National Cash Register Co. v. Salling

• Decision Date: 04 October 1909
• Docket Number: 1,652.
• Citation: 173 F. 22
• Parties: NATIONAL CASH REGISTER CO. v. SALLING. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

173 F. 22

NATIONAL CASH REGISTER CO. v. SALLING. ^[1]

No. 1,652.

United States Court of Appeals, Ninth Circuit.

October 4, 1909

Lawler Allen, Van Dyke & Jutten and Henry S. Van Dyke, for plaintiff in error.

Davis Kemp & Post and James P. Clark, for defendant in error.

In May 1904, the defendant in error entered into the employment of the plaintiff in error as a traveling salesman within the state of California, and continued in such employment until April 21, 1906. The plaintiff in error, a corporation of the state of Ohio, had its principal place of business in the city of Dayton, and F. L. Ditzler was general manager of all its American agencies for the sale of its goods, and N. F. Thomas was general manager, under his direction, of the business of said corporation in the state of California, and had general charge and control and direction of all such business in that state, including the authority to hire and discharge employes. On April 11, 1906, the defendant in error sent to the plaintiff in error at its home office in Dayton his resignation as an employe. On April 16th Ditzler, in his official capacity as manager, telegraphed to the defendant in error, accepting his resignation, to take effect April 21, 1906, and on the same day wrote him a friendly letter, acknowledging appreciation of his honesty and candor in stating his true reasons for resigning, and expressing 'best wishes' for his success in whatever line of work he might engage. On April 21, 1906, said contract of employment ended. About this time Thomas learned that the defendant in error was about to enter into the business of selling secondhand cash registers at Los Angeles. On April 26, 1906, he wrote the plaintiff in error as follows: 'Exercising our option as per our contract with you, I hereby cancel your contract with the National Cash Register Company, to take effect immediately. I have advised the sales department of my action. While you have been in our employ, and while accepting our salary, you have been devoting your time to other work, and in many other ways doing things that warrant me in the action taken herein. ' On or about May 2, 1906, the plaintiff in error issued, published, and distributed to its agents throughout the United States and Canada a circular letter containing the following: 'The company has been obliged to terminate the employment of Mr. C. Z. Salling for cause. We must absolutely forbid Mr. Salling from being received in any of our offices. ' On July 6, 1909, Thomas wrote to E. B. Wilson, who represented and acted for the plaintiff in error as its agent and had charge of its office and business in Los Angeles, subject to Thomas' control, direction, and supervision, a letter as follows: 'I am in receipt of a letter from Mr. Brizzolari, who says he has met Salling, and that Salling has been in conference with Hallar. Salling says he is going into the secondhand cash register and rental business, etc. While neither you nor I have any faith in Salling's ability to get into a business of this kind, it is still our duty to be on the lookout for anything that may injure the company's business. I would therefore ask you to keep this on you mind, and, should you get an opportunity, see Mr. Hallar, telling him this much, at least-- that Salling is a man who has been discharged from our employe, and one whom we would not give a position to under any circumstances. I want to say one other thing. I wish you would, upon receipt of this letter, bring it to the attention of Mr. Alexander and Mr. Holmes. I must absolutely forbid Mr. Salling from being received in any of our offices. I know you feel as I do about this matter, and you may act upon my authority if you will. If he calls at your office, I want him told that we do not care for his company, and will be much obliged to him if he would keep away from us hereafter. Please do not fail to do this, as he must not make our office his loafing place. * * * Don't forget my request about Mr. Salling, for I want that dirty dog to understand that he cannot get into a cash register office in district No. 9. There is only one way to treat a traitor, and you know what that way is.'

The defendant in error brought an action against the plaintiff in error to recover damages for libel in issuing and publishing the circular letter above referred to, alleging that the same was false and malicious, and was published and circulated with intent to injure the defendant in error in his character, reputation, and standing as salesman and business man. In a second cause of action upon the second letter, the complaint alleged that the Hallar referred to there was X. H. Hallar of Los Angeles, Cal., and that at the time when the letter was published the defendant in error was conducting negotiations with Hallar for the establishment and maintenance of a corset factory, and that while said negotiations were pending the plaintiff in error sent said letter to Hallar for the purpose of creating distrust and suspicion in his mind against the defendant in error; that the letter was received and read by Hallar in July, 1906, and that after he had read it, and solely on account thereof, he broke off negotiations with the defendant in error, and declined to enter into any contract with him, to his damage in the sum of $25,000. The plaintiff in error answered, denying that the plaintiff in error sent notice to Thomas of the resignation of the defendant in error, and denying that the latter ceased to be an employe of the plaintiff in error on April 21, 1906. It admitted that, at about the time when the defendant in error sent in his resignation, the plaintiff in error became informed that he had resigned for the purpose of entering into the secondhand cash register business in the state of California, and that the plaintiff in error regarded such business as conflicting with and interfering with its own business, but denied that it was unfriendly or hostile to the defendant in error on that account. It admitted the distribution of the circular among its agents throughout the United States and Canada, and alleged that it was a privileged communication. Answering the second cause of action, the plaintiff in error alleged that it had not knowledge whether Hallar received or read the letter of Thomas to Wilson, or that on that account he broke off his said negotiations with the defendant in error, and it denied that said letter was published with intent to injure the defendant in error, and alleged that the same was a privileged communication. Upon the trial of the cause the jury returned a verdict for the plaintiff in error in the sum of $5,000 'as damages on account of the injury and prejudice to plaintiff's good name, reputation, and credit, and in the sum of nothing as punitive and exemplary damages.'

Before GILBERT, ROSS and MORROW, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

Error is assigned to certain of the instructions given by the court to the jury and to the denial of certain requested instructions. We are precluded from considering the latter, for the reason that the bill of exceptions does not contain the entire charge. For aught that we know to the contrary, the court properly instructed the jury upon all questions involved in the requested instructions.

One of the instructions excepted to is the following:

'Every publication which charges upon or imputes to any person that which exposes such person to hatred, contempt, ridicule, or obloquy, or which causes such person to be shunned or avoided, or which has a tendency to injure such person in his or her occupation, is prima facie false and unprivileged, and implies malice in the author or publisher.'

The exception taken to this was that it was erroneous for want of facts rendering it applicable, and that the facts in the case showed that the communications were privileged, and therefore malice would not be implied in the author of them, and because the instruction left it to the jury to decide whether or not the communications were qualifiedly privileged. The rule is that a communication made by one who has an interest to one who has a corresponding interest is privileged, if made in good faith and without malice; but where the communication goes beyond what the case requires, and is unnecessarily defamatory, the person making the same will not be protected. Did the undisputed facts...