In True v. Southern R. Co., 159 S.C. 454, 157 S.E. 618, cited by appellant, the court held that the evidence did not show that the defendant went beyond the legitimate scope of the investigation or committed any act from which malicious intent could be inferred.Summary of this case from Fulton v. Atlantic Coast Line R. Co.
March 17, 1931.
Before SHIPP, J., Richland, October, 1929. Affirmed.
Action by T.W. True against Southern Railway Co. et al. From order of nonsuit plaintiff appeals.
Ruling of Judge in passing upon the motion of nonsuit, requested to be reported, follows:
The Court: Mr. Robinson, I understand now that you — I know it has been put in evidence, but did you offer in evidence the agreement between the Railway Conductors and the Southern Railway?
Mr. Robinson: I offered in evidence that rule thing. I don't call it an agreement — the rule which they plead in the answer.
The Court: I mean the agreement or rule or whatever it is about them giving notice that they would have a trial? Did you introduce that in evidence?
Mr. Robinson: The rule says they will give me a hearing before they discharge him.
The Court: I want to know whether you put it in evidence?
Mr. Robinson: Yes, sir; I put it in. They called for it in their notice and they plead it in their answer.
The Court: Well, now, here's the question, I want to ask you. Have you any case in which — now the publication in this case complained of — the only publication in evidence is the publication made to the Board of Inquiry. Now, that is the publication that you are complaining of, is the publication made to the Board of Inquiry. As I understand this testimony and I have not heard any testimony of any publication, because these affidavits were never published. They were sent from the agents that collected them under the direction of the authorities to the authorities themselves. Now, under all the law and all the decisions that is privileged. They have this investigation and they have a right to do that. Now, the gist of this action is malice in the publication. Now, here is a case in which by agreement, they have agreed that this Board of Inquiry should be called and that he cannot be discharged until the matters they have against him are presented to the Board of Inquiry. That has been agreed on in the rules. Here is a case in which the publication is made for his benefit, in order to give him an opportunity to answer the charges. Now, have you got any case where the parties have agreed now that the publication shall be made under those circumstances?
Mr. Robinson: No, sir; I have no such authority as that, and I have no such agreement as that.
The Court: Well, you introduced it.
Mr. Robinson: This is how the rule reads: "Conductors, flagmen, baggagemen, brakemen, yardmen and switchtenders will not be discharged or demerited without an investigation, which will be made by proper officers within five days, if possible, and in their presence."
That is the rule. Now, who are the proper officers for instance? The testimony is now that Mr. Cooper was to act, if Mr. Stanfiel didn't, but both were here. Now, here is an investigation of matters six years old. Can it be said that this falls within this agreement?
The Court: There is nothing said in the complaint, Mr. Robinson, about his agreement, at all?
Mr. Robinson: Not a word, sir.
The Court: The complaint alleges a conspiracy and then alleges that they had a trial. It doesn't say that it was done in accordance with the rules of the company at all. My idea about it is this. I have been governed entirely by the Switzer case, which is the law of this State, no doubt, but however, the investigation in that case was entirely ex parte and the publication was made to a person unauthorized to hear it.
Now, here's a case in which under the rules that you have introduced, which is not in your complaint. Under the rules that you have introduced here, the publication of which you complain is made not to unauthorized persons, but to persons that constituted the Board of Inquiry.
Mr. Robinson: Upon what does your Honor base that statement, that they are the people authorized to hear it? All of those men who sat there — what evidence is there — what evidence is there of that now, if your Honor please?
The Court: Well, there is no complaint in your complaint. You have introduced these rules and I assume the Court was made in accordance with the rules there, which you have introduced.
Mr. Robinson: The rules did not say who was to compose it and I do charge here as to who did compose it.
The Court: You didn't say anything in the complaint about the rule at all?
Mr. Robinson: Not a thing.
Mr. Tompkins: Never made any complaint at the hearing. True testified that he made no complaint against any man in the hearing.
The Court: My understanding of the law is that the publication upon which you can complain would be against somebody that is not authorized to hear it. Here is a case in which the investigation was made. If it had not been for this rule, the railroad company could discharge a man without giving him any reason in the world, wouldn't have to say a word, except discharge him and wouldn't publish it, but now, here is a rule made for the benefit of the railroad employees — the conductors. It is made for their benefit. They are allowed to have counsel; they are allowed to appeal the case from that decision and it is made to people, a court that is provided for in the rule and it seems to me it would be — if they provided now that they may have an investigation, but this says they shall not be discharged without an investigation and every time they have an investigation they must subject themselves to a suit. I don't think that is the intent of the agreement. I have thought about that very seriously during the night and I have had that case before me and there is a great difference between the two cases. In the Switzer case it is entirely ex parte. In this case publication was made by the rule or agreement or whatever you call it, on notice and there is no objection made and no publication except to the persons in the Board of Inquiry and I can't see how you can predicate a suit upon a proposition of that sort, therefore, after considering the matter, outside of any testimony on behalf of the defendants, I will grant the nonsuit.
Mr. Robinson: But the record, I will assume, will include everything that is given up to this time?
The Court: Yes, sir.
Messrs. D.W. Robinson and D.W. Robinson, Jr., for appellant, cite: Presumption in favor of plaintiff on motion for nonsuit or directed verdict: 153 S.C. 439; 151 S.E., 81; 151 S.C. 14; 148 S.E., 633; 151 S.C. 135; 148 S.E., 701; 151 S.C. 211; 148 S.E., 889. "Slander": Newell, Slander and Libel, 4th Ed., 3, 62; 17 R.C.L., 263-4. "Libel": Newell, 4th Ed., 1, 8-9, 130; 99 S.C. 438; 88 S.E., 1088; 71 S.C. 116; 50 S.E., 637; 27 L.R.A. (N.S.), 1038; 17 R.C.L., 265-6. Liability for procuring false affidavits: 149 S.C. 328; 147 S.E., 333. Meaning of language for jury: 150 S.E., 473; 148 S.E., 478; 130 S.C. 183; 125 S.E., 913; 145 S.C. 206; 143 S.E., 31; 76 S.C. 510; 57 S.E., 478; 93 S.C. 475; 77 S.E., 51; Newell, 4th Ed., 286, 294, 736-7; 96 S.C. 299; 80 S.E., 465; 231 U.S. 594; 155 S.C. 63; 152 S.E., 18. Publication to be considered as a whole: 12 R.C.L., 313; 28 L.R.A., 676; 116 A. S.R., 807; 138 S.C. 252; 136 S.E., 21; 250 U.S. 393; 2 Bailey, 579. Court and jury not confined to literal interpretation of language: 3 A.L.R., 1589; 17 R.C.L., 312-14; 28 L.R.A., 676; 94 Am. Dec., 457; 35 Am. Dec., 179. Purposes of innuendo: 129 S.C. 251; 124 S.E., 7; 76 S.C. 510; 57 S.E., 478; 116 S.C. 82; 106 S.E., 865; Newell, 4th Ed., 588-9; 17 R.C.L., 395-6. Surrounding circumstances may be shown: Newell, 4th Ed., 736-7; 17 R.C. L., 313-14; 50 S.E., 80. Words to be given ordinary meaning: 53 A.L.R., 626; 37 A.L.R., 880; 40 A.L.R., 576; 5 A.L.R., 1352. Justification must be as broad as charge: Newell, 4th Ed., 756; 145 S.C. 219; 143 S.E., 31; 31 L.R.A. (N.S.), 140. Absolute privilege: Newell, 4th Ed., 387-414. Every contract made with reference to law of state: 112 S.C. 547; 100 S.E., 170; 149 S.C. 412; 147 S.E., 444; 119 S.E., 474; 65 S.E., 539; 106 S.C. 471; 91 S.E., 733; 113 S.C. 24; 100 S.E., 893; 145 S.E., 788. Qualified privilege: 145 S.C. 69; 142 S.E., 828; Newell, 4th Ed., 380; 119 S.C. 241; 112 S.E., 110; 17 R.C.L., 341; 26 A.L.R., 843. "Malice": 99 S.C. 440; 83 S.E., 1088; Newell, 4th Ed., 310-16; 145 S.C. 218; 143 S.E., 31. Malice destroys privilege: 145 S.C. 71; 142 S.E., 834; 119 S.C. 242; 112 S.E., 111; 3 Hill, 88; Newell, 4th Ed., 382; 30 L.R.A. (N.S.), 204; 24 L.R.A., 594. Proof of malice: Newell, 315-16, 738-816; 145 S.C. 70; 142 S.E., 828; 141 S.E., 476; 119 S.C. 244; 112 S.E., 110; 3 L.R.A., 699; 3 Hill, 88; 2 McC., 288; 118 N.W., 35. Malice in fact: Newell, 315-16; 12 A.L.R., 1017; 119 S.C. 242; 12 L.R.A. (N.S.), 93. Communication must not exceed privilege: 145 S.C. 70; 142 S.E., 914; 36 C.J., 1248; 26 A.L.R., 848. Failure to make reasonable inquiry or lack of reasonable grounds proper inquiries on question of malice: 50 A.L.R., 338; 5 A.L.R., 1687. Other statements of like nature evidence of malice: 12 A.L.R., 126; 17 R.C.L., 434; 95 S.C. 93; 78 S.E., 536; 97 S.C. 241; 81 S.E., 633; 2 Rich. Law, 585; Newell, 4th Ed., 848; 150 S.C. 474; 148 S.E., 478. Qualified privilege for the jury: 145 S.C. 71; 142 S.E., 828; 145 S.C. 275; 143 S.E., 31; 119 S.C. 242; 112 S.E., 110; Newell, 4th Ed., 315-16, 342-6; 24 L.R.A. (N.S.), 592; 99 S.C. 458; 83 S.E., 1088. Publication: Newell, 4th Ed., 220; 150 S.C. 475; 148 S.E., 478; 119 S.C. 245; 112 S.E., 110; 127 S.E., 714. General damages presumed: 145 S.C. 75; 142 S.E., 836; 150 S.C. 475; 148 S.E., 478; 145 S.C. 222, 278; 143 S.C. 31; Newell 4th Ed., 810.
Messrs. Frank G. Tompkins and Frank B. Gary, Jr., for respondent, cite: Nonsuit proper where no dispute as to truth of defense: 119 S.C. 243; 104 S.C. 200. Occasion privileged and no malice shown: 143 S.E., 61; 140 N.C. 106; 17 R.C.L., 341. Express malice must be shown where there is qualified privilege: Newell, 4th Ed., 477; 4 L.R.A., 280; 44 U.S. 266; 11 L.R.A., 754; 16 N.Y., 369; 178 N.C. 580; Ann. Cas., 1917-D, 249; 127 S.E., 710; 104 S.C. 200; 20 O.R.A., 440; 167 Pac., 1118; 207 Fed., 222; L.R.A., 1918-E, 536.
March 17, 1931. The opinion of the Court was delivered by
This is an appeal from an order of nonsuit by his Honor Judge Shipp. The action was for damages on account of alleged false malicious and libelous statements contained in certain certificates and affidavits claimed to have been circulated and published concerning the plaintiff, which he alleged charged him with dishonesty and stealing, in his position as conductor, resulting in damage to his reputation and in his discharge.
It appears that on November 9, 1925, A.H. Plant, assistant to the vice president of the defendant company, wrote to the plaintiff a letter marked "personal," received by the plaintiff on December 4, 1925, as follows:
"As you are aware, checks are being made by the company of transportation revenue returns — both tickets and cash fares — made by its conductors.
"Investigation recently made shows an apparent irregularity in your cash fare returns as follows:
"Train No. 23, October 27, 1925. Charlotte to Columbia: It is reported that passengers rode the above train between the points shown below, paid cash fares and did not receive receipts:
"Griffith to Pineville; Griffith to Rock Hill; Carhartt to Rock Hill; Chester to Blackstock; Winnsboro to State Park.
"No such fares appear on your cash fare reports for that train and date.
"The record indicates that prior to the investigation referred to in October, three similar irregularities were found in your transportation returns.
"These checks now being made will be continued and if the apparent irregularities do not cease, the entire record must be submitted to the proper officer of the operating department for such action as may be justified, which action will be based upon the entire record.
"The general chairman of the Order of Railway Conductors has been advised that this caution would be given and has requested that he be furnished a copy of it which is agreeable to us, if you do not object. Unless we hear from you to the contrary, within fifteen (15) days from this date, it will be assumed that there is no objection on your part, and we will furnish a copy hereof to such general chairman."
To this letter the plaintiff made no reply, and a copy of it was sent to the chairman of the Order of Railway Conductors to which the plaintiff belonged.
On July 13, 1928, W.F. Cooper, superintendent of the company, wrote a letter to the plaintiff as follows:
"Investigation having developed what appear to be irregularities in the handling of transportation on trains entrusted to your charge, you are hereby notified to attend an investigation to be conducted by Mr. J.H. Stanfiel, assistant to vice-president, at my office on Monday, July 16, 1928, commencing at 9:00 a. m. The irregularities in question occurred on the following trains and dates: (Here followed a list of the `irregularities,' with the dates and train numbers when and on which they were supposed to have occurred, closing with this statement): If it is your desire to have a representative with you at the investigation in question we shall be glad if you will arrange for such person as you desire to represent you to be with you at the place, on the date and at the hour mentioned above."
In compliance with this notice the plaintiff appeared at the office of the superintendent of the railway in Columbia S.C. on July 16, 1928. There were present at the hearing: J.H. Stanfiel, assistant to vice-president; A.H. Plant, assistant to vice-president; W.F. Cooper, superintendent; J. W. Connelly, chief of police; L.F. DeRamus, general superintendent; Luther Gordon, chief of police; J.F. Trazzare, special agent. At that meeting, Mr. Moore, general chairman of the Order of Railway Conductors, represented Conductor True. Mr. Moore, during the investigation, asked questions on behalf of the plaintiff.
The investigation was called in response to the obligation of the company under its agreement with the Order of Railway Conductors which provided:
"Conductors, flagmen, baggagemen, brakemen, yardmen and switchtenders will not be discharged or demerited without an investigation, which will be made by proper officer within five days, if possible, and in their presence. They will have the privilege of bringing to the investigation to assist them a conductor, flagman, baggageman, brakeman, yardman or switchtender, as the case may be, of their own selection, provided such person is employed and is in good standing on the division. If found blameless, they will be paid for the time lost. If discharged, they will be furnished with a letter showing cause of dismissal, term of service and capacity in which employed. If demerited, they will be furnished with a written notice of same."
If the company had discharged the plaintiff without complying with this provision, it would have subjected itself to a suit for damages.
The investigation then proceeded in an orderly fashion; no objection was interposed by the plaintiff upon any ground; he was present represented by the chairman of his order, who was given full opportunity of examination and cross-examination; he made no request for time and expressed his ability to meet all charges of which he was fully informed. They were specifically stated and thoroughly threshed out by statements supported by reports and affidavits and every opportunity given the plaintiff to answer them.
It will be observed that the basis of the plaintiff's claim to libel and slander was the matter brought out in the investigation, instituted in his interest and according to the provisions of the agreement with his order.
The ruling of his Honor, Judge Shipp, in passing upon the motion for nonsuit is clear and comprehensive; it meets with the approval of this Court and will be reported.
That the communications during the investigation were privileged appears beyond controversy. Switzer v. Exp. Co., 119 S.C. 237, 112 S.E., 110, 26 A.L.R., 819, 25 Cyc., 393, Note 46, L.R.A. (N.S.), 104; Billings v. Fairbanks, 136 Mass. 177; Palmer v. Hammerston, Cab. El., 36; Laughlin v. Schnitzer (Tex.Civ.App.), 106 S.W. 908; Warr v. Jolly, 6 Car. P., 497; Haynes v. Leland, 29 Me., 233; Patterson v. Frazer (Tex.Civ.App.), 79 S.W. 1077; Louisville Times Co. v. Lancaster, 142 Ky., 122, 133 S.W. 1155; Beeler v. Jackson, 64 Md., 589, 2 A., 916; Middleby v. Effler (C.C.A.), 118 F., 261; Christopher v. Akin, 214 Mass. 332, 101 N.E., 971, 46 L.R.A. (N.S.), 104; Chalkley v. R. Co., 150 Va., 301, 143 S.E., 631; Polk v. R. Co., 156 Ark. 84, 245 S.W., 186, 29 A.L.R., 220; Gattis v. Kilgo, 140 N.C. 106, 52 S.E., 249: Newell on Libel and Slander, 477; Missouri Pac. R. Co. v. Richmond, 73 Tex., 568, 11 S.W. 555, 4 L.R.A., 280, 15 Am. St. Rep., 794; White v. Nicholls, 3 How., 266, 11 L.Ed., 591; Moore v. Manufacturers' Nat. Bank, 123 N.Y., 420, 25 N.E., 1048, 11 L.R.A., 754; Lewis v. Chapman, 16 N.Y., 369; Lewis v. Carr, 178 N.C. 578, 101 S.E., 97; Adam v. Ward (Eng.), Ann. Cas., 1917-D, 249; Elmore v. R. Co., 189 N.C. 658, 127 S.E., 710; Caulfield v. R. Co., 170 La., 155, 127 So., 585; Chesapeake Ferry Co. v. Hudgins (Va.), 156 S.E., 429.
Furthermore, it does not appear that the defendant in its investigation went beyond the legitimate scope of the enquiry or committed any act therein from which a malicious intent could be inferred. See Chesapeake Ferry Co. v. Hudgins, supra; Fitchette v. Sumter Hardwood Co., 145 S.C. 53, 142 S.E., 828.
The judgment of this Court is that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and CARTER concur.