Sun Life Assur. Co. Of Canada v. Bailey

Decision Date11 June 1903
Citation101 Va. 443,44 S.E. 692
PartiesSUN LIFE ASSUR. CO. OF CANADA. v. BAILEY.
CourtVirginia Supreme Court

LIBEL — PLEADING — DECLARATION — PUBLICATION—INSULTING WORDS—LIABILITY OF CORPORATION — EVIDENCE — INSTRUCTIONS —DAMAGES.

1. A declaration which sets out the plaintiff's cause of action with sufficient fullness and clearness to apprise the defendant of the grounds of the plaintiff's claim, and to enable the defendant to plead to the action, is sufficient.

2. Publication of a libel is sufficiently alleged, where the libelous instrument is set out, and accompanied by the allegation that the defendant made publication of it.

3. The sending of a letter through the mail is not a publication.

¶ 3. See Libel and Slander, vol. 32, Cent. Dig. § 108.

4. Publication may be before or after mailing, either by dictation to a stenographer, writing out on typewriter, and subsequent signature by the author, or by making the contents of the letter known to other persons either before or alter it was mailed.

5. Common-law libel and an action for insulting words under the statute cannot be blended in one count; but a publication containing insulting words may be declared on under the statute, although it is libelous at common law.

6. A corporation can be held liable in an action under the statute for insulting words uttered or published by an agent, and required or authorized by his employment, and in the course of the business of the corporation.

7. In an action for insulting words, evidence of the effect produced by an article other than that alleged, and for which the defendant was not shown to be responsible, is inadmissible.

8. Publication is an essential element of libelous defamation.

9. An incomplete statement of the law in one instruction may be cured by a complete statement in another, if, when the two are read and considered together, the court can see that the jury could not have been misled by the incomplete instruction.

10. Where only compensatory damages can be recovered, the standing of the defendant does not influence the recovery.

Error to Law and Equity Court of City of Richmond.

Action by one Bailey against the Sun Life Assurance Company of Canada. Judgment for plaintiff, and defendant brings error. Reversed.

B. Rand Wellford and J. C. Taylor, for plaintiff in error.

Hill Montague, for defendant in error.

CARDWELL, J. The defendant in error brought his action for defamation against the Sun Life Assurance Company of Canada, and recovered a judgment for $750 damages. The declaration contains two counts, the first of which is a count for libel at common law, and the second for insulting words under the statute. To the declaration, and to each count thereof, plaintiff in error demurred, the demurrer was overruled, and this ruling of the trial court constitutes the first assignment of error.

The ground relied on in the demurrer to the first count is that it does not sufficiently allegepublication of the libel. Omitting the formal part of the declaration, the wrong alleged in the first count is set out as follows: "Falsely, wickedly, and maliciously did compose, publish, by and through its agents, Foster & Bartow, who were at the time managers of the defendant's insurance business for the city of Richmond and state of Virginia, and acting within the scope and course of the business in which said agents were employed, and caused to be published of and concerning the said plaintiff, a certain false, scandalous, malicious, and defamatory libel, by means of a letter dated March 7, 1901, mailed by said agents to, and received by, said plaintiff, containing the false, scandalous, malicious, defamatory, and libelous matter following." This is followed by the letter on which the action is based, and the usual allegations concluding a common-law count for libel or slander.

"A declaration which sets out the plaintiff's cause of action with sufficient fullness and clearness to apprise the defendant of the grounds of the plaintiff's claim, and to enable the defendant to plead to the action, is sufficient." Guarantee Co. v. National Bank, 95 Va. 480, 28 S. E. 909.

It is true that the first count of the declaration in this case sets out that the libel complained of consisted of a letter mailed to the plaintiff, but there is also the allegation that there was, by the defendant, a publication of the matter contained in the letter, which might have been before or after the mailing of the letter, either by dictation of it to a stenographer, written out on a typewriter, and subsequently signed by the author, or by making the contents of the letter known to others either before or after it was mailed, or in a number of other ways. Gambrill v. Schooley (Md.) 48 Atl. 730, 52 L. R. A. 87, 86 Am. St. Rep. 414; Adams v. Lawson, 17 Grat. 250, 94 Am. Dec. 455. It is undoubtedly well-recognized law that the sending of a letter through the mail is not a publication, as the sender is not responsible for what the recipient does with the letter after it is received. Odgers on L. & S. 151, and cases cited. But where the libelous letter is set out in the declaration, accompanied by the allegation that the defendant made publication of it, we think that this sufficiently apprises the defendant of the plaintiff's claim to enable him to plead to the action.

We are further of opinion that the court did not err in overruling the demurrer to the second count. The count, as we have observed, is for insulting words under the statute; and the first objection made to it is that it blends or mingles in one count a common-law libel and an action for insulting words. That this cannot be done is well settled. Payne v. Tancil, 98 Va. 262, 35 S. E. 725. It was, however, held in that case that where the count satisfactorily shows that it was intended to be a count under the statute for insulting words, and not for common-law defamation, it is good, because a publication containing insulting words may be declared on under the statute, although it is libelous at common law. We do not see that the second count leaves any room for doubt that it was intended to be a count under the statute for insulting words, and not for common-law defamation.

The second objection made to this count is that it is an action against a corporation, and that such an action will not lie. This question was raised in this court for the first time, it would seem, in Reusch v. Roanoke, etc., Co., 91 Va. 534, 22 S. E. 358, but it was deemed unnecessary to pass on it.

That a corporation may be held responsible in an action for the publication of a libel is no longer an open question in the United States courts. Washington Gaslight Co. v. Lansden, 172 U. S. 534, 19 Sup. Ct. 296, 43 L. Ed. 543. And in Brown v. N. & W. Ry. Co., 42 S. E. 664, recently decided by this court, which was an action for the publication of an alleged libel, the learned counsel representing the defendant did not interpose the defense that such an action would not lie against a corporation.

In a number of other cases this court has, following the rules of construction provided by statute (now chapter 2 of the Code of 1887, and especially the thirteenth subdivision of section 5 of the chapter), construed the word "person, " in a statute, to include corporations as well as natural persons for civil purposes. City of Lynchburg v. N. & W. Ry. Co., 80 Va. 243, 56 Am. Rep. 592, and cases cited.

Now that corporations are allowed by law to transact practically...

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