Bacon v. Michigan Cent. R. Co.

• Decision Date: 09 June 1887
• Citation: 66 Mich. 166,33 N.W. 181
• Court: Michigan Supreme Court
• Parties: BACON v. MICHIGAN CENT. R. CO.

33 N.W. 181

66 Mich. 166

BACON v. MICHIGAN CENT. R. CO.

Supreme Court of Michigan

June 9, 1887

Error to circuit court, Berrien county.

Action for libel.

Clapp &amp Bridgman, for Bacon, plaintiff in error.

Edwards & Stewart, (Ashley Pound, Otto Kirchner, and Henry Russell of counsel,) for the Railroad Company, defendant in error.

CHAMPLIN J.

The Michigan Central Railroad Company is, and for a long time has been, engaged in operating a railroad extending from Detroit to Chicago. It employs agents at different points on its line, who have the care of divisions of its road, and who are authorized to hire men to work for defendant. It has adopted and carried into effect a plan by which every employe who is discharged from its service is reported to every agent authorized to employ men upon the line of its road regularly once a month. A list is made out by the assistant superintendent in charge of a division in which is entered the names of the persons discharged the previous month, their occupation and cause; and this list is sent to each of the agents of the company authorized to employ men and by them these lists are kept on file for their future reference and guidance in employing men. If a person who has been discharged from the service of the company applies for employment, the agent examines the list; and, if it there appears that he was discharged for some offense, he refuses to employ him. The railroad company claims that the plan adopted is essential to the efficiency of the force employed by it, and to the protection of the company and the public against engaging in its service incompetent or dishonest servants.

The plaintiff is a carpenter, and had been employed by the defendant for three or four years in the bridge department. He resided at Niles, a station on the line of defendant's road. He had been at work at Michigan City under a foreman by the name of Palmer, and about the fourteenth of March, 1882, and on the evening of that day, he entered the fast train of defendant to ride to Niles. He sat in the smoking car, which was poorly lighted, and he threw his overcoat in a seat near by. When he reached Niles, on leaving the train in a hurry, by mistake he picked up a coat which was not his, and left his own, and carried it, with his tools, to the company's shop, and threw it across a bench. The owner of the coat, who was at the time in the dining car, on returning, discovered his loss, and reported it to the conductor. The coat which belonged to the plaintiff was found where plaintiff and other employes had been sitting. It was an old coat, much worn, and had on it a leather button, attached to a string. The conductor telegraphed the chief train dispatcher at Jackson that there had been a coat taken on his train at Niles by one of Mr. Palmer's men and another left in its place. The matter was placed in the hands of a special agent or detective of the company, who sent word to Mr. Humphrey, another employe of the company, at Niles. The next morning after he received word from the special agent, he went into the yard where Mr. Bacon was at work, and asked him if his coat had a leather button on it, and he said it had. He then told him he had such a coat in the baggage room, and that he (Bacon) had made a mistake, and got another coat. Bacon then went over to the bench where he had left the coat he had taken from the car, and handed it to Humphrey, saying that it was not his, and advised Humphrey to send it back. The coats were quite dissimilar; the plaintiff's being a much worn chinchilla, and the other a beaver cloth coat, some worn, but in good condition. The special agent made his report to the assistant superintendent, stating "that the coat had been taken from the train, and that there was a big mistake,--after seeing both coats,--so much so that I could not believe the man honest who had taken it, and told him that we had enough to do to watch professional thieves without watching our own men." He both wrote and had a personal interview with the assistant superintendent. He did not, before he made the report, go to Niles to make examination in reference to the case. This report was based upon the inspection of the two coats, and what he had learned from Mr. Humphrey and the conductor. He testified that he believed what he stated in his report to Mr. Brown, the assistant superintendent. A day or two later, plaintiff was discharged, for which no cause was assigned at the time. Mr. George Dollivar was the defendant's agent at Niles as division road-master, and whose duty it was to employ men. He received one of these discharged lists in April, 1882, for the month of March. Plaintiff came to him, and requested to see the list. He showed it to him. It contained, among other names, the following:

MARCH, 1882.

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NAME. OCCUPATION. WHY DISCHARGED.

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Bacon, John. Carpenter. Stealing.

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Thereupon the plaintiff brought this action of libel against defendant.

The court charged the jury that the communication was privileged, and the plaintiff could not recover without proving affirmatively not only the falsehood of its contents, but also that it was published with express malice; and upon the latter point he instructed the jury that there was no evidence to go to them, and he directed a verdict for the defendant. This charge of the court raises the only questions for our consideration, which are--First, was the communication privileged; and, second, did the court err in taking the case from the jury on the ground of an entire want of evidence of express malice.

It is not claimed that the communication belongs to that class which are absolutely privileged, but counsel for defendant contends that it was a publication which related to a mater in which the defendant was interested, and concerning which the corporation and its officers, to whom it was sent, must needs be advised in order to prosecute defendant's business successfully, and therefore it was prima facie privileged; and, to entitle plaintiff to recover, he must show that the publication was both false and malicious. The great underlying principle upon which the doctrine of privileged communications stands, is public policy. This is more especially the case with absolute privilege, where the interests and necessities of society require that the time and occasion of the publication or utterance, even though it be both false and malicious, shall protect the defamer from all liability to prosecution for the sake of the public good. It rests upon the same necessity that requires the individual to surrender his personal rights, and to suffer loss for the benefit of the common welfare. Happily for the citizen, this class of privilege is restricted to narrow and well-defined limits. Qualified privilege exists in a much larger number of cases. It extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to a person having a corresponding interest or duty. And the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation. Tompson v. Dashwood, 11 Q.B.Div. 45; Davies v. Snead, L.R. 5 Q.B. 611; Waller v. Lock, 45 Law T. (N.S.) 243; Somerville v. Hawkins, 10 C.B. 583, 20 Law J.C.P. 131; Toogood v. Spyring, 1 Cromp., M. & R. 181; Bank v. Henty, 7 App.Cas. 741; Delany v. Jones, 4 Esp. 193; Laughton v. Bishop, etc., L.R. 4 P.C. 504; Harrison v. Bush, 5 El. & Bl. 344, 25 Law J.Q.B. 25; Whiteley v. Adams, 15 C.B. (N.S.) 392, 33 Law. J.C.P. 89; Shipley v. Todhunter, per TINDAL, 7 Car. & P. 680; Harris v. Thompson, 13 C.B. 333; Wilson v. Robinson, 7 Q.B. 68, 14 Law J.Q.B. 196; Taylor v. Hawkins, 16 Q.B. 308, 20 Law J.Q.B. 313; Manby v. Witt, 18 C.B. 544, 25 Law J.C.P. 294; Lewis v. Chapman, 16 N.Y. 372; Henwood v. Harrison, 41 Law J.C.P. 206; Edwards v. Chandler, 14 Mich. 471; Washburn v. Cooke, 3 Denio, 110; Knowles v. Peck, 42 Conn. 386; Easley v. Moss, 9 Ala. 266; Van Wyck v. Aspinwall, 17 N.Y. 190; Cockayne v. Hodgkisson, 5 Car. & P. 543; McDougall v. Claridge, 1 Camp. 267; Weatherston v. Hawkins, 1 Term R. 110; Laughton v. Bishop, etc., L.R. 4 P.C. 495.

The communication in question here is clearly within the principle of the cases above cited. It was made by a person interested in behalf of defendant company, and having in charge its affairs, to a certain extent, to another person alike interested in behalf of the company regarding matters pertaining to his duties as an agent of the company authorized to employ men. Care was taken to restrict the communication to the proper persons, and also to prevent undue publicity. It is not only proper, but it is of the utmost importance to the company, and to the public business transactions with it, that the servants employed by it shall be men of good character, temperate, and efficient. Corporations may be liable for the negligence of their employes,--not only so, but they may be held responsible for not engaging suitable servants, as well as for continuing in their employment unsuitable servants whereby third persons suffer loss or injury through the want of care, skill intemperate habits, or honesty of such servants. The plan adopted and pursued by the defendant was intended to protect the company against employment of persons whom it had found to be unworthy or inefficient, and is as fully privileged as a communication from one stockholder to another respecting the employment of a superintendent, or from one partner to another respecting the employment of...