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(100 So.) with the action for libel against the insur [4] Our conclusion is that the exception ance companies.

of misjoinder is well founded in law and in [2] With respect to the several insurance reason. Having reached this conclusion, we companies and their agents and solicitors the might well end this discussion here by disallegations of conspiracy made in the peti- missing the suit as to all the defendants, tion, when taken in connection with the res-sinceolutions of the Underwriters' Association

"Where an exception of misjoinder of deand the publication headed “Parasites and fendants is sustained, the court cannot discrimPirates," show a sufficient community of in- inate by dismissing the suit as to one defendant, terest and singleness of purpose as to au- rather than another, but must, ordinarily, disthorize the joinder of all of said companies miss it as to all.” Davidson v. Frost-Johnson and their agents in one suit.

Lumber Co. et al., 126 La. 542, 52 South. 759. As said by the author in Newell on Slander and Libel (3d Ed.) p. 467:

However, as the question of whether the “But with libel it is different; the publication plaintiff has a cause of action is directly of a libel may be the joint act of two or more presented by the petition and the exception persons, who may in such case be sued either of no cause of action, and as it is to the in. jointly or separately at the election of the terest of all parties that the issue should be plaintiff,"

settled, at this time and in this suit, we

shall proceed to do so. [3] But, while this is true as regards the [5] The argument, oral and on brief by the published libel which may be the joint act counsel on both sides, presents an able and of two or more individuals or corporations, exhaustive review and discussion of the law it is not so with respect to an action for and jurisprudence bearing on practically slanderous words, for the reason that the every phase of libel and slander. But, after words. of one person are not the words of the a careful consideration of the authorities others. The words of each constitute an and a study of plaintiff's petition in connecentire and distinct offense.

tion with the alleged libelous matter, we In Duquesne Distributing Co. v. Green- are of the opinion that the case resolves itbaum, 135 Ky. 182, 121 S. W. 1026, 24 L, R. self into the simple question as to whether A. (N. S.) 955, 21 Ann. Cas. 481, it was said: the resolutions adopted by the Life Under"All the authorities are agreed that slander, writers' Association and the publication unwhich is an oral utterance of defamatory mat- der the caption “Parasites and Pirates" conter, must necessarily be committed by an in- stitute in law and in fact actionable libel. dividual. Two or more persons cannot in the It will be recalled that, although the plainvery nature of things jointly utter the same tiff had obtained contracts from three insurwords. Each must and does speak for himself, ance companies as agent and solicitor for and each is liable for his own language. A dozen persons might repeat identically the same

life insurance, his principal and doubtless slanderous words at one and the same time or most lucrative field of endeavor was among at diferent times, and each would be liable those who were already insured with the dein an action against the individual; but two or fendant companies. His declared business more of them could not be jointly sued.” was to advise such policy holders to surren

der and cancel their policies on the repreIn the above case a further reason was sentation that he could, on account of his pointed out why two or more persons could long experience and superior knowledge, get not be joined in an action for personal slan- for them an advantageous adjustment and der by words, and it is this, that the same settlement and an equal amount of insurance words spoken by one may occasion greater at less cost to them, or a greater amount of injury than those spoken by another, and insurance at the same cost. that each should be responsible only for the To this end and in support of his scheme injury inflicted by his own independent act. he accused the insurance companies of havThe author cites Cooley on Torts, p. 124. ing, in their own interest and to protect the

The application of the rule to the instant interest of their agents and solicitors, made case is apparent.

The three individuals use of such technical language in the policy could not be held, jointly or separately, for contracts that an ordinary individual was the alleged libel of the insurance companies, not able to understand and comprehend his por could the insurance companies, separate- rights under the option and privilege suply or collectively, be held liable for the slan- posed to be granted in the policy. In other derous words of the three individuals. words, the plain imputation, according to

Admittedly, the libel (if it is a libel) charg- the plaintiff's own judicial confession, was ed against the insurance companies in the that the insurance companies had deliberateFery nature of the case would cause the ly, purposely, and advisedly so concealed the plaintiff to suffer much greater damage than option and privilege that none but an exwould the mere defamatory words attribut- pert like the plaintiff, with a ripe experience ed to the individuals.

and study of such matters, could advise the 100 SO.-28

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policy holders of the true intent and mean- surance company, as we know that it is ing of the contract.

against the interests of the policy holder." This was unquestionably a grave and seri. We can discover nothing wrong or injurious charge against the insurance companies. ous to the plaintiff in this declaration. The A charge which affected the integrity and plaintiff had made the issue, and the comfair dealing of the companies with their pa- panies had the undoubted right to meet it by trons and customers, and coming from an condemning the practice of canceling poliinsurance solicitor licensed by the state, was ices in well-established companies and to adobviously calculated to affect their standing vise their policy holders against accepting and to destroy the confidence, not only of the advice of the plaintiff. the policy holders themselves, but of the Fourth. The practice of the plaintiff was insurable public generally, in life insurance. called to the attention of the executive of

It is not going too far to say that such ficers of all life insurance companies and the conduct and practice on the part of the general agents, to the end that all busiplaintiff placed him beyond and outside of ness submitted by the plaintiff might be the place of a fair and legitimate rival and scrutinized to determine whether it involved competitor in the life insurance business. the surrender of the old policy in any wellInstead of becoming a competitor whom the established legal reserve life insurance comlife insurance companies could welcome, he pany, and, if it did, that the acceptance of assumed the attitude of a menacing antag- the business be declined. There is to be onist, and his success avowedly depended found nothing libelous lurking in this resoupon and

was measured by his ability, lution. The insurance companies collectively through the methods we have outlined, to or separately were interested in preserving destroy the business of the defendants by in the integrity of their contracts, and had the ducing the holders of policies to surrender legal right, when they found what they beand have them canceled.

lieved to be an unjustifiable and an unfoundIt was in defense against this assault on ed attack made upon them, to call upon all their business and to counteract the effect companies engaged in writing life insurance of plaintiff's practices, which was regarded to decline such business, if it was the fruits as prejudicial to the interest of holders of of canceled and surrendered policies. There seasoned and long-standing policies, that is certainly nothing in the resolution to inbrought about the adoption of the resolu- dicate malice or bad faith on the part of the tions. Let us analyze the resolutions, and insurance companies, and they had a comsee, whether they went beyond a legitimate mon interest in protecting their own interest defense of the attack made upon the com- and what they conceived to be the rights of panies.

their policy holders against a common anFirst. The resolutions announced that the tagonist who sought to destroy their business attention of the Life Underwriters' Asso- and to injure their clients. ciation had been called to the fact that the [6] Moreover, the resolution under the cir. plaintiff, styling himself an actuary, was cumstances must be regarded as a privileged suggesting and urging the holders of policies communication. Mr. Newell in his work on in companies whose representatives were Slander and Libel (3d Ed.) p. 475, says: members of the association to surrender such

A communication made in good faith, upon policies and rewrite in such companies as any subject-matter in which the party has an the plaintiff might propose, representing interest, or in reference to which he has a that such a course could be pursued with duty, either legal, moral or social, if made to a profit to the insured. There was nothing person having a corresponding interest or duty, false and malicious or vindictive in this an

is qualifiedly privileged." nouncement; on the contrary it was but a

And in Richardson v. Cooke, 129 La. 365, statement of a fact admitted by the plaintiff 56 South. 318, it was held that there is a in his petition.

qualified privilege where the person making Second. "As life underwriters, knowing the communication complained of bas an that the promises on which such conclusion interest in the subject-matter, and the peris based is unprofitable to the insured, we

son to whom it is made has a corresponding deem it a duty to our clients to put a stop interest. to this practice.” This was but a denial of Fifth. This involves the request that the the assertions made by the plaintiff, and it companies employing the plaintiff cancel his was a duty which the companies owed their license to do business in Louisiana, if it clients to protect them against the actions should be found that he was guilty of the of the plaintiff which the companies deemed practice charged against him. That the emprejudicial to the clients' interests.

ployers of plaintiff had the legal right to Third.

That we condemn the take such action is not disputed, and it practice of conceling old policies in any sol- would seem that it makes but little differ. vent established life insurance company, to ence from what source they got the informabe replaced in the same or any other life in- tion upon which they based their action.

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(100 So.) The said companies are not liable to the Pirates." That article merely called attenplaintiff for any loss he may have sustained tion to the consensus of opinion of bankers as a result of the, withdrawal of his con- and others in favor of life insurance; that tracts, nor can the other insurance compa- | policies are rated at the age of issue and nies be held liable, and this is true, even could not be replaced to the insured's adthough the three companies acted on the sug- vantage at the higher rate applicable to atgestion of the other companies.

tained age; that any attempt by so-called "A person has an absolute right himself to audit and adjustment to change life insurrefuse to have business relations with others, ance contracts in force is solely for the whether the refusal is based upon reasons, or profit of the individual attempting the is the result of whim, caprice, prejudice, or change. Free advice is proffered by the inmalice." Lewis v. Huie-Hodge Lbr. Co., 121 surance companies, and policy holders are La. 658, 46 South. 685.

warned to beware of others. [7] All of the companies made defendants

[8] There was certainly nothing objectionin this suit had the right to refuse to have able in this warning and advice. If the business dealings with the plaintiff, and plaintiff was in the class to whom the article what they could do in this respect separate was directed, he ha no just complaint. He ly they could do conjointly, in view of the has no cause to reproach the insurance comconduct of the plaintiff towards all of the panies, much less a right to inflict a damage insurance companies, and of their common

upon the companies for an act which he had interest in the subject-matter which severed provoked. Moreover, the plaintiff's name the business relations with the plaintiff.

was not mentioned in the article. "Insurance companies cannot be made liable

“Where defamatory words reflect upon a in an action for damages, for having conspired class of persons impartially, and there is nothand agreed with each other that they would not ing to show which one is meant, no action lies insure any boat in which a particular person at the suit of any member of the class." New. should be employed, in order to prevent that ell on Slander and Libel (30 Ed.) p. 468; Mielly person from obtaining employment." Orr v.

v. Soule, 49 La. Ann. 800, 21 South, 593. Home Mutual Insurance Co., 12 La, Ann, 255, 68 Am. Dec. 770.

[9] Aside from all that has been said, how

ever, the plaintiff, in his attempt to recover The rule may have been too broadly stat- damages from the defendants for the causes ed in the foregoing quotation, and perhaps set out in his petition, is met with an insurshould be so modified as not to apply to con- mountable legal obstacle appearing upon the spiracies and combinations put into execu- face of the papers, and that is the doctrine tion from wanton or malicious motives with- of provoked libel. It is a universal rule of out justification of competition, and without law and jurisprudence that one who is at interest or lawful purpose.

fault himself cannot recover civil damages The instant case, however, is not such a

from another who has retaliated in kind, case. All of the insurance companies were We shall not attempt citation of the many acting in furtherance of a common interest adjudications adhering to and applying this for their own protection and in defense of rule. In Burt & Co. v. Casey Mfg. Co., 107 an attack of a common adversary, and there La. 231, 31 South. 667, it was said: was an entire absence of any improper or

“The law lends its protection to every permalicious motive. The case is clearly dis

son, natural or juridical, to shield its good tinguishable from Webb v. Drake, 52 La.

name, not to the extent, however, of protectAnn. 290, 26 South. 791. In that case, as the ing one and condemning the other when the court said in Lewis v. Huie-Hodge Lbr. Co., complainant has itself been at times supra

intemperate in its seeking to maintain the van.

tage ground it had perhaps gained in its busi• The defendants

were not acting singly, each coptrolling his own conduct; but they had joined together in order to destroy The judgment appealed from is affirmed, plaintif's business. That business was one at appellant's cost. which did not enter into competition with that of any of the defendants, but was entirely dis

ST. PAUL, J., concurs in the decree. tinct from it."

Rehearing refused by Division A, compos. The other libelous act charged against the ed of O'NIFLL, C. J., and ROGERS and defendants is the publication “Parasites and BRUNOT, JJ.

ness.

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(156 La.)

bers 3801 and 3803 Ulloa street. Coupled No. 24590.

with this demand is one for an accounting

for the fruits and revenues of the property FASSBENDER V. GHERGICH.

involved. (Supreme Court of Louisiana. May 5, 1924.) On June 16, 1919, defendant executed and

delivered to Ernest A. Carrere, a real es(Syllabus by Editorial Staff.)

tate agent of New Orleans, the following in. 1. Brokers 94—Power held to authorize strument, to wit: broker's acceptance for principal of offer to purchase.

"I hereby authorize you, your successors, or Power of attorney to realty agent held to

your heirs, to sell for me property No. 3801expressly authorize him to accept, on behalf lot 32 feet by 111.8 feet, more or less, descrip

03 Ulloa street, corner Cortez street, size of of principal, offer to purchase made in con

tion of improvements

rented for formity with terms specified.

$ per month, same to be sold for not 2. Brokers 94-That offer to purchase less than $3,750) thirty-seven hundred and

made subject to lease held not to affect ven- fifty 00/100 dollars. dor's liability after acceptance.

“Terms and conditions: Cash purchaser to The mere fact that offer to purchase prop

assume 1919 taxes, erty was made subject to existing lease held "I agree to give you sole control for six not to affect vendor's liability to convey after months and I further agree not to interfere in acceptance by authorized agent.

the sale of the property during the term of this 3, Brokers On94-Stipulation as

contract and further agree to refer all ap

to notary plicants for the sale of this property to the public before whom sale to be passed held said Ernest A. Carrere. not to affect vendor's liability to convey.

"At the expiration of six months I will notiStipulation by vendor's agent, accepting of-| fy you in writing, whether or not I desire this fer to purchase property, that act conveying contract to continue, and my failure to do so. same should be passed before "owner's notary shall operate as a renewal of this contract for public," whereas nothing was specified in con a term of six months more. It is further unditions imposed by vendor as to what officer derstood and agreed that there are to be no sale should be passed before, held not to af- charges if above described property is not fect vendor's liability to convey.

sold. 4. Vendor and purchaser Om 44-Sales; fraud

"If sold I agree to pay you a commission of of broker releasing agency and subsequently

3 per cent. If sold by you or any one else purchasing property held not shown.

I still agree to pay you a commission of 3 The fact that purchasers of property from per cent. It is distinctly understood that your a broker authorized by defendant to sell it had purchase price is put up, and that your com

labor ceases when the deposit on account of previously represented defendant, and that he had declined to sell to them for fear of lia- mission is earned whether the title to said

property is accepted or rejected by the purbility of double commissions and that such pur- chaser. chasers released their agency before making the purchase, held not to indicate fraud or ill cent of the purchase price on account of sale,

“I further authorize you to accept 10 per practice.

which is not to be considered earnest money; 5. Specifia performance 127 (1)-One en and is to be deposited in the City Bank &

forcing specific performance entitled to ac- Trust Company of this city to the credit of counting for fruits and revenues received by Ernest A. Carrere and to remain there until defendant.

the sale of the property is completed. One suing for specific performance of con

"In case of suit to recover any part of the tract to sell realty is entitled to accounting commission or any other amount that may be for fruits and revenues.

due, 25 per cent. will be added for attorney's

fees.” Appeal from Civil District Court, Parish of On the same day that the foregoing in. Orleans; Hugh O. Cage, Judge.

strument was executed, Poer & Seixas, Suit by John P. Fassbender against Mat- agents, made a written offer, on behalf of thew Ghergich. Decree for plaintiff

, and plaintiff, to purchase the property for $3,750 defendant appeals. Annulled in part, and cash, to assume the taxes for the year 1919, affirmed in part.

and to take the property subject to an ex

isting lease, to deposit 10 per cent. of the L. H. Gosserand, of Gretna, and David purchase price, in the event of the acceptSessler, of New Orleans, for appellant.

ance of the offer, and, in the event of failMartin H. Manion and Herbert W. Kaiser, ure to comply with the offer, if accepted, to both of New Orleans, for appellee.

pay 25 per cent. attorney's fees, and 3 per

cent. commission on the amount offered, and OVERTON, J. This is a suit demanding all costs incurred, the act of sale to be specific performance of an alleged promise of passed before

—, notary public, at the sale. The property involved consists of cer- expense of the purchaser, tain improved real estate, situated in the city The offer was accepted by Ernest A. Carof New Orleans, and bearing municipal num rere, and on the same day Poer & Seixas

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(100 So.) paid to the firm of Ernest A. Carrere's Sons, ceipt given for the 10 per cent. of the puras agents-of which firm Carrere was a chase price paid, it is stipulated as one of member-$375, to be credited on the price to the conditions of sale that the act conveybe paid for the property, this sum being the ing the property shall be passed before the 10 per cent, of the price referred to in the “owner's notary public,” whereas, there is mandate given by plaintiff to Carrere. The nothing in the conditions specified by him as firm issued its receipt for the amount.

to what officer the sale should be passed beDefendant refused to complete the sale fore, if made. by executing a deed to the property, where [2, 3] We infer from the record that the upon plaintiff brought this suit. Defendant property, or a part thereof, was subject to filed an exception of no cause of action which a lease. As it was so subject, defendant has was overruled. He then filed his answer. no cause to complain that his agent accepted The case was tried, and judgment was ren an offer to purchase it subject to the lease dered in favor of plaintiff, requiring defend-existing thereon. With respect to the conant to convey said property to plaintiff by dition inserted by defendant's agent in the clear and unincumbered title, and directing receipt for the amount paid on account of plaintiff to pay to defendant, at the time of purchase price, that the sale should be the execution of the deed, $3,750, the price passed before the "owner's notary public,” agreed to be paid for the property, less the this was a mere detail, which, by necessary $375 already deposited on account of that implication, the agent of the owner was auprice, and condemning defendant to pay thorized to arrange in accepting the offer. plaintiff $40 a month, as the revenues of said Moreover, the stipulation could not have posproperty from July 1, 1919, until he complies sibly injured defendant, for the notary selectwith the judgment rendered.

ed was his own.

[4] Defendant also contends that specific Opinion

performance should not be required of him,

because Poer & Seixas also represented him, 11] The power of attorney, granted by and because the offer and its acceptance are defendant to Carrere, in our view, was suffi- characterized by fraud and ill practice. cient to authorize him to offer the property

Shortly before the offer was made to Carin controversy for sale and to accept an

rere, Poer & Seixas represented defendant. offer to purchase it, and thereby bind defend. At the time they represented him, plaintife ant to convey the property to the one mak- offered them, as the agents of defendant, ing the offer. The expressions, found in the $3,800 for the property, $50 more than the instrument, reading: "I hereby authorize

price offered Carrere. The offer was comyou, your successors, or your heirs to sell municated to defendant, but he did not acfor me (the) property No. 3801-03 Ulloa cept it, assigning as the reason for not acstreet," and "I further authorize you to accepting, that he had the property listed also cept 10 per cent. of the purchase price on

with Carrere's firm, and was afraid that if account of [the] sale, which amount is not he did accept he would have two comunisto be considered earnest money”—clearly and sions to pay. It was because of this reason necessarily include the power to accept an

that Poer & Seixas, as we appreciate the offer made agreeably to the terms and con- evidence, surrendered the agency. Later, ditions specified in the power of attorney. when Poer & Seixas no longer represented deAs the power to accept the offer made is fendant, they made for plaintiff the offer in necessarily included in the express powers

of

question. granted, we unhesitatingly hold that Carrere The record does not disclose why there was had the power to accept an offer, made as

a difference between the first and the second aforesaid, and thereby bind defendant to con

offer. It does, however, disclose that devey the property.

fendant, with knowledge of the fact that he Defendant, however, contends that the of- had been offered, only two weeks before, fer made by plaintiff through Poer & Seixas $3,800 for the property, authorized Carrere and accepted by Carrere is not in accord to effect a sale for $3,750, thus showing that with all the terms and conditions of sale, he was later willing to sell for the latter specified in the power of attorney, and, hence, amount. There must have been a legitimate that he is not bound by Carrere's action, and, therefore, cannot be required to convey title: reason, therefore, for the difference between As the basis for the position here taken, he would not be justified in drawing the con

the two offers. Under the circumstances, we points out that the offer to purchase is made

clusion that the offer and its acceptance were "subject to existing lease"—that is to say, that plaintiff

, in making his offer through characterized by fraud or ill practice. Poer & Seixas, offered to take the property

Our conclusion is that defendant should subject to the lease existing thereon, when, execute the deed demanded. as a matter of fact, nothing is said in the

[5] Plaintiff, as we have seen, has also terms and conditions specified by him rela- sued for an accounting for fruits and revetive to the sale of the property subject to a

He is entitled to such an accounting, lease—and he also points out that, in the re- but there is nothing in the record upon which

nues.

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