Polk v. Missouri Pacific Railroad Co.

• Decision Date: 27 November 1922
• Docket Number: 11
• Parties: POLK v. MISSOURI PACIFIC RAILROAD COMPANY
• Court: Arkansas Supreme Court

245 S.W. 186

156 Ark. 84

POLK v. MISSOURI PACIFIC RAILROAD COMPANY

No. 11

Supreme Court of Arkansas

November 27, 1922

Appeal from Independence Circuit Court; Dene H. Coleman, Judge affirmed.

Judgment affirmed.

W M. Thompson, for appellant.

The communication passing between appellant and Daniels, in his individual capacity and as superintendent for the railroad company, was not a privileged communication, either absolute or qualified. Am. & Eng. Encyc. of Law, 2 ed. vol. 18, p 1023; Id. 1029; 100 Ark. 477. Daniel did not exceed his authority. He was clothed with authority to employ and discharge section foremen. The railroad company is liable for his tort. 29 Ky. Law Rep. 861; 96 S.W. 551; 8 L. R. A. (N. S.) 1023. The testimony shows that it ratified his action. 100 Ark. 477. Malice on the part of Daniel toward appellant was shown not only by his attitude toward him, but also by the defamatory words used. 56 Ark. 100; 19 S.W. 236; Am. & Eng. Encyc. of Law, 2nd ed., 1043. Even though the slanderous words used be held as coming under the rule of qualified privilege, the testimony presented an issue which should have gone to the jury. 103 Ark. 231; 146 S.W. 497; 107 Ark. 158; 154 S.W. 215.

Thos. B. Pryor and Ponder & Gibson, for appellees.

1. The statement attributed to Daniel was a privileged communication, coming under the class of conditional or qualifiedly privileged communications, and the question whether or not it was privileged was primarily a question of law for the court. 17 R. C. L. 328, 329, 341; Id. 356: 100 Ark. 477; 83 P. 444; 81 A. 1013; 42 So. 591; 83 P. 131; 4 L. R. A. (N. S.) 1091; Newell on Libel & Slander, 477-78; Id. 48; 23 Ill. 498. A communication is qualifiedly privileged where made in good faith in the performance of duty, or where the situation is such that it becomes right in the interest of society to make the communication. 56 Am. St. Rep. 170 and note; 40 L. R. A. (N. S.) 1102; 86 Am. Dec. 84; 76 N.W. 961; 21 A. 154; 39 A. 4; 70 S.W. 607; 48 N.W. 555. And the party making the statement is protected, if it is made to a party having a corresponding interest, even though it contains matter which, without such interest, would make it actionable. 110 P. 181; 45 L. R. A. 735; 22 Am. Dec. 418; 46 N.W. 5; 41 Am. St. Rep. 863 and note; 78 S.W. 1071. See also 51 N.E. 811; 11 S.W. 555; 25 Cyc. 547; 95 Ark. 539; 15 Am. St. Rep. 794; 11 Am. Law Rep. 1010; 5 Id. 451; 46 L. R. A. (N. S.) 104; 123 P. 478. In cases of qualified privilege the burden of proof rests on the plaintiff, and malice will not be inferred, but must be proved. 13 Am. St. Rep. 775; 1913 Ann. Cas. 1070 and note; 7 A. & E. Ann. Cas. 192; 3 A. L. R. 1351; 56 Am. Rep. 274; 109 Mass. 193; 19 Barb. (N. Y.) 111; 3 L. R. A. (N. S.) 696; 16 L. R. A. (N. S.) 1017; 18 A. L. R. (N. S.) 1032; 81 N.W. 792.

2. The appellee Missouri Pacific Railroad Company is not liable for the statements made by appellee Daniel, the same not being within the scope of his authority, nor authorized, ratified or approved by the company. Wood on Master & Servant, §§ 279 and 307; 32 S.E. 392; 45 S.E. 532; 62 Am. St. Rep. 320; Newell on Libel & Slander, 361; 43 So. 210; 95 Ark. 534; 105 Ark. 326.

OPINION

SMITH, J.

Appellant Polk brought this suit to recover damages for certain alleged slanderous statements made by appellee Daniels, individually and in his capacity of superintendent of the White River division of the Missouri Pacific Railroad, in the presence of certain witnesses, whose names were set out in the complaint. The statements were: "Mr. Polk, are you prepared to reimburse the company for the time you defrauded them out of? Unless they are reimbursed, you stand liable to criminal prosecution by the company."

The railroad and Daniels answered and admitted that Daniels had used the language quoted, but alleged that it was privileged, and the trial court accepted that view, after hearing the testimony in behalf of the plaintiff, and directed a verdict in favor of the defendants.

Polk testified that on the 8th of September, 1920, the defendant Daniels, acting in his capacity as superintendent of the railroad company, requested him to be present at a meeting to be held in the office of the superintendent at Aurora, Missouri, for the purpose of investigating the question of the seniority of an employee of the company named Grooms, and that in compliance with that request he was passed without paying transportation, so that he could attend the meeting, and, while being examined by the said Daniels, acting for the said railroad, he was asked the question set out above in the presence of a man named Donne and another named Moreland, the persons named in the complaint as being present, and that said statements were false and humiliating.

The testimony developed the fact that Daniels was hearing the grievances of certain employees who were members of the United Brotherhood of Maintenance of Way Employees, and Moreland and Donne were officers of that organization, and it was their business and duty to be present at such hearing to present the cases of the aggrieved employees who were members of that order.

Polk had corresponded with Daniels about his own seniority as a section boss, in which capacity he was employed by the railroad company. He had also made complaint about the discharge of one of his sons who had been employed by him as a member of his section gang. It is the insistence of Polk that there was no charge against him, and that he was present for the purpose only of giving testimony in the matter of the seniority rights of Grooms, who was also a section hand and who had been discharged by the company, and that Donne and Moreland were not interested in the statement complained of, and that it was collateral to any subject under inquiry, and that Daniels took advantage of the occasion to vent his anger against the plaintiff, and that the statement had no relevancy to any matter under consideration. If the testimony is legally sufficient to support that contention, then a case was made for the jury, and a verdict should not have been directed in favor of the defendant.

Polk testified that two of his sons had been members of his section gang, and that one of them had been laid off and the other one discharged, and that he wrote to W. W. Gnadt, at St. Louis, Missouri, wanting to know why they were laid off, and also why Grooms was laid off. Gnadt was the general chairman at St. Louis of the brotherhood of which Polk was a member, and it was Gnadt's duty to see that investigation was made or complaints similar to the one which Polk had lodged with him. Polk testified:

"I called the general chairman at St. Louis and asked him to have an investigation of cutting the boys off, and also relative to one of the Grooms boys, who had been laid off at Sulphur Rock for three weeks or something like that, and the general chairman sent me a letter and informed me that Moreland would be in Aurora, Missouri, on the 9th of September, 1920." He was asked: "So you went up there to investigate the discharge of Frank (Polk)?" and answered: "Frank and the Grooms boy. While the Grooms boy was not discharged, he was just laid off." He was also asked: "So you went over to Aurora on September 8, 1920, for the purpose of having an investigation there before the superintendent, Daniels, in his office, to see whether or not they were right or wrong in discharging your boy Frank?" and answered: "Yes sir, and young Grooms. I intended to bring that up, too. and my seniority right also, while I was there."

It appears that there is, or was, a clause in the contract between the railroad company and the Brotherhood of Maintenance of Way Employees which provided that any employee who was a member of that order and who was disciplined or dismissed should be entitled to a hearing before his dismissal became final. The right to discharge existed, but, under the railroad's agreement with the brotherhood, it was customary for the aggrieved employee to go to the officer of the railroad company having the matter in hand, together with some officer of the brotherhood, to investigate to see if the discharge was rightful.

Donne testified that in Daniels' cross- examination of Polk he asked about the employment of Polk's son, and advised Polk that an investigation had been made of the time-books kept by Polk as far back as January, 1919, and that he found certain days in the months of March and December, 1919, and a day in January, 1920, when Polk had put in time for his son when the son had not worked. Polk denied this, and, after some further discussion, Daniels made use of the...