Brotherhood of Railroad Trainmen v. Jennings

• Decision Date: 26 March 1936
• Docket Number: 6 Div. 828
• Citation: 168 So. 173,232 Ala. 438
• Parties: BROTHERHOOD OF RAILROAD TRAINMEN et al. v. JENNINGS.
• Court: Alabama Supreme Court

168 So. 173

232 Ala. 438

BROTHERHOOD OF RAILROAD TRAINMEN et al. v. JENNINGS.

6 Div. 828

Supreme Court of Alabama

March 26, 1936

Rehearing Denied May 28, 1936

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for libel by Martin A. Jennings against the Brotherhood of Railroad Trainmen and Grand Lodge of Brotherhood of Railroad Trainmen. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

Crampton Harris, of Birmingham, for appellants.

W.A Denson, of Birmingham, for appellee.

GARDNER Justice.

The action is libel, rested upon a letter alleged to have been written by Roy C. Smith on December 12, 1923, directed to Lee, the president of defendant organization, at Cleveland Ohio, which was also the foundation of companion suits heretofore considered by this court. Weir v. Brotherhood of Railroad Trainmen, 221 Ala. 494, 129 So. 267; Richardson v. Brotherhood of Railroad Trainmen, 221 Ala. 449, 129 So. 574; Collins v. Brotherhood of Railroad Trainmen, 226 Ala. 659, 148 So. 133, 134; Bridwell v. Brotherhood of Railroad Trainmen, 227 Ala. 443, 150 So. 338, 341.

Among other matters determined, those opinions settled the question that time and place were material to be alleged and proved. The complaint contains numerous counts with varying charges as to time and place of publication, among them, Birmingham, Ala., and St. Louis, Mo.

Defendants strenuously insist, in the first place, that the trial court erred in the refusal of the affirmative charge duly requested in their behalf as to those counts resting upon Birmingham as the place of publication, and that such a ruling runs counter to the holding of this court in the companion case of Collins v. Brotherhood of Railroad Trainmen, supra.

But the proof on this trial is materially different from that considered in the Collins Case, supra, such a difference which, in our opinion, justified the trial court in submitting these counts to the jury's consideration, without in any way infringing upon the former decisions of this court. Defendants lay much stress upon the following language of the opinion in the Collins Case, supra:

"We may assume, for the purpose of deciding this case only, that Roy C. Smith was an agent of the defendants during the years 1923 and 1924, and that he, in the line and scope of his duties as such, came to Birmingham for the purpose of getting the members of the Switchmen's Union to join his organization; that he failed in his undertaking, and, upon returning to Atlanta, Ga., he wrote the 'Smith letter' to W.G. Lee, president of the Brotherhood of Railroad Trainmen, at Cleveland, Ohio, under date of December 12, 1923; that W.G. Lee, in turn, under date of December 18, 1923, transmitted the 'Smith letter' to F.W. Morey, at Springfield, Mo., with the statement in the nature of instructions, (a) 'which I would be glad to have you carefully preserve and return to me after it has served your purpose.' (b) 'If you feel justified in reaching President Kurn or the general manager of the Frisco and reading to him any part of the enclosed report you have my permission to do so, with the understanding, however, that the source of the information will be treated strictly in confidence.'

"Copies of this 'Smith letter' thereafter turned up in Birmingham,, and the original letter also appeared in Birmingham, Ala., before this suit was brought, but it nowhere appears in the evidence that any of the copies of the letter were sent there by defendants, or by their direction, or with their consent, or by their procurement.

"The evidence leaves no room to doubt that T.C. Cashen, international president of the Switchmen's Union--the object of the alleged libelous letter--brought it into this state and exhibited it at Birmingham, Ala. Just how, or in what way, the international president came into possession of the letter, the plaintiff's evidence gives no hint or suggestion. However, if he got it from Morey, that subordinate official of the defendants exceeded his authority, and violated the duty enjoined upon him by his principal, and the latter was not answerable for the same."

There, it is to be noted reference was to copies of the alleged libelous letter, and the conclusion reached that if the original was brought into Jefferson county, it was Cashen, international president of the Switchmen's Union, of which plaintiff was a member, who so introduced it into that county. But in the instant case the only proof as to Cashen's possession of the original letter was that disclosed by testimony of counsel for plaintiff, who testified that Cashen so delivered it to him after this suit was brought. The action was commenced in September, 1924. There is proof tending to show that Roy C. Smith was in Birmingham in November, 1923, and March, 1924. He was a deputy vice president or organizer for defendants, and the above-noted extract from the opinion in the Collins Case, supra, correctly discloses his purpose. He was, as stated, organizer for defendants, and the evidence justifies the inference that he was in Birmingham to accomplish the purpose of procuring the members of plaintiff's organization to join his own, all within the line and scope of his authority. Morey was general chairman of the Frisco System for defendants' organization.

In the Richardson Case, supra, the court was of the opinion the proof was sufficient prima facie to show that Lee sent Smith's letter to Morey at Springfield, Mo., with instructions to preserve and return, but also with express permission, if Morey felt so justified, in reading to "president Kurn or the general manager, of the Frisco" any part of the report inclosed (Smith's letter) with the understanding that the source of the information be treated "strictly in confidence."

Plaintiff's proof tends to show that the original Smith letter was seen in the hands of one Cowan, chief special officer of the Frisco whose duty it was to see after "anything that might be wrong or improper conduct"; and that either late in December, 1923, or early in January, 1924, this original letter was seen in the hands of Sisson, general manager of the Frisco Railroad in his private car when in Birmingham; that in March, 1924, Goad, special officer for the Louisville & Nashville Railroad, saw this original letter in the office of the superintendent for the Louisville & Nashville Railroad Company in Birmingham, when the then superintendent, W.E. Smith, handed it to him in the presence of Roy C. Smith, the author.

That a publication has, therefore, been shown in Jefferson county, there can be no serious controversy. The important question is whether or not there was proof tending to show defendants' responsibility therefor.

It is to be noted this proof concerned, not mere copies, but the original document itself, identified as such in the hands of those to whom the information therein contained was permitted by Lee, in his instructions to Morey, to be given, that is, the general manager of the Frisco, and this during the latter part of the same month in which it was written, or the early part of the next. And in addition to this, the original is again found in the hands of important Louisville & Nashville Railroad officials at a time when Roy C. Smith, the author, was present in March following. And in the instructions from Lee to Morey, the latter was also directed to report what he had been "able to accomplish along the line referred to."

In the Bridwell Case, supra, this court said: "We have never doubted that responsibility rests upon one who publishes a libel for its repetition to the extent that it was so intended, or was the natural and probable result of the original publication, as where it was known that some person receiving it would naturally or probably or ought reasonably so repeat it. Those are questions for the jury when the evidence is sufficient to reach a reasonable conclusion to that effect."

Direct proof of publication by defendant is not essential, but any fact established to the satisfaction of the jury from which it may legally be inferred will suffice. 37 Corpus Juris, 74; 17 R.C.L. 425; 3 Elliott on Evidence, § 2450.

And it is well settled that the principal is responsible for the acts of his agent done within the scope of his employment, and in the accomplishment of objects within the line of his duties, though the agent seek to acomplish the master's business in a way not so authorized by the master, unknown to him or even contrary to his direction. Hardeman v. Williams, 169 Ala. 50, 57, 53 So. 794.

In determining this question of defendants' responsibility, the jury may consider all the facts and circumstances above outlined in connection with the Roy C. Smith report to Lee, the latter's instructions to Morey, and all the proof tending to show the object sought to be obtained, together with the proof that Smith, as organizer, traveled over the country, at the direction of Lee, and came to Birmingham under Lee's orders. All of these matters considered, we are of the opinion that a jury question was presented as to defendants' responsibility for publication in Jefferson county, and that the affirmative charge as to those counts was properly refused.

As to Cleveland, Atlanta, and Springfield counts (to so designate them by reference to place of publication), defendants interposed pleas of privilege, and insist these pleas were established to such an extent as to call for the affirmative charge also as to these counts. It may be conceded that the proof as to these communications from one official to another came within the class of conditional or qualified privilege, and sufficed to cast the burden on plaintiff to show actual or express malice. Kenney v. Gurley, ...