Tuyes v. Chambers

• Decision Date: 06 January 1919
• Docket Number: 23179
• Citation: 81 So. 265,144 La. 723
• Court: Louisiana Supreme Court
• Parties: TUYES v. CHAMBERS

81 So. 265

144 La. 723

TUYES v. CHAMBERS

No. 23179

Supreme Court of Louisiana

January 6, 1919

On Application for Rehearing, March 12, 1919

James Barkley Rosser, Jr., of New Orleans, for appellant.

Woodville & Woodville, of New Orleans, for appellee.

O'NIELL J., takes no part, not having heard the argument.On Application for Rehearing. DAWKINS, J. Rehearing denied.

OPINION

DAWKINS, J.

This is an action sounding in damages for alleged slanderous and libelous words and matter which plaintiff claims were uttered and published by defendant in order to compel her to pay a debt which she alleges she did not owe. Summarized, the grounds of complaint were, in substance about as follows:

(1) Insulting and defamatory remarks made at King's grocery store, corner Thalia and Dryades streets, in which it is alleged that defendant called her a 'deadbeat' and asserted that she was 'no lady.'

(2) Similar remarks made to plaintiff's daughter, Mrs Blanche McCann, on Melpomene street, in which defendant is alleged to have again referred to plaintiff as a 'deadbeat' and stated that she was 'no good.'

(3) Printing and publishing plaintiff's name on a list of delinquent debtors.

(4) Mental suffering arising from alleged blackmail or attempted extortion, through threats of exposure by placing said lists in merchants' display windows and advertising the account for sale in the newspapers.

Defendant excepted to the petition on several different grounds, which will be discussed in their proper places, and these being overruled, answered, denying the alleged slander and libel. He, however, admitted his efforts to collect the debt, which he claims is still due and unpaid.

The case was tried on its merits, and plaintiff recovered judgment of defendant for the sum of $ 500, with legal interest from judicial demand. Defendant appealed, and plaintiff has answered, praying for an increase in the judgment to the amount originally claimed, to wit, $ 7,000.

Exception as to Residence.

Defendant excepted on the ground that the petition did not state the residence of either plaintiff or himself. As to defendant, the exception is disposed of by quoting from paragraph I of the petition:

'That nine years ago your petitioner, Mrs. Cecile Tuyes, purchased certain secondhand furniture from Loan J. Chambers, of lawful age, and a resident of this city and state,' etc.

We think the court to which the petition was addressed could take cognizance of the name of the city and state in which it sits, and the use of the words 'this city and state' could mean no other than the city and state in which it is drawn and presented. It was sufficient to inform both the court and the defendant that the city of New Orleans and state of Louisiana were intended.

As to plaintiff, it is true that she does not state her residence at the usual place in the petition, according to the customary form, but it is amply set out in other paragraphs thereof; for instance, in article III, the circular giving her address is annexed to and made a part of the petition, in article IV, where reference is made to 'petitioner's residence on Thalia street,' and in article X she sets forth the fact that she has lived in New Orleans all her life. While it would, perhaps, be better, as a matter of nicety of pleading, to set forth residence in the usual and customary manner, we know of no law which requires that this be done, and none has been cited.

The exception was therefore properly overruled.

Exception of Vagueness.

There is nothing in the record to inform us as to just what the views of the lower court were in passing upon this exception. On reading the petition, we are impressed that many parts of it might have been elaborated, so as to more fully inform the defendant as to the nature and character of the demand. Especially is this true of the items of damage. A lump sum of $ 7,000 is claimed, while the action is based upon separate and distinct acts, which would give rise to separate causes of action, and therefore separate liability. However, defendant had the right to urge such an exception in limine, as was done, and to have plaintiff particularize, or to object to the introduction of evidence on the trial. Having urged the exception, and it having been overruled, proper general objection to testimony should have been urged at the inception of the case. Not having done so, and the proof on practically all scores having been admitted without objection, the effect was to amend the pleading, the same as if it had been ordered by the court, and the exception was to that extent waived.

Exception of No Cause of Action.

Defendant contends that, because the petition does not state in so many words that plaintiff was injured by loss of the esteem of other persons, it does not disclose a cause of action; that the action is one in its nature for injury to reputation, and reputation is injured only to the extent that others are induced to think ill of one. He cites 25 Cyc. p. 249. An examination of that work on this and succeeding pages, with the authorities cited, discloses the legal principle that there are two species of injury which flow from slander or libel -- the one resulting from the very nature of the words or writing, in certain cases, in which the law presumes injury; and the other known as special damages, which must be alleged and proved. Conceding that plaintiff's demand falls within the latter class, necessitating allegation and proof, we find, on reading the petition as a whole, sufficient charges of this character are made to relieve it of the effects of such a plea. After setting out the various acts of defendant in other parts of the complaint, in article VII we find the following:

'That she has almost had nervous prostration on account of his actions towards her, as she is ashamed to go out in the street in her neighborhood, and fears to meet any of her friends, knowing as she does that the said Loan J. Chambers has endeavored, by every manner in his power, to injure, harass, persecute and torment her, by letting everybody possible believe that she owes him thirty-two dollars and seventy-five cents ($ 32.75) and refuses to pay same.'

While the language could have been stronger, we think the fair inference is that the people in her neighborhood have been induced to believe that she is trying to avoid and refuses to pay an honest debt.

Such charges, when made orally, give rise to special damages, which must be alleged and proven, yet, when made in writing and published, they become actionable per se. 25 Cyc. p. 258; Morgan v. Andrews, 107 Mich. 33, 64 N.W. 869; Davis v. Hamilton, 85 Minn. 209, 88 N.W. 744; Mertens v. Bee Pub. Co., 5 Neb. (Unof.) 592, 99 N.W. 847; Sanders v. Hall, 22 Tex. Civ. App. 282, 55 S.W. 594; Muetze v. Tuteur, 77 Wis. 236, 46 N.W. 123, 9 L. R. A. 86, 20 Am. St. Rep. 115. The alleged lists or circulars do not state in so many words that plaintiff is a 'deadbeat,' or is seeking to avoid a just debt, but the logical result and intention was to convey that impression to the reader. 'These accounts are guaranteed [by creditors] undisputed, correct and just' reads the list at one point, and although this language is used in connection with the call for bids, it but thinly disguises the real purpose of the entire plan.

There are other features of the petition which raise serious questions of actionable conduct, in addition to the technical charges of slander and libel. They smack of the elements of blackmail, which is severely denounced by our laws as a necessary felony. We quote:

'If any person shall knowingly send or deliver, * * * or shall cause to be received by another any letter, postal card, writing or printed matter, threatening to accuse him or her, or any member of his or her family, or to cause him or her, or any member of his or her family, to be accused of any crime, * * * or to charge him or her, or any member of his or her family, with any fault, infirmity or failing, or to publish or make known his or her faults, * * * or impair his or her good name, reputation, or credit, * * * with intent to extort money, goods, chattels, or any promise or obligations for the payment of money or the transfer or delivery of any money or other valuable thing whatsoever, * * * or if any person shall follow or pursue, or maliciously intrude himself or herself upon another at his or her house, place of residence, or at his or her place of business, * * * where she or he may be engaged or employed, or in any public street or public place, * * * shall be imprisoned at hard labor for not less than one year nor more than twenty years, and shall be fined not exceeding two thousand dollars,' etc. Marr's Rev. Stat. vol. 1, p. 561, § 1699 (Act 110 of 1908, p. 166).

It makes no difference that the money sought to be extorted was legally due. State v. Logan et al., 104 La. 760, 29 So. 336. We recognize the principle of law that the violation of a penal statute does not give rise to a private action unless the complainant has suffered some special injury different from that...