Choctaw Coal & Mining Co. v. Lillich

• Decision Date: 21 October 1920
• Docket Number: 6 Div. 117
• Citation: 86 So. 383,204 Ala. 533
• Court: Alabama Supreme Court
• Parties: CHOCTAW COAL & MINING CO. v. LILLICH.

86 So. 383

204 Ala. 533

CHOCTAW COAL & MINING CO. v. LILLICH.

6 Div. 117

Supreme Court of Alabama

October 21, 1920

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action for damages for libel and slander by John Lillich against the Choctaw Coal & Mining Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals, under section 6, p. 449, Acts 1911. Reversed and remanded.

John H Bankhead, Jr., of Jasper, for appellant.

Leith &amp Powell and M.E. Nettles, both of Jasper, for appellee.

SOMERVILLE J.

The undisputed evidence shows that a typewritten sheet containing a list of the names of coal miners who did not report for work on the preceding day was each day posted on a board at the mouth of the mines operated by the defendant company that on or about July 18, 1918, such a list was so posted by an agent of the operating company under the caption "Employees not working July 18th," and in the list was the name of the plaintiff; that one Verg West, who was defendant's assistant superintendent, thereupon wrote on said board, with chalk or paint, above the paper sheet the words "List of Slackers"; and that the board in that condition was seen by a number of people.

Although the witness Nicol testified that he was general superintendent for defendant company prior to July 9, 1920, and that on that day defendant company discontinued its operation of these mines and turned them over to another company which thenceforth operated them exclusively, there was other testimony from which the jury could properly find that defendant company continued to control and operate the mines down to a date later than July 18th.

The defendant company's responsibility for the alleged libel, assuming that it was in control of the mines at the time in question, must be based upon one of three propositions: (1) The libel must have been published by the servant West by the authority of defendant company; or (2) it must have been thereafter ratified or approved by it; or (3) it must have been published by West while acting within the scope of his authority, or within the course of his employment, in furtherance of defendant company's business. Republic I. & S. Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A.1915F, 516; So. Exp. Co. v. Fitzner,

59 Miss. 581, 42 Am.Rep. 379; 10 Cyc. 1216, b.

It may be noted in passing that corporate liability for "oral" defamation must be grounded upon either the express authority of the servant who utters it, or upon corporate ratification thereafter. Singer Mfg. Co. v. Taylor, 150 Ala. 574, 43 So. 210, 9 L.R.A. (N.S.) 929, 124 Am.St.Rep. 90; 10 Cyc. 1216, 5.

There is nothing in the testimony which tends in any way to show that West was authorized by defendant company to write this offensive language over plaintiff's name on the board.

Nor is there anything in the evidence that has the slightest tendency to show that defendant company ever approved or ratified the act. It appears that the writing remained on the board for a day or two at most; and, even if the inference could be drawn that defendant company had notice or knowledge of its brief presence there, there was nothing to betray its authorship, and nothing to indicate that a servant of the company was professing to act in its behalf or assuming authority to do so.

Had the company been advised of the writing, and that it was done by its servant in its behalf, its failure to repudiate the act with reasonable promptness would no doubt have amounted to approval...