Wrought Iron Range Co. v. Boltz

W. IT. Cook, J., delivered the opinion of the court. G. J. Boltz, appellee, sued the Wrought Iron Range Company and. Clark Young, appellants, for damages for an alleged libel, and there Avas a verdict and judgment for plaintiff, from Avhich this appeal is prosecuted. The Wrought Iron Range Company Avas engaged in the business of selling stoves, and through its sales agent, Gibson., sold a stove to appellee. Appellee signed a Avritten order or application for the stove, and for the purchase price of one hundred and seven dollars, he executed a note signed by himself and wife, payable twelve months after date. When the stove Avas ready for delivery the original order, Avith the Avords “no good” Avritten thereon, Avas [557] placed in tlie hands of the defendant Clark Young, one of the agents of the stove company, and he was instructed to deliver the stove and collect fifty-seven dollars on the purchase price thereof, and in the event this cash payment was refused he was instructed not to deliver the stove. The plaintiff was employed away from home at that time, and he arranged with a neighbor, J. A. Faulk, to assist in receiving, unloading, and placing the stove when it was delivered, and when the defendant Young carried the stove to plaintiff’s residence he met Faulk and discussed with him the probability of being able to collect the cash payment, and showed him the order containing the notation “no good.” ITe then proceeded to plaintiff’s residence, and there explained his instructions to plaintiff’s wife, and requested the payment of fifty-seven dollars on the purchase price of the stove. Mrs. Boltz explained her inability to malee this payment, and demanded to know why this change had been made in the terms of the contract, and in explanation of his demand he showed the order to her. The cash payment was refused, and Young1 carried the stove away, and when plaintiff learned from Faulk of the occurrences of the day he proceeded at once to the'pffi.ee of his lawyer, and this suit followed. It is earnestly insisted that the request of the defendants for a peremptory instruction should have been granted for the following reasons: First, the words “no good” are not libelous per sc; second, there was no publication shown; and, third, there was no malice shown and no damage proven. It is sometimes difficult to determine definitely when language which imputes insolvency or want of credit is actionable per s\e, and especially is this true when it is used of or concerning an individual. There is a well-recognized distinction-, when the language refers to the profession, trade., business, or calling of a person, and when it is published of or concerning the person as an individual. In Nichols v. Daily Reporter Co., 30 Utah, 74, 83 Pac. 573, [558] 3 L. R. A. (N. S.) 339,116 Am. St. Rep. 796, 8 Ann. Cas. 841, the rule is announced as follows: “Words charging nonpayment of debts, insolvency, or which tend to impute want of credit or integrity, are actionable without alleging special damages when they refer to merchants, tradesmen, and others in occupations where credit is essential to the successful prosecution; but, generally, these same words are not per se actionable when they do not refer to persons in their office, profession, trade, business, or calling.” See, also, Hanaw v. Jackson Patriot Co., 98 Mich. 506, 57 N. W. 734; McDermott v. Union Credit Co., 76 Minn. 86, 78 N. W. 967; Stannard v. Wilcox & Gibbs Sewing Mach. Co., 118 Md. 151, 84 Atl. 335, 42 L. R. A. (N. S.) 515, Ann. Cas. 1914B, 709; 17 R. C .L. 299, 300. As to language which imputes dishonesty or want of credit in an individual, it is very generally recognized that it is impossible to lay down any definite rule which will govern in all cases, and that the language used and the particular facts and circumstances of each case must control. In McDermott v. Union Credit Co., 76 Minn. 86, 78 N. W. 967, 79 N. W. 673, it is said: “The courts have, for practical reasons and considerations of public policy, to draw the line somewhere, and this has often to be done by a gradual process of exclusion and inclusion, depending upon the particular facts of each case as it arises.” It may be stated generally that any written or printed language which tends to injure one’s reputation, and thereby expose him to public" hatred, contempt, or ridicule, degrade him in society, lessen him in public esteem, or lower him in the confidence of the community, is actionable per se, and language which imputes that one is wholly unfit and unworthy of credit necessarily and naturally tends to injure his standing and good name in the community, and lower him in the confidence and respect of his neighbors. When the words “no good” are used in such manner1 and connection as.to denote that one is en [559] gaged in making accounts which he does, not intend to pay, and is dishonest and wholly unfit and unworthy of credit, this naturally and necessarily tends to injure his standing and good name in the community, and lower him in the confidence and respect of his neighbors, and when these words are so used as to injure one’s credit and his reputation for integrity and honesty, we conclude that they are actionable per se, but whether the use of the language under the particular facts and circumstances in this case is libelous per se, it is unnecessary to decide in view of our opinion upon another phase of the case. The declaration alleges a publication to J. A. Faulk and Mrs. Hattie D. Barr, neighbors of the plaintiff!, and to plaintiff’s wife. We recognize the well-established rule that ordinarily a communication to the wife of words defamatory of her husband is a publication in law. But in this case the words were used of and concerning credit based upon a contract to which the wife was a party. She had signed the note, and proposed to become jointly liable with her husband for the purchase price of the property, and the communication to her was in reference to credit' to be extended to the husband and wife jointly,, and under the particular’ facts here Ave do not think the communication to the wife concerning this joint liability and credit Avas a publication. The order containing the offending language Avas also exhibited to J. A. Faulk, but the evidence sIioavs that Faulk' Avas the agent of the plaintiff for the purpose of receiving and placing the stove, and for that purpose lie stood in the place of plaintiff, and the exhibition of this order to Faulk in explanation of the reason for the demand for a cash payment and the refusal to deliver the stove did not constitute a publication. The evidence totally fails to show any publication to Mrs. Barr, and under this state of proof the defendant’s request for a peremptory instruction should have been granted, and the case is therefore reversed, and judgment entered here for appellants. Reversed and judgment here for appellants. Reversed.