Hines v. Shumaker

52 So. 705, 97 Miss. 669

Opinion

Wilbourn,

* Special Judge,

delivered tbe opinion of tbe court.

J. M. Shumaker brought suit in tbe circuit court of Hinds county, Miss., against W. W. Hines and tbe Lamar Life Insurance Company for tbe publication of tbe following letter:

“The Lamar Life Insurance Company.

“Jackson, Miss., June 17, 1908.

“To our Representatives — Gentlemen: There are but two-kinds of life insurance field men- — those that are good, and those that are no good. TheJmoeker is the most obnoxious type-of the latter class. The hardest work a man ever undertakes in this world is .to endeavor to lift himself up by trying to pull, his brother down. A knocker is sometimes naturally bom a knocker. Others are kno'ekers because they can’t make good in a square fight, and rather than quit honestly they gravitate to-the mire and

“ ‘In the mud and scum of things Something always, always sings.’

“The knocker’s tongue is always full of poison, and the-meanest man on earth is the one who will wound a man’s character with his tongue, and he is no whit less mean if he attempts-to wound the character of the Lamar Life Insurance Company. Gentlemen, there is a big knocker abroad in the land. He is-one J. M. Shumaker, reputed a general agent for Mississippi of the Germania Life Insurance Company of New York. His-name may be a misnomer, but we haven’t seen any proof on the subject. He clearly is not a life insurance man. His company last year in the whole United States gained, according to-the Spectator Co., only $876,028 of insurance. The Lamar-Life did three times'better than that in only one state. Shumaker, in the state of Mississippi last year, with all of his sub-agents, which field force we can’t see with the naked eye, wrote-the great sum of $134,000 of insurance, and while he was thus-busy and ‘knocking’ his policy holders in Mississippi terminated for him $301,765 of insurance.

“Shumaker is getting rich and is mad about it. His big Ger-mania has a ratio of assets to liabilities of $1.05, as compared to the Lamar’s $2.21. His company has been in business forty-■eight years, and is not increasing its- writings as fast as we, who are only two years old. He criticizes the Lamar upon every occasion, and .starts absurd rumors wherever he goes. Of course they are all silly.

“I write this merely to keep you posted about even small matters in the field. We don’t write about Shumaker to give you something to knock him with. Let- him alone. We wrote during the first ten days of June more business than he and his ‘big’ force did the whole of last year in Mississippi.

“A successful writer and a successful company are products of positive qualities. Positive qualities mean boosting, instead of knocking; hustling, instead of procrastinating; being keen, dignified, and informed. And it goes without saying that an indispensable condition for success in every career is contained in a single word — WOBK. An insurance writer may be brainy, but he must work; honest, but he must work; diplomatic, but he must work; optimistic, but he must WOBK. ■Shumaker isn’t any of these things.

“So don’t worry about him and his talk. Follow the old injunction, which says that, ‘When a hog muddies a stream, step up the branch ahead of him to get your drink.’

“The Lamar Life is bigger, stronger, and better each succeeding day, and its stream is so wide that Shumaker muddying ■can't ripple far.

“How is the contest going? Why, there are about thirty agents 'making the best fight you ever saw, with nobody yet a winner.

“Hustle, boys, hustle. Boost, brothers, boost.

“With best wishes, I am very respectfully,

“W. Warner Hines,

“W WH — CAH Superintendent of Agents.”

At the conclusion of the testimony the court peremptorily instructed the jury to find for the plaintiff, but submitted the question as to the amount of damages, compensatory and punitive, to the jury under proper instructions. The jury returned a verdict in favor of plaintiff for $7,500, but on motion for-a new trial the court below required the plaintiff to remit all of the verdict except $3,000, and awarded judgment for that amount.

It is conceded that the letter is libelous per se; but, so far as the Lamar Life Insurance Company is concerned, it is insisted that the communication is privileged, and that it was only published upon a privileged occasion, and to persons having a corresponding interest in the subject-matter of the communication. The court below was of the opinion that the publication of the letter to the stenographer, who made a typewritten copy of it from a pencil copy furnished her by Mr. Hines, and then made about fifty copies of the typewritten copy on the multigraph machine, was a publication outside the privilege so far as the Lamar Life Insurance Company is concerned; and, it not being-disputed that Mr. Hines had mailed a copy of the letter to Mr. H. E. Cross, another outsider, with whom Hines was at the time negotiating about a private matter, the court granted the peremptory instruction.

We do not think it necessary in this case to pass at this time on the question as to the publication to the stenographer, but prefer to rest our conclusion upon another ground presently to be stated. The occasion upon which the letter was written and mailed to the representatives of the Lamar Life Insurance Company, as detailed by Mr. Hines and taken most strongly in favor of the appellants, was as follows: It was reported to Mr. Hines, who was the superintendent of agents of the Lamar Life Insurance Company, by several of its agents, that they had heard that the plaintiff, J. M. Shumaker, who was the superintendent of agents in Mississippi for the Germania Life Insurance Company, a competitor of the Lamar Life Insurance Company, was-stating to people with whom he was endeavoring to write insurance, and to prospective policy holders of the Lamar Life Insurance Company, that the Lamar Life Insurance Company was young, was local, was weak, was liable to go to pieces at any ■time, was-on its last legs, had spent a part of its capital stock, could not possibly last long, that its stock was below par, and that it had a mortal at the head of it. These statements were not made directly by Shumaker to agents of the Lamar Life Insurance Company, and the agents had no personal knowledge themselves as to whether or not the statements had actually been made by Shumaker. They simply knew that other parties said ■such, statements were being made by Shumaker. Without taking the matter up with Shumaker at all, and without having any refutation of the charges or statements of Shumaker communicated to the persons to whom Shumaker had talked or published-in the communities where it was stated Shumaker had -started these rumors, the letter complained of was issued and mailed to all of the subagents of the Lamar Life Insurance Company in all the different localities ■ of the state of Mississippi where said subagents resided, without reference to whether or not any rumors had been circulated in these communities by Shumaker, and without reference to whether or not all of said agents had heard of said rumors.

• Where the communication is upon a privileged occasion and is a privileged communication, the burden is upon the plaintiff, ■of course, to show actual malice in order to recover. But if the privilege of the communication is not conceded, and does not appear from the plaintiff’s testimony, as is the case here, the burden is then upon the defendant, who relies upon the privilege,- to establish it. Abraham v. Baldwin, 52 Fla. 151, 42 South. 591, 10 L. R. A. (N. S.) 1051. In Odgers on Slander and Libel, pp. 286, 287, it is stated as follows: “Not every communication made on a privileged occasion is privileged. The defendant may, in answer to an inquiry, launch out into matters which have no bearing on the question, or in writing to a person who has a joint interest with himself in one undertaking, he may wander off into other matters with which his correspondent is not concerned. The presence of such irrelevant matter does not, of course, affect the judge’s ruling that the occasion was privileged. As a rule it will be merely evidence of malice to take the case out of the privilege. But there seems to be some cases where the communication is so wholly irrelevant and improper that the judge while ruling that the occasion was one which would have afforded protection to a proper letter, may yet declare that no privilege at all can attach to the letter which the defendant in fact wrote on that occasion.” “The scope of the defamatory matter must not exceed the exigency of the occasion.” Cook on Defamation, 35. “A communication made by a person is privileged which a due regard to his own interest rendered necessary. He is entitled to protect himself. In such cases, however, it must appear that he was compelled to employ the words complained of. If he could have done all that his interest or duty demanded without libeling or slandering the plaintiff, the words are not privileged. It is very seldom necessary in self-defense to impute evil motives to others or to charge your adversary with dishonesty or fraud.” Newell on Slander and Libel (2d ed.) § 108. See, also, Newell on Slander and Libel, §§65 and 67. “In determining whether or not a communication is privileged, the nature of the subject, the right, duty, or interest of the parties in such subject, the time, plhce, and circumstances of the occasion, should all be considered.” Abraham v. Baldwin, 52 Bla. 156, 42 South. 592, 10 L. R. A. (N. S.) 1051.

"While not intending to hold that in every case the question as to whether or not the communication exceeds the privilege of the occasion is a question for the court, we have reached the conclusion that in this case, the letter being plain and unambiguous in its terms, the question as to whether or not it is within the privilege is a question for the court, and that, acceding the facts as to the occasion of its publication to be as detailed by all the witnesses for appellant, the letter was not a privileged communication. We have carefully considered its language and the entire letter, and are constrained to hold that it makes the general and unqualified charge that Shumaker is not brainy, is not honest, is not optimistic, is not diplomatic, and that such charge in said letter, communicated to all the-agents of the Lamar Life Insurance Company, without reference to whether or not they knew of Shumaker’s criticisms, and without reference to whether or not said criticisms had been made 'in their communities, was in excess of the privilege of the occasion, and was not relevant to a proper refutation of the charges and criticisms that it had been reported to- Hines Shumaker had made in certain localities. The letter goes beyond legitimate, refutation, and broadly, generally, and unqualifiedly denounces Shumaker. A proper communication, and in strong language, to the agents who reported the rumors as to the criticisms of Shumaker, might have been sent to said agents, or published in the localities where the rumors were reported to have been circulated by Shumaker; but appellants were not warranted ingoing beyond that, a'nd denouncing Shumaker as lacking in brains and as dishonest to the extent and in the manner that-was done in this case. There must be some bounds within which the right to retort upon one’s adversary should be prescribed, or else there would be-no sacredness to character. It-is not pleaded by the appellants that Shumaker was lacking in-brains, and generally dishonest as matter of fact, nor was there any proof from which the jury would have been authorized in reaching such a conclusion. Appellant sought by their pleadings and proof to qualify the language of the letter, by pleading; and endeavoring to prove that the letter did not charge, and was not intended to charge, generally, dishonesty to the plaintiff. But the question for the court to determine is, not what language the appellants meant to use, but what did they mean by the language actually employed? We think, therefore, that the court below did not err, for the reasons stated, in granting the peremptory instruction.

But one other question remains to be considered, and that is as to the amount of the damages. The question of damages is peculiarly one for the jury, and in a case of this character the plaintiff is not confined to recovery of mere pecuniary damage, but it is rarely the case that the compensatory damages to which a plaintiff, who has been defrauded, is entitled, can be adequately measured by the extent of his pecuniary loss. It does not appear, under the very liberal and accurate instructions that were granted by the court below on the question of damages, nor from the proof and cárcumstances of the case, that the damages awarded were exemplary alone, nor that there were no actual damages in a truly legal sense, and we do not feel warranted in disturbing the judgment of the court below, in view of the remittitur required by the trial judge.

It follows, therefore, that the judgment must be affirmed.

Whitfield, C. J., having recused himself in this case, R. E. Wibboubn, Esg., a member of the supreme court bar was appointed special judge and presided as such in his place: