Summary
In Gardner v. Standard Oil Co., 179 Miss. 176, 175 So. 203, 205, the manager of the plant made statements to other employees to the effect that a company truck driver had stolen gasoline.
Summary of this case from Combes v. Montgomery Ward Co.Opinion
No. 32241.
June 14, 1937. Suggestion of Eerror Overruled July 19, 1937.
1. ABATEMENT AND REVIVAL.
In action in state court, plea of pending suit removed to federal court was properly overruled, where order of nonsuit had been entered in federal court providing that plaintiff first pay costs both in state and federal courts, action in state court was subsequently filed, and plaintiff paid all costs in both courts on day state court heard and considered plea of pending suit, since order of nonsuit deprived federal court of any further jurisdiction of subject-matter or cause of action and payment of all court costs completely answered plea of pending suit.
2. COURTS.
A state court may take jurisdiction of a case nonsuited in federal court, since case is at large on dismissal by federal court.
3. LIBEL AND SLANDER.
The statements of oil company plant manager to effect that company's truck driver had stolen gasoline, made to other employees of oil company, were quasi-privileged as statements uttered by manager, while engaged in his own and company's business as manager, to protect company's property, for which manager was accountable to company.
4. LIBEL AND SLANDER.
In slander action, presumption of good faith arises as to privileged statements, and burden of showing malice or bad faith is cast on plaintiff.
5. LIBEL AND SLANDER.
In slander action based on qualifiedly privileged statements of oil company plant manager to effect that company's truck driver stole gasoline, evidence that manager made many repetitions of such statements and required driver to work unreasonably long hours, as compared to other employees, and invited him to quit if he did not like the work, and that manager repeated statements to one not yet an employee of company was competent to show malice of manager and his corporate principal.
6. LIBEL AND SLANDER.
Statements of oil company plant manager to one not yet a company employee, to effect that company's truck driver stole gasoline, were not privileged.
7. CORPORATIONS.
A corporation may speak by and through agents acting in course of their employment and in performance of their duties, and thereby become liable for slander.
8. LIBEL AND SLANDER.
Whether qualifiedly privileged statements of oil company plant manager as to stealing of gasoline by company's truck driver were made with malice and in bad faith, so as to authorize recovery against manager and oil company therefor, held for jury.
APPEAL from the circuit court of Lee county. HON. THOS. H. JOHNSTON, Judge.
C.P. S.H. Long and C.B. Hutchison, all of Tupelo, for appellant.
As a general rule, defamatory publications by defendant against plaintiff other than those sued on may be admitted in evidence to show malice on the part of defendant, and this, whether such publications were made prior, or subsequent, to the defamatory words complained of, whether the words tendered in evidence are themselves actionable or not, or whether they are addressed to the same party as the words sued on or to some one else. And not only are such other words admissible in evidence, but also circumstances attending their publication, the mode and extent of their repetition, etc.
37 C.J. 79, par. 488.
The question of the agency of Mattox at the time of the slander sued upon has been settled by other testimony and by that testimony which describes the circumstances under which the slander sued upon was uttered. Then the evidence in question which was excluded is competent only for the purpose of showing whether or not Mattox on the original occasion was actuated by malice in making the utterances sued upon and the reason for the rule is just as strong to allow the evidence to be introduced whether the corporation ratified Mattox' future publications or did not, for the question is not whether they ratified it or whether he was an employee at the time, acting in the scope of his authority, but the question is whether or not he went about making future accusations uncalled for, which would show by the very fact that they were made, that he was actuated in the original instance by malice. It then, therefore, becomes immaterial whether or not the corporation should ratify it or not for for us to recover in this case the corporation does not have to be actuated by any malice on the occasion of the original utterance but only Mattox and Mattox's malice would be imputed to the corporation by his employment and by reason of the circumstances under which he uttered the original slander.
In Mississippi we have no doctrines of ratification by the principal. The principal is liable for the negligence of its agents without ratification.
Doherty v. L.B. Price Mercantile Co., 132 Miss. 39, 95 So. 790; Louisiana Oil Corp. v. Renno, 157 So. 705, 173 Miss. 609.
Conceding that the slander in two counts to Lude Davis and Bob Ashe was on a quasi-privileged occasion, we say that the proof of actual malice sworn to by Gardner, uncontradicted as it stands, entitles us to go to the jury on question of malice.
37 C.J. 78, par. 482; Kennedy v. Gurley, 208 Ala. 623, 95 So. 34, 26 A.L.R. 817; Peterson v. Cleaver, 15 A.L.R. 447.
The law is well settled also that proof of repetition of the same or kindred slanders is evidence of malice, and when we proved not one or two but many repetitions by Mattox, both before and after the ones sued on, both to employees and several to one man when he was not an employee and even after Gardner was no longer an employee, we were most certainly entitled to go to the jury on the question that such repetitions showed malice.
37 C.J., page 78, par. 483, page 79, par. 488, and page 80, par. 489; 12 A.L.R. 1026; Lehner v. Berlin Publishing Co., 246 N.W. 579, 86 A.L.R. 1284.
The plea of justification filed by Mattox is unambiguous and virile in its phraseology. It definitely brands the appellant as a thief, and says that the charge is made after careful investigation and on positive proof. In fact, it states that Mattox caught Gardner red handed in the act of stealing. The proof fails to sustain this plea in the slightest degree. On the other hand, all the incidents referred to on cross-examination tend to disprove that Gardner stole anything. They reveal a nasty, unfounded suspicion and spying but no facts to base the plea on. In fact, as the proof now stands, it is a deliberate, unsupported redeclaration of the slander, in more aggravated language than the original made after thought on the subject, and unless proven by defendant's testimony to be true, will impute malice to Mattox on the original slander and any malice of Mattox's at that time is the Standard Oil Company's malice.
N.O.G.N.R. Co. v. Frazer, 158 Miss. 422; Louisiana Oil Corp. v. Renno, 157 So. 705.
A plea of justification unsupported by any evidence would be all the more proof of malice.
14 A.L.R. 109; Scott v. Peebles, 2 S. M. 546; Dauphiny v. Buhne, 126 A.S.R. 136; 91 A.S.R. 302-306, notes H and I; 17 R.C.L. 326, par. 71.
The falsity of the slander alone on quasi-privileged occasions will not justify an imputation of malice but when joined with other circumstances showing malice it should be considered by the jury on the question.
37 C.J. 78, par. 481; 26 C.J. 850; Railway Co. v. Brooks, 69 Miss. 168.
All the investigations made by Mattox in the case at bar showed that his statements were unfounded but he continued to make them.
Hubbard v. Rutledge, 57 Miss. 7; Stevenson v. Morris, 50 A.L.R. 335, 228 Pa. 405, 136 A. 234.
Under our statute No. 668, Mississippi Code of 1930, the defendant is entitled to recover cost when non-suit is taken but this statute itself expressly states that "the law of cost shall not be interpreted as penal."
When the Federal Court made the order of non-suit and it was afterwards, at any time complied with before the trial of the present cause, the order was fully complied with. When the order of the Federal Court was made that court lost all jurisdiction of the cause except to enforce the payment of the court cost. There is nothing in the order reserving jurisdiction of the case even for this purpose.
The Federal Court is now and has been at all times since the making of this order of non-suit, without any jurisdiction to ever try the merits of that controversy.
When the cause was dismissed in that court the whole matter reverted back to such court as the plaintiff might thereafter seek redress in.
Section 595, Code of 1930; Daner v. Blackburn, 90 S.W. 237; 9 R.C.L., sec. 36.
The policy of the law is that the poor, as well as the rich, shall be entitled to remedy in due course of law and have right and justice administered, as provided in section 24 of the Constitution, without sale, denial or delay and it is not the policy and should not be the practice of the courts to deny its citizens the right of trial of cases on their merits on highly technical propositions of the kind sought to be set up in this case.
Meeks v. Meeks, 156 Miss. 638.
In support of the proposition that the plaintiff, Mattox, and all others working for the company, were servants of the company under the contract with Mattox, surrounded and bound up under the full control of the oil company as he was constituted them all servants of the company, we cite:
Gulf Refining Co. v. Nations, 145 Miss. 327; Texas Co. v. Mills, 156 So. 866; Texas Co. v. Jackson, 165 So. 546; Gulf Coast Motor Express Co. v. Diggs, 165 So. 292.
Blair Anderson, of Tupelo, and G. Garland Lyell, of Jackson, for appellees.
It is undisputed that the plaintiff was both hired, paid and fired solely by Mattox. The Standard Oil Company had nothing to do with plaintiff or with discharging him. His name was not carried on the payrolls of the company and he was employed and paid by Mattox alone, and Mattox was not reimbursed in any respect therefor.
The evidence of all the witnesses, Bob Ashe, Lude Davis, John Lee Long, shows affirmatively that Mattox expressed great regret that he had become suspicious of the plaintiff and that he was disappointed in the man. None of these witnesses testified that Mattox showed any venom or spleen or ill-will toward the plaintiff but that his feeling and expressions were of regret and surprise at his being forced to be disappointed in the character of the plaintiff.
There was no evidence whatever of any personal feeling or ill-will existing between either of those three witnesses and plaintiff. The feeling, one for the other, was friendly so far as this record shows, and the plaintiff called them as his own witnesses, and yet the evidence shows that all three of them had been watching the plaintiff with suspicion in their minds. That undisputed evidence of the plaintiff's friends and witnesses necessarily impressed the trial court in favor of defendants, as we feel sure it will this court, which has not the same opportunity to see and observe those witnesses upon the stand, that there was no evidence introduced by plaintiff to meet the burden of proof imposed upon him in this occasion of qualified privilege to overturn the presumption that the words used by Mattox were uttered in good faith and without malice. The learned trial judge said: "As to good faith as a matter of course as I understand the law, when a qualified privilege is shown, unless the plaintiff connects with that some actual malice on the part of the defendant, or some bad faith on his part, the defendant is not required to make any answer thereto. However, as a matter of course, if any evidence were adduced the burden would be upon the defendant to establish his good faith, but there is no evidence as the court sees it to indicate malice toward plaintiff in this particular case." Whereupon, the court properly sustained the motion of defendants for a directed verdict.
The general principles announced in the following cases rule the case at bar:
Great A. P. Co. v. Majure, 167 So. 637; Louisiana Oil Corp. v. Renno, 157 So. 705, 173 Miss. 609.
Mattox was not a general agent of the Standard Oil Company, but if an agent at all, was one with very limited powers. And so it is that any publication of the slanderous words after plaintiff was discharged by Mattox could not be introduced in evidence against the Standard Oil Company.
Moore Stave Co. v. Wells, 111 Miss. 796, 72 So. 228; Southern Express Co. v. Fitzner, 59 Miss. 581, 42 Am. Rep. 379.
The Renno and Majure cases are exhaustive and scholarly opinions of this court controlling slander suits where occasions are qualifiedly privileged and we merely cite those cases without quoting therefrom except to emphasize, in conclusion, that the plaintiff did not overcome the presumption of good faith and absence of malice, and that the occasion of privilege was not exceeded. The learned trial court saw and heard the witnesses testify, including the plaintiff, and has decided, and expressly decided, that the plaintiff had not met the burden imposed upon him by the rule announced in these two cases.
Argued orally by S.H. Long, for appellant, and by G. Garland Lyell, for appellee.
Appellant, Fletcher Gardner, sued appellees, the Standard Oil Company and C.P. Mattox, for slander, and upon a trial of the case the court below, at the conclusion of the evidence on his behalf, sustained a judgment for appellees, from which Gardner appeals here.
Originally, the declaration was in four counts, but the first and fourth count were abandoned on the trial, which proceeded on allegations that Mattox, agent and manager of the Standard Oil Company's bulk sales plant at Tupelo, stated to one Ashe, "I am letting Gardner go, the amount of gasoline he took exceeded the amount he charged himself with."
In another count it was charged that Mattox stated to Lude Davis, "I am going to have to let Gardner go. I have been missing some stuff."
These statements were alleged to have been uttered by Mattox falsely and with malice.
The appellees pleaded the general issue, stating that the communications were privileged, and Mattox separately pleaded that the statements or accusations were true.
Without detailing all the evidence, it suffices to say that appellant proved, by Ashe and Davis, the utterances by Mattox alleged in the declaration while in the course of his employment and in the performances of his duties as manager and agent of the Standard Oil Company Ashe and Davis testified that Mattox had several times, and on different occasions, uttered practically the same charges against Gardner before and after the time Mattox discharged Gardner who was employed by the Standard Oil Company as a tank wagon driver delivering oil and gas for appellees to Standard Oil Company's customers, and had been so employed for about eight years. The same statements were testified to by several other employees engaged in the service in and about the plant.
Appellant testified that he was employed at the bulk sales station by Mattox and had worked there under five managers, including the last, Mattox. That Mattox fired him and stated that his reason for so doing was that appellant had been stealing stuff from the Standard Oil Company. Appellant testified that he had, according to the usage and custom of the employees, obtained and charged himself with gasoline and oil, and likewise had paid therefor according to the custom in vogue at that plant, and he was corroborated in this statement. Appellant further testified that some months prior to his discharge Mattox told him that he (Mattox) was about $300 short with the company and that he wanted appellant to assist him in recouping this by withdrawing from the barrels, with a pump, small quantities of oil until the deficit was covered. Gardner, appellant, declined this proposition, and thereafter until his discharge Mattox required him to work excessive hours, and disregarded the NRA rules as to appellant, but observed the rules as to the other employees. When appellant complained of this supposed injustice, Mattox said to him, "If you can't work it just quit."
It is shown by the evidence that Mattox set a trap to catch Gardner stealing, by having a negro purchase ten gallons of gasoline from Gardner, paying him therefor, and watching to see if he would account for it. Several hours later he reported the sale and said he had forgotten it.
A negro handyman testified that Mattox had made these charges to him and told him to observe Gardner at the noon hour. That Gardner had him put gasoline in his (Gardner's) private car, but witness did not know whether the gasoline was charged or paid for or not.
Pettigrew, a witness for appellant, testified that, on one occasion some months before Gardner was discharged, Mattox said he was going to let Gardner go, that Gardner was taking stuff that did not belong to him. This witness was not then employed, but was told that he could ride with the driver and see if he could learn the business. Some weeks later he was employed. These accusations were repeated by Mattox several times.
On a cross-appeal by the appellees, it is urged that the court erred in not sustaining their plea of a pending suit. This plea is, in effect, that Gardner had sued appellees on this same cause of action prior to the bringing of the action in the case at bar. That case was removed to the federal court, where, on October 1st, there was entered an order of nonsuit, at the conclusion of which are these words, "provided said plaintiff first pay all of the costs of this case, both in the state court and in this court." On October 19, 1934, the present suit in the state court was filed. Gardner did not pay all the costs in both courts until the day the state court heard and considered this plea.
(1) On the cross-appeal, we think the order of non-suit entered by the federal court deprived that court of any further jurisdiction of the subject-matter or cause of action, and, at all events, the final compliance with the proviso by payment of all court costs completely answers the plea of pending suit.
The general rule is that a state court may take jurisdiction of a case nonsuited in the federal court. 9 R.C.L. p. 213, section 36. Upon dismissal by the federal court, a case is at large. Southern Ry. Co. v. Miller, 217 U.S. 209, 30 S.Ct. 450, 54 L.Ed. 732. We shall not here consider the cross-appeal as to incompetency of evidence, preferring to dispose of it in this main opinion.
(2) On the direct appeal, appellees argue that, by the terms of the written contract between Standard Oil Company and Mattox, the latter was independent and not the agent of the former. The contract in question is stronger for agency than any similar ones we have considered in recent years. Under this contract, the relation of principal and agent, or master and servant, existed between these parties as appellees here. Gulf Refining Co. v. Nations, 167 Miss. 315, 145 So. 327; Texas Co. v. Pete Mills, 171 Miss. 231, 156 So. 866; Gulf Coast Express Co. v. Diggs, 174 Miss. 650, 165 So. 292; and Texas Co. et al. v. Jackson, 174 Miss. 737, 165 So. 546.
(3) Appellant assigns as error the action of the court in excluding his evidence and directing judgment for appellees. The slanderous statements uttered by Mattox to the witnesses, Ashe and Davis, were quasi-privileged. These alleged defamatory statements were uttered by Mattox while engaged in his own and his principal's business as manager and the only person in Tupelo connected with that business and in charge thereof. They were uttered in an effort to protect the property of his principal and preserve it from theft or embezzlement, and he was accountable to his principal therefor. Relative thereto, he had an interest and a duty. Davis and Ashe were employees and likewise had a duty and an interest relative to the owner's property. Louisiana Oil Corporation v. Renno, 173 Miss. 609, 157 So. 705, and the authorities therein discussed.
These statements being privileged, then the presumption of good faith arises thereasto, and the burden of showing malice or bad faith is cast upon appellant. See Renno Case, supra, citing Newell on Slander and Libel (4 Ed.), sections 346, 394, and 402.
Appellant recognized that the burden was on him to show malice, and he showed many repetitions by Mattox of the slanderous statements. He showed that Mattox required him to work unreasonably long hours, as compared to his fellow servants, and invited him to quit if he did not like the work.
Mattox, in the course of his employment, repeated the slander to Pettigrew before the latter was employed, and when he was under no duty to appellees, nor had any interest in their property. This statement was made by the agent for the principal in the course of the agent's employment, but was not privileged, and was competent as testimony to show malice. See Louisiana Oil Corporation v. Renno, supra. The facts detailed in this paragraph were competent for the jury to consider as to whether they showed malice on the part of Mattox and his corporation principal. See Renno Case, supra; Kroger Grocery Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335, and also 37 C.J., p. 79, section 488. The last sentence of this section is not adopted by us, because, in our opinion, the authority cited does not support the text.
The corporation sued here could speak by and through its agents when acting in the course of their employment, and in the performance of their duties, and by this means corporations may be proceeded against for libel and slander. Doherty v. L.B. Price Mercantile Co., 132 Miss. 39, 95 So. 790.
We think there is nothing in the case of Great Atlantic Pacific Tea Co. v. Majure, 176 Miss. 356, 167 So. 637, at variance with these conclusions. There the slanderous language attributed to the agent was not spoken during the course of such agent's employment. Of course, that kind of statement does not bind the principal, and was not competent against such principal. It was the agent's utterance on his own account for which he could be held liable. On the contrary, that case cogently supports our conclusions in the case at bar.
As we perceive the issue, it was a question for the jury as to whether appellant had offered sufficient evidence to overturn the presumption as to the want or absence of malice and bad faith, the slanderous statements being qualifiedly privileged.
On cross-appeal, the case is affirmed, and on direct appeal is reversed and remanded for another trial.
Affirmed on cross-appeal and reversed and remanded on direct appeal.