Weaver v. Beneficial Finance Co., 4881

• Decision Date: 26 January 1959
• Docket Number: No. 4881,4881
• Citation: 106 S.E.2d 620,200 Va. 572
• Parties: WESLEY JAMES WEAVER v. BENEFICIAL FINANCE COMPANY, INCORPORATED, ET AL. Record
• Court: Virginia Supreme Court

Page 620

106 S.E.2d 620

200 Va. 572

WESLEY JAMES WEAVER v. BENEFICIAL FINANCE COMPANY, INCORPORATED, ET AL.

Record No. 4881.

Supreme Court of Appeals of Virginia

January 26, 1959.

Philip White (William N. Eason, on brief), for the plaintiff in error.

Richard B. Spindle, III (Willcox, Cooke, Savage & Lawrence, on brief), for the defendants in error.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

This appeal is a sequel to Weaver v. Beneficial Finance Co., Inc., et al., 199 Va. 196, 98 S.E.2d 687. Wesley James Weaver instituted action against Beneficial Finance Company, Incorporated and R. S. Costigan, its manager, for damages due to a republication of an alleged false, insulting and libelous letter written by Costigan to Weaver's employer. There the question was whether the action was barred by the statute of limitations, and we held the action was not barred and remanded the case for trial on its merits. Thereafter defendants filed their grounds of defense, a special plea and a motion for summary judgment. The motion alleged that the letter was not libelous per se; that it was not actionable as a matter of law, and that no compensable damages resulted therefrom. The court below, after hearing argument of counsel, entered judgment for defendants on November 29, 1957.

The litigants will be referred to in accordance with the respective positions they occupied in the trial court.

The issue involved on this appeal is whether or not the language used in the letter is libelous per se. Plaintiff concedes that his motion for judgment does not allege special damages, but maintains that under the attending facts and circumstances alleged in it, the letter is libelous per se under the statute on insulting words, (§ 8-630, Code 1950) and that no averment or proof of any special damage is required.

Plaintiff alleged in his motion for judgment that as additional security he gratuitously endorsed a note of William E. Webster and his wife, secured by a deed of trust on certain personal property, for a loan of $300 advanced by defendants to the Websters; that on January 29, 1955 defendants informed him that the Websters had defaulted in the monthly payments and called upon him to pay the balance due of $95, at which time he paid $5.20 and agreed to pay the then balance on or about June 15, 1955 which was satisfactory with defendants, and that on February 23, 1955 defendants unlawfully and with malice wrote an insulting and libelous letter to Industrial Relations Officer, Naval Air Station, Norfolk, Virginia, plaintiff's employer, with intent to force payment which was not due.

He further alleged that the letter was republished on or about March 21, 1956 before a promotion board convened to consider his record, at which time the contents of the letter were first made known to him; that the letter suggested that he was and is dishonest, insolvent and one to whom credit should not be extended; that it attacked his reputation for integrity, and that defendants knew the letter would be a permanent part of his record.

The letter reads as follows:

'On September 23, 1953, Mr. Weaver, who gave his employment as above secured a loan of $300.00. This money was lent on a fifteen months contract with payments of $24.29 per month. At no time has Mr. Weaver honored his contract promptly and now his account is four months past due. He refuses to answer any correspondence and personal calls have no effect.

'We realize that Government agencies can take no cognizance of a debt complaint against an employee beyond acknowledging receipt of the communication and that there is no legal jurisdiction over Federal pay excepting those matters relating to Government claims. However, it is understood that the Department of the Navy expects all Naval personnel to discharge acknowledged and just obligations and desires to cooperate with persons and firms when difficulty in obtaining settlements is encountered.

'Instigation of the removal of Mr. Weaver from his employment is not the intent of this company. However, we feel that if someone in a supervisory position will explain his liabilities and the possible effects of same upon himself, he will then be induced to bring his account to date and pay promptly thereafter.

'Any consideration given us in regard to this matter will be greatly appreciated.'

The record does not show that plaintiff's position was with the Naval Air Station, but counsel stated at the bar of this court that he is employed as a mechanic.

Plaintiff cites Holt v. Boyle Brothers, Inc., 217 F.2d 16, in support of his contention that the language used in the letter is libelous per se. This was an action brought by Edward E. Holt and his wife against Boyle Brothers, Inc., a retail store, for slander, libel and malicious abuse of process. The United States District Court directed a verdict for defendant, and on appeal the court reversed the lower court and held that the statement in a letter written by a representative of defendant to the personnel officer of Naval Research Laboratory, employer of the husband, that Holt had refused to pay a just debt was defamatory and actionable as libel, even though no special damage was shown. The court also held that Boyle was subject to action for malicious prosecution, but we are not here concerned with that phase of the case.

The Holts had never dealt with Boyle Brothers, Inc., and consequently owed it nothing. Boyle telephoned Holt at his place of business and demanded payment of an alleged debt. Holt assured Boyle that he and his wife had never been in the store and were not indebted to the company. Notwithstanding this assurance, Boyle wrote the personnel officer alleging that Holt owed the company $127.75 and that 'every reasonable effort to collect direct had failed.' Holt was informed in a memorandum by the personnel officer he had been asked to help collect a debt. It stated 'failure to honor your just debts may reflect adversely upon your suitability for continued employment with the Navy. Each of the communications received from your creditors is filed in your personal folder and inevitably serves as a part of the total record considered when personnel actions of vital importance to you are taken. * * * If as a result of failure to meet your obligations, evidence is accumulated reflecting upon your suitability for continued employment, your removal may be effected. * * *'

Moreover, Boyle mailed the Holts 'a formidable court-like paper' demanding payment of $127.75 and threatening court action. He later falsely informed the Holts that a judgment had been recovered against them in the Municipal Court. The Holts employed counsel who ascertained suit had been instituted but judgment had not been obtained. At the trial Boyle's attorney stated: 'These are not the defendants that I meant.' The court dismissed the suit, with prejudice, for lack of prosecution. Regardless of this Boyle appealed to the Municipal Court of Appeals, where the judgment was affirmed.

At page 17 of the opinion the court stated:

'To say, as Boyle did in the letter to the personnel officer, that Holt refused to pay a just debt, was plainly defamatory, for this sort of charge ' obviously would hurt the plaintiff in the estimation of an important and respectable part of the community'. Nothing more is necessary to make written or printed defamation actionable as libel. Peck v. Tribune Co., 214 U.S. 185, 190, 29 S.Ct. 554, 53 L.Ed. 960. Thackrey v. Patterson, 81 U.S.App.D.C. 292, 157 F.2d 614. Statements in Holtz v National Furniture Co., 61 App.D.C. 80, 57 F.2d 446, and Cohen v. Marx Jewelry Co., 67 App.D.C. 347, 92 F.2d 498, which imply that a charge of failing to pay a just debt is not actionable unless special damage or some other special circumstance is shown, are therefore erroneous.'

We agree with defendants' contention that the facts in the Boyle case are dissimilar to those alleged in the case at bar. Defendants, however, concede that if the law enunciated in the Boyle case is to be applied in this jurisdiction, then the trial court erred in entering summary judgment. On the other hand they say that the rule in the Boyle case is the minority view, and that the principle applied in M. Rosenberg & Sons v. Craft, 182 Va. 512, 29 S.E.2d 375, where they allege the facts are similar to those in the present case, is controlling.

In 33 Am. Jur., Libel and Slander, § 60, p. 78 it is stated:

'As respects a charge of failure to pay debts, without any imputation of insolvency, it seems to be settled that a writing containing the mere statement that a person who is not a trader or merchant, or engaged in any vocation wherein credit is necessary for the proper and effectual conduct of his business, owes a debt and refuses to pay, or owes a debt which is long past due, is not libelous per se and does not render the author or publisher of such statement liable without proof of special damages. Such a statement does not in a legal sense necessarily expose the person of whom it is said to public hatred, contempt, or ridicule, nor does it degrade him in society, lessen him in public esteem, or lower him in the...