81 So. 265 | La. | 1919
Lead Opinion
This is an action sounding in damages for alleged slanderous and libelous words and matter which plaintiff claims were uttered and published by defendant in order to compel her to pay a debt which she alleges she did not owe. Summarized, the grounds of complaint were, in substance, about as follows:
(1) Insulting and defamatory remarks made at King’s grocery store, corner Thalia and Dryades. streets, in which it is alleged that defendant called her a “deadbeat” and asserted that she was “no lady.”
(2) Similar remarks made to plaintiff’s daughter, Mrs. Blanche McCann, on Melpomene street, in which defendant is alleged to have again referred to plaintiff as a “deadbeat” and stated that she was “no good.”
(3) Printing and publishing plaintiff’s name on a list of delinquent debtors.
(4) Mental suffering arising from alleged blackmail or attempted extortion, through threats of exposure by placing said lists in merchants’ display windows and advertising the account for sale in the newspapers. '
Defendant excepted to the petition on several different grounds, which will be discussed in their proper places, and these being overruled, answered, denying the alleged slander and libel. He, however, admitted his efforts to collect the debt, which he claims is still due and unpaid.
The case was tried on its merits, and plaintiff recovered judgment of defendant for the sum of $500, with legal interest from judicial demand. Defendant appealed, and plaintiff has answered, praying for an increase in the judgment to the amount originally claimed, to wit, $7,000.
Exception as to Residence.
“That nine years ago your petitioner, Mrs. Ceeile Tuyes, purchased certain secondhand fur*727 niture from Loan J. Chambers, of lawful age, mid a resident of this city mid state,” eto.
We think the court to which the petition was addressed could take cognizance of the name of the city and state in which it sits, and the use of the words “this city and state” could mean no other than the city and state in which it is drawn and presented. It was sufficient to inform both the court and the defendant that the city of New Orleans and state of Louisiana were intended.
As to plaintiff, it is true that she does not state her residence at the usual place in the petition, according to the customary form, but it is amply set out in other paragraphs thereof; for instance, in article III, the circular giving her address is annexed to and made a part of the petition, in article IV, where reference is made to “petitioner’s residence on Thalia street,” and in article X she sets forth the fact that she has lived in New Orleans all her life. While it would, perhaps, be better, as a matter of nicety of pleading, to set forth residence in the usual and customary manner, we know of no law which requires that this be done, and none has been cited.
The exception was therefore properly overruled.
Exception of Vagueness.
Exception of No Cause of Action.
“That she has almost had nervous prostration on account of his actions towards her, as she is ashamed to go out in the street in her neighborhood, and fears to meet any of her friends, knowing as she does that the said Loan J. Chambers has endeavored, by every manner in his power, to injure, harass, persecute and torment her, by letting everybody possible be*729 lieve that she owes him thirty-two dollars and seventy-five cents ($32.75) and refuses to pay same.”
While the language could, have heen stronger, we think the fair inference is that the people in her neighborhood have been induced to believe that she is trying to avoid and refuses to pay an honest debt.
There are otiles features of the petition which raise serious questions of actionable conduct, in addition to the technical charges of slander and libel. They smack of the' elements of blackmail, which is severely denounced by our laws as a necessary felony. We quote:
“If any person shall knowingly send or deliver, * * * or shall cause to be received by another any letter, postal card, writing or printed matter,' threatening to accuse him or her, or any member of his or her family, or to cause him or her, or any member of his or her family, to be accused of any crime, * * * or to charge him or her, or any member of his or her family, with any fault, infirmity or failing, or to publish or make known his or her faults,
* * * or impair his or her good name, reputation, or credit, * * * with intent to extort money, goods, chattels, or any promise or obligations for the payment of money or the transfer or delivery of any money or other valuable thing whatsoever, * * * or if any person shall follow or pursue, or maliciously intrude himself or herself upon another at his or her house, place of residence, or at his or her place of business, * * * where she or he may be engaged or employed, or in any public street or public place, * * * shall be imprisoned at hard labor for not less than one year nor more than twenty years, and shall be fined not exceeding two thousand dollars,” etc. Marr’s Rev. Stat. vol. 1, p. 561, § 1699 (Act 110 of 1908, p. 166).
“It is useless for us to refer to decisions of courts exercising functions where the common law prevails upon a subject-matter in regard to which we have to be controlled by local law. In Prance, not only do material injuries furnish ground for legal actions for redress, but so, also, do what are referred to there as ‘moral injuries.’ The doctrine rests there upon jurisprudence. In Louisiana it rests upon positive statute. Article 1382 of the Code Napoléon, which relates to offenses and quasi offenses, corresponds to article 2315 of our Civil Code,” etc.
He then quotes at length from the Prench authorities. That was a case in which the plaintiff sought to recover damages for the failure to deliver a telegram advising her (a mother) of the serious illness of her son, and her consequent inability to reach and be with him prior to his death. It was a claim purely for “mental pain and anguish,” since there was no privity of contract between plaintiff and the telegraph company; she not having- sent the telegram herself. The district court had given judgment for $250, the case was appealed to the Court of Appeal, which reversed the lower court and sustained an exception of no cause of action, and was before this court on writs of certiorari and review. The judgment of the Court of Appeal was reversed, and the case remanded to be decided upon its merits. Again, in the case of Martin v. The Picayune, 115 La. 979, 40 South. 376, 4 L. R. A. (N. S.) 861, the same distinction between the civil and common law is pointed out.
If a recovery may be had for mental suffering growing out of cases of the character above mentioned, then why should the victim of blackmail or extortion not have the same right, when it is considered that the illegal act has for its main object the bringing about of such a mental condition as will induce compliance with the unlawful demand? The statute was passed for the specific purpose of protecting that mental equilibrium and peaceful enjoyment of one’s own which should be accorded every one by his fellow man. Besides, the right to so enjoy the fruits of one’s own labor is a species oí property, which is destroyed by such illegal efforts to deprive him thereof, and to that extent, at least, he suffers an actual injury. See article 460, R. O. C. The violation of this law does not affect the public at large, except to the extent that the violation of any criminal law may be said to injure society as a whole; but its effects upon the individual against whom the acts are directed are immediate and serious. The damage is special.
The lower court did not err in overruling the exception of no cause of action.
On the Merits.
We have found it necessary to discuss most of the questions of law involved in this case in passing upon the exceptions, and will therefore proceed to a discussion of the record on the four grounds of. complaint mentioned in the beginning of this opinion.
On the whole, we think the case is sufficiently proven against defendant, and that the amount allowed by the lower court was correct. Let it be understood that we do not hold that creditors have not the right to use all legitimate means to collect their just accounts. The law points out those methods. The insolvency of the debtor is a proper matter for consideration when the credit is extended.
For the reasons assigned, the judgment of the lower court is affirmed, with costs.
On Application for Rehearing.
Dissenting Opinion
(dissenting in part). I respectfully dissent from the proposition that the uncorroborated testimony of plaintiff’s daughter, contradicted by the testimony of defendant, defendant being unimpeached as a witness, but his t. .imony being, on the contrary, fair on its face, is sufficient proof