Sunley v. Metro. Life Ins. Co.

• Decision Date: 25 October 1906
• Citation: 109 N.W. 463,132 Iowa 123
• Parties: SUNLEY v. METROPOLITAN LIFE INS. CO.
• Court: Iowa Supreme Court

132 Iowa 123

109 N.W. 463

SUNLEY

v.METROPOLITAN LIFE INS. CO.

Supreme Court of Iowa.

Oct 25, 1906.

Appeal from District Court, Wapello County; M. A. Roberts, Judge.

The opinion states the facts. Affirmed.

E. H. McVey and Gilmore & Moon, for appellant.

Work & Work, for appellee.

WEAVER, J.

The plaintiff seeks to recover damages for an alleged libel. The petition avers that plaintiff was employed by defendant as a solicitor and collector, and, for the faithful performance of his duties in that capacity, gave the defendant a bond with the National Surety Company as surety. He further avers that, after the giving of said bond, the defendant wrongfully and maliciously wrote a letter, and sent the same to said surety company, falsely charging the plaintiff with being a defaulter, and with having embezzled certain moneys collected by him on said defendant's account. By way of special damages, he also alleges that, after leaving the defendant's service, he obtained other employment with a certain school at Scranton, Pa., which employment he says was lost by him by reason of the publication of the false charge by the defendant aforesaid. The defendant denies all wrong and malice on its part and claims that its communication to the surety company was of a privileged character, and made in good faith. Upon these issues, there was a verdict and judgment for plaintiff in the sum of $400 and defendant appeals.

The evidence tends to show that one Murdock, an assistant superintendent of the defendant at Ottumwa, had some sort of accounting with the plaintiff, and reported to the home office that plaintiff was short in the collections made to the amount of $14.31. Thereafter the defendant wrote to the surety company, stating that plaintiff was short in his accounts to the amount of $21.81. Meanwhile plaintiff had obtained, or was promised, employment, with the correspondence school at Scranton, and applied to the National Surety Company to become surety on his bond in that service. The surety company declined the risk because of the information it had received from the defendant, and also wrote to the correspondence school, giving the reasons for its action, and, thereupon, the latter declined to take or retain plaintiff in its employment. A few days later the defendant wrote to the surety company, referring to the claim it had made upon the plaintiff's bond, and saying: “The final inspection of this exagent's account was made for the week of July 21st, and our assistant superintendent reported a deficiency of $11.76. An examination of the final papers at this end increasedthe shortage to $14.31. Under date of August 4th, which was prior to the time of making claim, we received a remittance of $8.45, which, owing to an oversight, was not placed to the credit of his account at that time. Under the circumstances you will observe that we were not justified in submitting the claim under this agent's bond. In addition to the remittance mentioned above, we have more than sufficient ordinary salary in hand to liquidate the balance of the shortage; therefore we take pleasure in withdrawing our claim.” About the same time the defendant wrote to the plaintiff as follows: “Mr. Nate Sunley, Ottumwa, Iowa--Dear Sir: In response to your letter of above date we have this to say. It was an error on the company's part in making claim on the surety company. While the corrected final inspection revealed an actual deficiency of $14.31, the company had received $8.45 from Asst. J. Murdock before making claim and there was sufficient salary in hand due you to offset the balance. The National Surety Company has been advised of this fact, and our company has withdrawn claim. Very truly yours, G. R. Creighton, Supt.”

The plaintiff testifies that, on making settlement with Murdock for the company, there was found to be in his hands after all proper credits were allowed the sum of $8.20, which sum he paid over to Murdock. Mr. Murdock was not examined as a witness, and there is no evidence whatever that there was any shortage in plaintiff's accounts, at the date charged by the defendant, except as that conclusion may be argued by counsel from plaintiff's own testimony. The statements made in the correspondence between defendant and the surety company to which plaintiff was in no manner a party are not competent evidence against him upon this proposition. Under the record as made, the jury was justified in...