Brown v. Norfolk & W. Ry. Co

• Decision Date: 20 November 1902
• Court: Virginia Supreme Court
• Parties: BROWN. v. NORFOLK & W. RY. CO.

42 S.E. 664

100 Va. 619

BROWN.

v.NORFOLK & W. RY. CO.

Supreme Court of Appeals of Virginia.

Nov. 20, 1902.

LIBEL—PRIVILEGED COMMUNICATION— MALICE—EVIDENCE.

1. The publication of an order discharging an employe of a railroad with the statement that he had been dismissed for intimating that an officer of the company had used insulting language in speaking of another officer, and that such intimation was untrue, which order was published after inquiry and investigation, was a privileged communication.

2. Where a communication is privileged, the party concerning whom it is marie has the burden of proof of showing that the party making it availed himself of the occasion not for the purpose of protecting his interests, but to gratify his malice.

¶ 2. See Libel and Slander, vol. 32, Cent. Dig. § 150.

3. A statement published by a railroad company that an employe had been dismissed for intimating that an officer of the company had made insulting reflections as to another officer, which was proved to be untrue, does not show language so violent or so disproportioned to the occasion as to raise an inference of malice, no extrinsic evidence of malice being shown.

Error to circuit court, Pulaski county.

Action by H. M. Brown against the Norfolk & Western Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

J. O. Wysor and D. S. Pollock, for plaintiff in error.

A. A. Phlegar, for defendant in error.

KEITH, P. Plaintiff in error, Brown, had been a fireman in the employment of the Norfolk & Western Railway Company for several years, and was well esteemed. In July, 1898, he was directed to take an engine from Radford to Bluefield, to be used in drawing an excursion train. This engine had been standing in the roundhouse at Radford without protection, and was in a rusty and filthy condition. Brown endeavored, as he states, to clean it by the use of oil and waste cotton, but was unable to do so. When the engine arrived at Roanoke, its condition was reported to Henretta, the road foreman of engines, who summoned Brown before him. Brown reported to Henretta in obedience to the summons, and stated to him that he had done his best with the means at his disposal and thereupon, as Brown alleges, Henretta used the following language: "Newman (meaning S. D. Newman, a master mechanic in the employment of the railway company), the damn son of a bitch, is the cause of all this trouble. He ought to have had that engine jacket lyed off, "—meaning that he ought to have had it washed with lye, in order to remove the rust and filth. Brown repeated the remark which Henretta was alleged to have made in the presence of several other employes of the railway company, and it was finally communicated to Newman. Thereupon Newman called upon Brown with reference to it, and Brown gave him a written statement of the occurrence as above narrated. When Newman, shortly thereafter, met Henretta, he asked him about this statement, and Henretta denied it, and asked him to get a written statement from Brown, and send it to him, which was done. Henretta also got a statement from Dickerson, who was present at the interview between Brown and himself, and then wrote to Fearce, division master mechanic, the following letter:

"The attached papers are self-explaining. I have only to state that Fireman H. M. Brown has told a deliberate lie. Mr. Dicker-son was witness to all my remarks when I was investigating Fireman Brown's neglect to properly clean engine 706. His statement is attached. The papers are handed you, that proper discipline may be applied. Yours truly, F. B. Henretta."

Pearce looked into the matter, and reported the result of his inquiry in the following letter to W. H. Lewis, superintendent of motive power:

"Further concerning the case of engine No. 706, which you will remember came out on an excursion train in a very dirty condition, fireman claiming he worked two hours cleaning the engine, and engineman stating that he put ten minutes on it. please note attached, from which it appears that Fireman Brown tried to get even by intimating that Mr. Henretta had cast reflections on the female ancestry of Mr. Newman, and lied about the matter. I think, under circumstances, that Mr. Brown's services should be dispensed with without further consideration. J. S. Pearce, D. M. M."

W. H. Lewis, as a result of his investigation, published the following order:

"A fireman has been dismissed from the service for intimating that an officer of the company had cast reflections upon the ancestry of another officer, which was proved to be untrue."

For the publication of this order the Norfolk & Western Railway Company was sued. The jury rendered a verdict against the defendant for $5,000. Subject to the judgment of the court upon the demurrer to the evidence, the court entered judgment for the defendant, and the case is before us upon a writ of error awarded upon the petition of the plaintiff. Brown.

The contention of the railway company isthat the order Issued by Lewis discharging Brown from the service of the company and assigning the reason for his action was a privileged communication, for which the defendant in error is not liable in damages, unless the publication was malicious; that the company acted in good faith, after due investigation, and was inspired by no other motive than a desire to promote the efficiency of its service, and to give necessary information to its employes.

In Chaffin v. Lynch, 83 Va. 106, 1 S. E. 803, it was held that: "To justify publication of defamatory matter, the occasion must be privileged, and must be used bona fide, without malice. Whether the occasion be privileged is a question of law for the court. Whether it has been used bona fide is a question of fact for the jury."

We think it plain that the communication which is the subject of controversy here was privileged. Brown had made a statement with reference to what was said by his superior officer, who was inquiring into the manner in which his duty had been discharged. He reported that Henretta had at that interview used language in the highest degree insulting to Newman, a co-employe. Henretta denied the truth of the...