Olinger v. American Savings and Loan Ass'n, 409 F.2d 142 (D.C. Cir. 1969)

PER CURIAM:

This action was brought to recover damages stemming from an alleged libel, invasion of privacy, and malicious interference with peace of mind. The District Court granted appellee’s motion for summary judgment. We remand solely on the libel theory.

The facts, viewed in the light most favorable to appellant, are as follows. Appellant, a career Air Force officer, was divorced from his wife in January 1966. By the terms of the decree, he was ordered to make support and alimony payments totaling $550 per month. A deed of trust, held by appellee, on the couple’s former house in Maryland obligated both appellant and his former

wife. Subsequent to the divorce, however, the couple agreed orally that Mrs. Olinger would continue to live in the house and would keep up the payments on it.

After remarrying, appellant was transferred to Germany. Although he regularly made his support and alimony payments, the deed of trust payments fell into arrears. After several telephone conversations with the former Mrs. Olinger, appellee instructed the trustees to foreclose on the property. They so informed both appellant and his former wife and initiated the necessary legal proceedings. Upon receiving notification of the impending foreclosure, appellant, through his attorney, informed appellee that he would be willing to effectuate a friendly sale of the property. In subsequent conversations with appellant’s attorney, appellee’s representative (Lowery) accused appellant of leaving the country without providing for his family and of having adulterous relationships. He also stated his intention, based on the advice of a retired Air Force Colonel, to write a letter concerning these matters to appellant’s commanding officer, though he conceded that the value of the property exceeded the balance due on the loan. Despite the attorney’s objections, Lowery did write such a letter, the substance of which forms the basis of this action. It stated:

Copies of the letter apparently were sent to an Air Force Personnel Office in Texas and to appellant’s loan insurer in Wisconsin.

Appellant was called before his superior officers in Germany to account for the charges contained in the letter. The embarrassment and humiliation of this experience and of other comments and discussion regarding the letter allegedly aggravated appellant’s pre-existing nervous condition, resulting in his hospitalization.

Although summary judgment was properly granted as to appellant’s invasion of privacy and malicious interference theories, we conclude that the facts, viewed in this light, would support a verdict in appellant’s favor on the libel theory.

In this jurisdiction, a publication is considered defamatory “if it tends to injure plaintiff in his trade, profession or community standing, or lower him in the estimation of the community.”1 Appellee, while not here contesting the defamatory nature of the publication, has taken great pains to demonstrate the truth of each and every statement in the letter. Truth, of course, is a complete defense to a charge of libel.2 It is clear, however, that at least one of the statements in the letter wes “true” only because it was prefaced by “Mrs. Olinger reports that Appellant has asserted that he was willing to effectuate a friendly sale of the house and, indeed, that Lowery had been made aware of this intention. He further asserts that he and his former wife had reached an agreement whereby she was to keep up the payments on the house. Nonetheless Lowery’s letter included the following recital: “Mrs. Olinger reports that Col. Olinger is unwilling to permit her to sell the property and he will not keep the payments current on the first and second trust.”

The law affords no protection to those who couch their libel in the form of reports or repetition. In the first place repetition of a defamatory statement is a publication in itself, regardless whether the repeater names the source.3 As a corollary, and more germane to the instant case, the repeater cannot defend on the ground of truth simply by proving that the source named did, in fact, utter the statement.4 To quote the Restatement of Torts:

The statement in question contains two charges: (1) that appellant was unwilling to permit his former wife to sell the house, and (2) that he was not keeping the payments current on the first and second trusts. It is apparent that both charges are at least capable of defamatory meaning. It is for the jury to determine whether the statement was so understood by the recipients of the letter6 and whether the charges it contains are, in fact, true.7 Since these are genuine issues of material fact,8 we remand for further proceedings not inconsistent with this opinion.

So ordered.