union Indemnity Co., 28 Fed. (2d) 701; Bradburg v. Segal, 116 Atl. 65; Fite v. Oklahoma Pub. Co., 293 Pac. 1075.

Cullen, Fauntleroy & Edwards for respondent.

(1) The letter was knowingly false, published for a selfish purpose, hence, not privileged, and the uncontradicted testimony established actual malice. Diener v. Chronicle Pub. Co., 230 Mo. 627; Jones v. Pulitzer Pub. Co., 195 S.W. 83; Hagener v. Pub. Co., 172 Mo. App. 436; Ukman v. Daily Record Co., 189 Mo. 392; Hermann v. Bradstreet Co., 19 Mo. App. 227; Klung v. Pulitzer Pub. Co., 279 Mo. 370; Houston Chronicle Pub. Co. v. Bowen, 182 S.W. 64; Doane v. Drew, 107 N.E. 620, 220 Mass. 171, L.R.A. 1916C, 774; International Great Northern Ry. Co. v. Edmonson, 222 S.W. 183. (2) The offensive letter was written of and concerning plaintiff in his capacity as a man of business and was libelous per se. Dobbin v. Railroad Co., 157 Mo. App. 689; Mitchell v. Bradstreet Co., 116 Mo. 226; 17 R.C.L., sec. 34, p. 294; Minter v. Bradstreet, 174 Mo. 486; Ukman v. Daily Record Co., 83 S.W. 60, 189 Mo. 378; Newell, Libel & Slander (3 Ed.), p. 200. (3) The word "twisting" was capable of a defamatory meaning and the evidence showed it included misrepresentation and fraud, hence its meaning was properly submitted to the jury under instructions. Newell, Slander & Libel, sec. 329, p. 351, sec. 330, p. 352; 36 C.J., p. 1208, sec. 140, p. 1161, sec. 27; Brandt v. Beha, 216 N.Y. Supp. 179; Newell, Slander & Libel, sec. 332, p. 353, sec. 331, p. 352; Ferber v. Brueckl, 243 S.W. 230, 210 Mo. App. 223; Williams v. Turnbull, 232 S.W. 172. (4) Plaintiff's instructions relating to misrepresentation and rebating are entirely free from error. R.S. 1929, secs. 4095, 5732, 5733, 5773, 5782, 5868, 5904; Hagener v. Publishing Co., 172 Mo. App. 437; 36 C.J. 1153, sec. 20; Boyce v. Wheeler, 197 Mo. App. 295; Newell on Slander & Libel, sec. 87, p. 129; 25 C.J., sec. 34, p. 606. (5) The amount of judgment was not excessive and the instructions relating to damages have often been approved. Callahan v. Ingram, 122 Mo. 369; Ferguson v. Chronicle Pub. Co., 72 Mo. App. 467; Anderson v. Shockley, 159 Mo. App. 340; Yager v. Bruce, 116 Mo. App. 473.

FRANK, J.

This case came to the writer on reassignment. Respondent, Sullivan, sued the Connecticut Mutual Life Insurance Company and S.L. Morton for libel. The verdict of the jury was in favor of the insurance company and against Morton for $10,000 actual and $15,000 exemplary damages. On motion for new trial a remittitur of $5000 exemplary damages was made, and judgment for $20,000 was rendered against defendant, Morton, from which he appealed.

During the times in question plaintiff, Sullivan, was general agent for the Lincoln National Life Insurance Company of Ft. Wayne, Indiana, and was operating in the city of St. Louis and vicinity. Defendant, Morton, was general agent for the Connecticut Mutual Life Insurance Company and was operating in the same territory. The gist of the alleged libel is that defendant accused plaintiff of "twisting" and "rebating." The alleged libel is based upon certain parts of a letter written by defendant to one C.L. Dern, manager of agencies for the Lincoln National Life Insurance Company at Ft. Wayne, Indiana. That part of the letter reads as follows:

"The facts are the cases I have already written you about have been twisted into your company. These are just a partial list of the flagrant cases which we have.

"Mr. Sullivan paid me a rather lengthy call the other day at which time he made no attempt to justify any of the twisting that he is advocating. Mr. Sullivan personally twisted out fifty thousand dollars insurance with me on Mr. Harry M. Orwig at which time, according to a signed statement which I have in my possession, he was paying a monthly premium which was one-twelfth of the annual premium, which amounts to rebating."

It is plaintiff's theory that the word "twisting" means and is understood by persons engaged in the insurance business and the public generally to mean the inducing of a person by fraud and misrepresentation to drop a policy of insurance already in force in a company other than that of the twisting agent for one in the twisting agent's company.

Defendant concedes that the word "twisting" as applied to insurance means to induce a person to drop a policy of insurance already in force in a company other than that of the twisting agent, for one in the twisting agent's company, but contends that it does not include the element of fraud and misrepresentation, and that insurance people generally so understand it.

Otherwise stated plaintiff's position is that to accuse an insurance agent of twisting means to accuse him of practicing fraud, misrepresentation and trickery in the conduct of his insurance business; that persons engaged in the life insurance business and the public generally so understand it, and for that reason such an accusation when written or printed is libelous.

The petition is not attacked. It sufficiently presents plaintiff's theory of the case. Defendant's answer, after making certain admissions, pleads (1) a general denial, (2) that the letter in question was qualifiedly privileged, and (3) that said letter was true.

[1] Plaintiff offered witnesses who testified that people engaged in the life insurance business generally understood that the word "twisting" includes the element of fraud and misrepresentation. Defendant offered witnesses who testified to the contrary. We need not discuss this evidence or determine the meaning of the word "twisting" because, as we read the record, plaintiff offered documentary evidence, which, in our judgment, shows as a matter of law, that he was guilty of misrepresentation in the conduct of his insurance business. Plaintiff offered in evidence a written document which he testified contained the proposal which he made to prospective customers. That written proposal reads, in part, as follows:

"It must be remembered at all times that cash values arise in the usual life Insurance Contract solely as result of the payment of premiums by the Insured.

"In the case in question, the present cash value of the policy and the dividend, both withdrawable now upon surrender of the policy, is $20,208.00. If the premiums required are paid on said policy for three more years, the total value withdrawable, including the last dividend, will be $30,314.00. That will be an increase in cash value during the next...