Muetze v. Tuteur

9 L.R.A. 86, 46 N.W. 123, 77 Wis. 236, 1890 Wisc. LEXIS 200

• Court: Wisconsin Supreme Court
• Decided: June 21, 1890
• Status: Published

Opinion

ORtokt, J.

This action is for libel, and the plaintiff recovered $511. The facts are substantially as follows:

The plaintiff is a jeweler by trade, but at one time kept a saloon, and traded with the defendants, who were merchants in goods suitable to the saloon business; and finally, up to July, 1883, there was a1 balance of account against the plaintiff, which the defendants claimed amounted to the sum -of $23.13, but the plaintiff claimed it to be much less than that amount. There was an association, with its central office at Chicago, called “ The United States and Canada Dealers’ Protective and Detective Association,” claimed to have been incorporated under the laws of Illinois (but which had not been), the object of which is stated on an envelope used by it to inclose correspondence by mail to be “ an organization of business and professional men for colleobmg lad debts.” The answer in respect to the association is as follows: “ These defendants admit that they were members of an association known [as above described], and allege that the same is organized for the purpose of protecting dealers giving credit against worthless debtors, and against those who contract debts and do not pay; and for the further purpose of communicating to the members of such association, for their mutual protection" and safety, the names of all persons against whom unsettled claims remain outstanding and unpaid in favor of members of said association, and which names have been reported by members to the central office, after having taken the necessary steps required by the rules of said association to be taken by the members thereof before reporting such names in order to give the debtor ample and full notice thereof and ample opportunity to settle all claims and avoid such.report; that the said association publishes a book at regular intervals giving the names of all persons so reported by members, and against whom there are unsettled claims in favor of members; . . . that said book is distributed only, to members of the association, and to no one else whatsoever, and all communications made by any member to said association, or by said association to any of its members, are strictly confidential and secret, for the purpose of their mutual protection and security.”

■ • On February 9, 1888, the defendant sent to the plaintiff, at La Crosse, one of the letters of said association, headed by its regular designation, signed by the firm of Isaac Tu-teur c& Bon, in which they say that they have become members of such association, and then state its general purposes, and ask the plaintiff to call and settle, or they shall be obliged to report his name to the association before February 18th, “ after which date tlieir matter goes to press.” On said 18th day of February the plaintiff received another letter through the mail, with a similar heading, and signed “ Agent,” in which it is said: “ I. Tuteur & Son, one of the members of our association, informs me that you have received our association letter in regard to your indebtedness, and that you have failed to respond. Flow, before reporting your name to the main office for publication, allow me to inform you as to some of the consequences of being published in this manner as a delinquent.” The letter then states the consequences as above stated, and that if the plaintiff did not wish his name so published he must by all means call on the defendants and make some satisfactory arrangement in regard to the claim on or before the 29th day of February, or his name would go forward to the main office.

On 'March 1st another letter was written to the plaintiff, dated at Chicago, stating that the defendants, a member of the association, informed them about the claim, and that reasonable time had been given him to pay it, and notifying him that if he did not pay by March 15th the consequences would be as previously threatened. This letter, with a similar heading, was signed by C. E. Collin as secretary. Another letter was written from Chicago, dated March 10th, notifying plaintiff to make immediate payment of the claim within twenty days, and another one dated Chicago, June 10, 1888, with a similar notice to pay within ten days. These two last letters were inclosed in an envelope, respectively, and passed through the mail to plaintiff in La Crosse, and the envelope was indorsed as follows: “ Return in twenty days to the United States and Canada Protective and Detective Association, an organization of business and professional men for collecting tad debts. Central office, 139 Madison Street, Chicago. For Paul Muetze, La Crosse, Wis.” Each of these letters or notices was also headed, “Main Office Notice.” There were two other letters received by plaintiff from the main office at Chicago,— the first dated August 10th, and the other September 12th; the first notifying plaintiff to pay within twenty days, and the other within eighteen days, inclosed in similar envelopes, excepting the clause, “ for collecting bad debts,” which is omitted. The envelope containing this clause, “collecting bad debts,” is of red paper, and these words are in very large type, so as to attract special attention.

After these communications, the plaintiff applied to a Mr. Borreson, a jeweler of La Crosse, for whom he had at one time worked, for credit, or to be trusted for a small amount, and he refused on account of his having received a book of said association containing the name of the plaintiff as a person unworthy of credit. The book was issued July 1, 1888, and contains the plaintiff’s name among many others in various parts of the United States. In a preface to the book, addressed to members, it is stated that the association “ is not a collection agency . . . tut uses its influence to malee your debtor pa/y you.” When the debtor paid the claim, his name was taken out of the book. As stated in the answer, the debtor is given an opportunity to pay, if he will, before bis name is inserted in tbe boob. Tbe several letters are so many threats that tbe plaintiff’s name will be so published if be faffs to pay. Tbe defendants bad demanded $23.13, and tbe letters make tbe same demand; but tbe defendant admitted, as a witness, that be bad made a mistake of $3.05 in tbe account, and that tbe claim was only $20.0'T.

I have stated tbe facts more fully and explicitly in order to show what are tbe objects of tbe association. It is claimed by tbe learned counsel of tbe appellants that its purposes were right and honorable, bke a railroad company that issued a pamphlet containing tbe names of its discharged employees, to be circulated among other companies, or commercial agencies and the bke, for mutual protection against unworthy persons. Tbe envelope of two letters from Chicago contains a distinct libel in itself, which could have been read, and probably was read, by many persons not members of tbe association. They are made to attract special attention, and publish tbe fact that tbe association was in correspondence with tbe plaintiff for tbe purpose of collecting a lad debt of him, and implies that be is a bad debtor who fails or refuses to pay bis honest debts, and that be is unworthy of credit. But this is not ab. It is also a pubbc statement that tbe object and purpose of tbe association are for “ collecting bad debts.” Tbe several letters were written and sent to tbe plaintiff, and such letters are no doubt sent to others to cobect bad debts; and, if they fail to pay, their names are pubbsbed in tbe book also for tbe purpose of collecting bad debts, for, as soon as payment is made, tbe publication of their names is discontinued. They are then pubbsbed in a bst of those who have settled up. In tbe book in evidence there is such a bst of those whose credit is restored by their having paid up their bad debts. Tbe object is not to protect tbe members from trusting this class of debtors, but to aid them in coercing payment. This book of the association, with its list of delinquent debtors, is the pillory or punishment threatened and to be endured if they do not pay and until they pay their debts, and then they are discharged. This object is too apparent to be disguised. Why write so many letters, or why write at all, to the debtors, if the object be to publish to the members a list of delinquent debtors, or of persons unworthy of credit, to protect them against trusting them? After a debtor has been thus coerced into reluctant payment, he is no more worthy of credit than he was before. Why discontinue his name among the bad debtors, and place it among those who pay their debts ? They say, in their address to the members, “ it is to make your debtor pay vpP It follows that the members, to whom this publication is sent in book form, are not interested in it in any other way than to make their own debtors pay up.

The communications of this • association are not only libelous and not privileged, but they would seem to constitute the offense of “ threatening communications,” as defined in sec. 4380, R. S. The complications of this peculiar association, to bring it within, the protection of the law, make it difficult to treat less briefly. As we now1 understand the real character of this association and of its publications, we may apply the law involved in the various exceptions.

1. Was it error to allow the plaintiff to testify that Borre-son exhibited the book to him? The learned counsel of the appellant contends that such act could not constitute a libel or publication of a libel, and that the defendants cannot be charged with the responsibility for Borreson’s violation of his obligation to keep the names in the book confidential. Probably not, and yet the plaintiff had the right to find out, if he could, why Borreson would not trust him; and it was certainly proper for him to prove, if he could, that it was on account of this publication.

2. Was it error to sustain the plaintiff’s objection to tbe question put to bim on cross-examination: “ ITow many men in this city did you owe besides Tuteurf ” The obr ject of this question must have been to. justify or mitigate the libel by showing that the plaintiff had no credit or character for trustworthiness that could suffer by it. There is no principle better settled than .that in such cases specific acts cannot be shown, and that it is a question of general character or reputation alone. Wilson v. Noonan, 27 Wis. 598; Campbell v. Campbell, 54 Wis. 90.

3. Was it error to overrule the motion for a nonsuit? It is contended that the letters of the defendant to the plaintiff were not in themselves libelous, and that the other letters sent to him from Chicago were not, and that the defendants were not shown to be responsible for them, and that there was nothing in the book that imputed any bad character to the plaintiff as being unworthy of credit, and. that theré was no evidence that any other copy of the book, except the one received by Borreson, had been sent to any one, and, finally, that the envelopes inclosing two of the letters, containing the words, “ for collecting bad debts,” were not libelous.

The letters were not libelous in themselves, but the defendants’ letters were proper to show their connection with the association as one of its members, and with its proceedings against the plaintiff. The defendants set in operation the whole scheme, and caused the other letters to be written and sent to the plaintiff, and they were sent for them and in their behalf. It was through the agency of the association and its officers that all the communications were made to the plaintiff, and finally his name placed in the bad debtor list in the book of the association, and the defendants were directly responsible for all that was done.

The learned counsel contends that the two envelopes containing the words, “for collecting bad debts,” were not only not libelous, but a mere violation of tbe laws of tbe post office department, and which were changed as soon as it was decided about that time that it was an offense against the postal laws of the United States. Was it not decided that it was an offense because the words were abusive and libelous? There certainly could not have been any other reason. But I have already shown that the words imputed to the plaintiff a bad character and a want of credit, which implied that he was a cheat and a swindler and that the correspondence inclosed was for the purpose of collecting from him a bad debt.

The book itself claims that they have members all over the country, in whose hands the book is placed; and if Borreson had one it was strong evidence that all the members were supplied with it. At least, such would be the presumption of fact from the declared intention of the association. The plaintiff was notified and threatened in the letter signed by Collin, the secretary, that if he did not pay up by the 15th day of March, 1888, he would be published in their “ list of delinquent debtors, which will 1)6 delivered to all members of the association im, the United States cmd Ornada.” The sending through the mail of those envelopes with such an imputation of dishonesty, and the distribution of the book among the members with the plaintiff’s name in the black-list of bad debtors, constituted sufficient publication of the libel. The effect as well as the intention of these libels was to discredit and disgrace the plaintiff among business men; and this was the punishment threatened if he did not pay as ordered. If it would work no injury to the delinquent, it would not operate as an inducement for him to pay up.

It is claimed that no special damage to the plaintiff was proved by Borreson refusing to trust him for a small bill of jewelry, because it was not shown that Borreson had ever trusted him, or would have trusted him but for the book. It is sufficient if Borreson refused Mm credit on account of the book, and the question of special damages -was for the jury. This disposes of the reasons urged in support of the defendants’ motion for a nonsuit, and also in support of the motion that the court direct the jury to find for the. defendants.

4. Errors are assigned on certain instructions to the jury. The learned circuit judge said to the jury: “ The evidence shows that three letters, I think, -were mailed from La Crosse by the defendants, of this character.” The learned counsel claims that this error of fact was very injurious to the defendants, because it would imply that all three of such letters were inclosed in that offensive envelope, when in fact there were only two of such letters. The jury would' probably recollect that there were only two of such envelopes, whether they should be misinformed as to the number of letters or not. The statement was not positive, but made rather inquiringly by the qualification, “ I think.” In such a case, where the court mistakes the evidence in this way from the want of a distinct recollection of it, it is the duty of the counsel to suggest its correction at once, and not silently reserve it for a future exception. He owes this duty to the court. It is not an error of law. "We may presume that the jury remembered the evidence for itself, and we cannot presume that they were at all affected by this mistake. The counsel, in such a case, should be held to have waived the error hy Ms silence when he ought to have spoken. It is not very material any way, and should be disregarded.

The learned judge instructed the jury, in substance, that the communication would not be privileged if made to persons not interested in knowing the standing of the plaintiff; for instance the members in Canada. This Mstruction presupposes that the communication was privileged so far as the members were concerned who had an interest in knowing the standing of the plaintiff. This did the defendants no harm, for most clearly the jury correctly found that it was not privileged, and this question was submitted to them by the court. We have seen that there was no object or purpose of the association to protect or serve any one except the creditor interested in collecting the debt. The authorities cited by the learned counsel have no application to such a case. There can be no question but that the communications were grossly libelous. On this general question, see the authorities cited in the brief of the learned counsel of the respondent. In speaking further on the question whether the matter was privileged, the learned judge said to the jury': “Whether it was a communication that was desired, well, there is no evidence that it was desired by anybody.” This is a little obscure, but its meaning was, probably, that no one was interested in the matter except the defendants, and that no one else had any reason to desire it. The jury could not have been materially misled by it, whatever it might mean.

The verdict is not excessive.

The respondent’s counsel omitted to argue these various exceptions, because he insisted that the certificate to the bill of exceptions is insufficient to make them a part of the record. The certificate is that “ the above and foregoing was and is all the testimony given on the trial of the above-entitled action.” But the bill of exceptions is regularly signed by the judge, as the law requires, and thereby became a part of the record (sec. 2873, R. S.), and it contains all the exceptions and the matters to which they relate. That is sufficient. What it contains need not 'be stated in the certificate, except whether it contains all the evidence. The objection is too technical.

We can find no error in the record.

By the Court.— The. judgment of the circuit court is affirmed.