Weaver v. Beneficial Finance Co., 4677

• Decision Date: 14 June 1957
• Docket Number: No. 4677,4677
• Citation: 199 Va. 196,98 S.E.2d 687
• Court: Virginia Supreme Court
• Parties: WESLEY JAMES WEAVER v. BENEFICIAL FINANCE CO., INCORPORATED AND R. S. COSTIGAN. Record

Page 687

98 S.E.2d 687

199 Va. 196

WESLEY JAMES WEAVER v. BENEFICIAL FINANCE CO., INCORPORATED AND R. S. COSTIGAN.

Record No. 4677.

Supreme Court of Appeals of Virginia

June 14, 1957.

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

Thomas H. Willcox and Edward R. Willcox, Jr. (Richard B. Spindle, III; Willcox, Cooke & Willcox, on brief), for the defendants in error.

JUDGE: SNEAD

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

Wesley James Weaver, appellant, instituted action on June 8, 1956 against Beneficial Finance Co., Incorporated and R. S. Costigan, appellees, for compensatory and punitive damages in the sum of $50,000 'due to the republication on or about March 21, 1956,' of a certain false, insulting and libelous letter written by appellees to appellant's employer on February 23, 1955.

Appellees filed a special plea in bar in which they averred that the action was barred by the statute of limitations. Appellant moved to dismiss the plea. The trial court overruled the motion to dismiss, sustained the special plea in bar and dismissed the motion for judgment with prejudice, to which action of the court appellant excepted. We granted plaintiff a writ of error.

No evidence was heard and the case is before us, as it was before the trial court, upon the motion for judgment and the special plea in bar. It is conceded by the parties that the one year statute of limitations applies (§ 8-24, Code 1950), and the sole question presented is whether or not the cause of action arose within one year from the date of institution of this action.

Appellant alleged in his motion for judgment that as additional security he gratuitously endorsed a note drawn by William E. Webster and Mary T. Webster, his wife, secured by a deed of trust on certain personal property for a loan of $300 advanced by the appellees to the Websters; that on January 29, 1955 appellees, through their agent, informed appellant that the Websters had defaulted in the monthly payments due on their note and called upon appellant to pay the balance due of $95, at which time appellant paid $5.20 and agreed to pay the then balance on or about June 15, 1955 which was satisfactory with appellees; that on February 23, 1955 appellees unlawfully and with malice wrote an insulting and libelous letter to Industrial Relations Officer, Naval Air Station, Norfolk, Virginia, appellant's employer, with intent to force payment which was not due; that the libelous letter in question was republished on or about March 21, 1956 before a promotion board convened to consider appellant's record, at which time the contents of the letter were first made known to appellant; that the letter suggested that appellant was and is dishonest, insolvent and one to whom credit should not be extended; that it attacked his reputation for integrity; that appellees knew the libelous letter would be a permanent part of his record and would be republished in the future; that the republication of the letter was the natural and probable consequence of the appellees' act, and that the letter written and signed by appellee Costigan, manager of appellee Beneficial Finance Co., Incorporated, who was acting in the ordinary course of his employment, was authorized and ratified by appellee Beneficial.

The alleged libelous letter which was incorporated in the motion for judgment, is dated February 23, 1955, and 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.'

Appellant's cause of action is grounded upon the republication of the letter, on March 21, 1956. He contends that appellees are liable since the republication was the natural and probable consequence of their act or that they actually or presumptively authorized or directed its republication and that the statute of limitations did not begin to run until March 21, 1956, the date of such republication. On the other hand, appellees maintain that the cause of action against them arose on February 23, 1955, the date the letter was written or published, and not on March 21, 1956, the date it was republished by a third party.

It is well settled that the author or originator of a defamation is liable for a republication or repetition thereof by third persons, provided it is the natural and probable consequence of his act, or he has presumptively or actually authorized or directed its republication. This is based upon the principle that such republication constitutes a new cause of action against the original author. However, the original author is not responsible if the republication or repetition is not the natural and probable consequence of his act, but is the independent and unauthorized act of a third party.

In 53 C.J.S., Libel and Slander, § 85, p. 137, it is stated:

'The author of the defamation is liable for any secondary publication which is the natural consequence of his act; and this rule applies both to libel and to slander. On the other hand, the originator of a defamation is not libel for any repetition or republication thereof, or any additional circulation given to it which is not the natural consequence of his act, but results from the independent and unauthorized act of another, that is, where defamatory matter is republished by a person other than the original author, the author is not liable therefor unless the republication is the natural and probable consequence of his own act, or unless he has actually or presumptively authorized or ordered its repetition. Thus, the publisher of a newspaper or magazine has been held not responsible for the acts of third persons who, after the original publication, sell copies of the newspaper or magazine to others.'

Newell, Slander and Libel (4th Ed.) § 303, p. 339, defines the author's liability for repetition by third persons as follows:

'Under the weight of authority the author of a libel or slander is not liable for its voluntary and unjustifiable repetition, without his authority or request, by others over whom he has no control, either as on a direct cause of action or by way of aggravation of damages, and such repetition cannot be considered in law a necessary, natural and probable consequence of the original slander or libel. But the rule has one important qualification. It is a general principle that every one is responsible for the necessary consequences of his act, and it may be that the repetition of a slander or libel may be the natural consequence of the original publication, in which case the author of the original defamatory matter would be liable. And where the words declared on are slanderous per se their repetition by others is the natural and probable result of the original slander.'

For a further discussion of the liability of the author of a defamation for republication and repetition by third persons, see 33 Am. Jur., Libel and Slander, § 196, p. 184 and § 197, pp. 185-186; Sawyer v. Gilmers, Inc., 189 N.C. 7, 126 S.E. 183, 41 A.L.R. 1184, and for a discussion of the rules applicable to newspapers and magazines see Hartmann v. Time, 166 F.2d 127, 1 A.L.R.2d 370.

In 53 C.J.S., Libel and Slander, § 83, p. 136, it is said 'As a general rule, each time defamatory matter is brought to the attention of a third person there is a new publication constituting a separate cause of action against the person responsible for such new publication. ' In Irvine v. Barrett, 119 Va. 587, 591, 89 S.E. 904, 905, Judge Whittle, speaking for the court, stated 'It would seem plain on principle that no matter on how many separate occasions one may utter slanderous words about another (though all may refer to the same transaction) each slander constitutes a new cause of sction. ' Cf. Jean v. Hennessy, 69 Iowa 373, 375, 28 N.W. 645.

"When the right of action has been once barred by the statute of limitations, it cannot be revived by an admission of defendant that he did utter the slanderous words, nor can the running of the statute be prevented by repetitions of the slander, although, of course, a separate action will lie for any repetition within the statutory time.' 53 C.J.S., Libel and Slander, § 156, p. 239, Cf. Jean v. Hennessy, supra.

This action is expressly based on a republication of the alleged libelous letter on or about March 21, 1956 and not upon the original publication on or about February 23, 1955. If it be determined by the jury that the republication thereof was the natural and probable consequence of the original publication, or that appellees actually or presumptively authorized or directed its republication, then this latter...