Chalkley v. A.C.L.R. Co.

• Decision Date: 14 June 1928
• Parties: W. B. CHALKLEY v. ATLANTIC COAST LINE RAILROAD COMPANY.
• Court: Virginia Supreme Court

Page 301

150 Va. 301

W. B. CHALKLEY v. ATLANTIC COAST LINE RAILROAD COMPANY.

Supreme Court of Virginia, Richmond.

June 14, 1928.

Argued and submitted before Judge Holt took his seat.

1. MASTER AND SERVANT — Libel and Slander — Letter Discharging Servant Alleged to be Libelous — Qualified Privilege — Malice — Case at Bar. — In the instant case plaintiff brought his action for libel against defendant, his master, basing the action upon a letter discharging him. The occasion therefor was one of qualified privilege. The discharge of plaintiff and the communication upon which the action is based, being so privileged, the question was not whether the charge was true or false, but only whether the privilege was abused or the language employed was uttered and published with malice.

2. LIBEL AND SLANDER — Malice — Privilege — Questions of Law and Fact — No Evidence to Show Malice. — Generally, malice is a question of fact to be submitted to a jury, but where the communication is privileged, unless there is evidence from which a jury may fairly conclude that there was malice, there can be no recovery.

3. LIBEL AND SLANDER — Malice — Privilege — Questions of Law and Fact — No Evidence to Show Malice. — If the plaintiff fails to offer evidence of an extrinsic character to prove actual malice on the part of the defendant, in the publication of a libel on a qualifiedly privileged occasion, and if the language of the communication and the circumstances attending its publication by the defendant are as consistent with the non-existence of malice as with its existence, there is no issue for the jury, and it is the duty of the trial court to direct a verdict for the defendant.

4. LIBEL AND SLANDER — Privilege — Definition of Malice. — The malice which avoids the privilege is actual or express malice, existing as a fact at the time of the communication and which inspired or colored it. Such malice exists where one casts an imputation which he does not believe to be true, or where the communication is actuated by some sinister or corrupt motive or motives of personal spite, or ill-will, or where the communication is made with such gross indifference to the rights of others as will amount to a wilful or wanton act.

5. LIBEL AND SLANDER — Questions of Law and Fact — Malice. — The trial court may properly refuse an instruction submitting the question of malice to the jury where there is no legal evidence in the record to suggest malice, but where there is evidence tending to show malice in the utterance of the words spoken, or in the published communication, that question cannot be properly taken from the jury. Where the defendant acts in performance of a duty, legal or social, or in defense of his own interests, the occasion is privileged and there is a legal presumption that he acted without malice which the plaintiff must rebut by evidence. Strong or violent language disproportionate to the occasion, however, may raise an inference of malice, and thus lose the privilege which would otherwise attach to it.

6. LIBEL AND SLANDER — Presumbtion of Malice — Privilege. — Ordinarily the law implies malice from the use of words defamatory or insulting. But the presumption is the other way, where the occasion of the publication is privileged, and the onus is then upon the plaintiff to prove malice in fact.

7. LIBEL AND SLANDER — Master and Servant — Discharge of Servant — Evidence to Show Malice. — The instant case was an action for libel by plaintiff, a telegraph operator, against defendant railroad. Plaintiff based his action upon a letter from defendant's superintendent discharging him. Plaintiff, to show malice in the superintendent, testified to three incidents between him and the superintendent: First, that the superintendent had asked him to take a job as car inspector and had not seemed to like his refusal to do so. Secondly, that he had once seen a letter from the superintendent objecting to a train being stopped to let him off, and went to see the superintendent about it, and denied to him that it was his fault; whereupon the superintendent replied: "Don't make any more; mistakes cost too much." And thirdly, that upon being hurt he had received $170.00 from the company, and that he had heard, and told the superintendent that he had heard, that the superintendent said that he "did not know where they got such operators from;" that there was plaintiff who got a little lick on the arm and they had to give him $170.00. Plaintiff testified that his relations with the company were not affected by these incidents. Defendant testified that he had no recollection of the incidents, and that he had no ill feeling towards plaintiff.

Held: That this evidence was entirely inadequate to support the contention that the qualified privilege was abused in the discharge of plaintiff.

8. LIBEL AND SLANDER — Privilege — Letter of Master Discharging Servant — Necessity of Extrinsic Evidence of Malice — Case at Bar. — In the instant case plaintiff, a telegraph operator, brought an action against defendant railroad for libel, basing the action upon a letter from defendant discharging him for alleged drunkenness. Plaintiff denied that he was drunk. Defendant's superintendent thoroughly investigated that question, hearing many statments both pro and con. The superintendent testified that after conference with another officer of defendant it was decided that for the good of the service plaintiff should be discharged. He further testified that he had no animus or prejudice against plaintiff. The weight of the evidence submitted to the superintendent supported his conclusion that plaintiff should be discharged. But that was not the question which the court had to consider, because whether the evidence was true or not, if the conclusion to discharge plaintiff was reached and acted on in good faith, no action would lie therefor.

Held: That the court did not err in sustaining a demurrer to the evidence, plaintiff having failed to show any malice or abuse of privilege.

9. LIBEL AND SLANDER — Publication — Whether Dictation to a Stenographer Constitutes a Sufficient Publication. — Where the communication of the libelous matter to the plaintiff is in the customary and usual course of the business of the defendant, in the discharge of an ordinary business duty, and is merely dictated to a stenographer, or copyist, who is charged with the duty of transcribing it, this is not such a publication of the alleged libel as will support an action.

10. LIBEL AND SLANDER — Publication — Whether Dictation to a Stenographer Constitutes a Sufficient Publication — Privilege. — Libelous matter is privileged when dictated to a stenographer in the discharge of ordinary business.

11. LIBEL AND SLANDER — Publication — Whether Dictation to a Stenographer Constitutes a Sufficient Publication — Privilege — Officer of Corporation Dictating to Stenographer of the Corporation. — The dictation by an officer of a corporation to a stenographer of the corporation, of libelous matter concerning firm business, does not constitute a publication of the letter. There is, in fact, but one act by the corporation, and those engaged in the performance of it are not to be regarded as third persons, but as common servants engaged in the act. Where the communication is privileged the typist has his duty to discharge in the ordinary course of business in connection with the transcription of the communication.

12. LIBEL AND SLANDER — Publication — Whether Dictation to a Stenographer Constitutes a Sufficient Publication — Privilege — Subterfuge — Case at Bar. — The rule that dictation to a stenographer in the ordinary course of business is not a sufficient publication cannot be invoked for the protection of those who use it as a mere subterfuge where the libelous matter is in fact communicated to one who has no duty to perform in connection therewith, or is otherwise actually disseminated. But it does apply to the instant case where the facts are undisputed and all that was done by the defendant's agents was to dictate the order of dismissal in appropriate language, in the usual course of business, and communicate it through the customary channels to the employee.

13. LIBEL AND SLANDER — Publication — Whether Dictation to a Stenographer Constitutes a Sufficient Publication — Privilege — Subterfuge — Case at Bar. — If a master, in the usual course of his business, merely dismisses his employee when he has a right to dismiss him, and uses temperate language for the purpose and communicates it in writing to the employee, but to no one else, this is not a publication which will support such an action. In the instant case this was in effect all that the defendant had done. Being a corporation, it could only speak through its agents. The discharge of the plaintiff was a single act in which only two parties participated, one the defendant, the master, speaking through its superintendent, and the other the plaintiff, the employee. There being no evidence showing any publication, there was no basis for the action.

Error to a judgment of the Circuit Court of Sussex county, in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

Harry L. Snead, for the plaintiff in error.

Mann & Townsend, for the defendant in error.

PRENTIS, P., delivered the opinion of the court.

The only questions which we are called upon to consider in this case arise under the third and fourth counts of the declaration charging libel.

The plaintiff, Chalkley, was a telegraph operator with an experience extending over a period of twenty-three years, during eight years of which he was employed by the defendant company. October 30, 1923, he was employed as telegraph operator at Weldon, N.C.

This is the communication alleged to be libelous:

"ATLANTIC COAST LINE RAILROAD COMPANY.

"Richmond, Virginia, November, 9, 1923. "W. B. Chalkley, "Drewry's Bluff, Va. "Dear...