Collins v. Brotherhood of Railroad Trainmen

• Citation: 226 Ala. 659,148 So. 133
• Decision Date: 30 March 1933
• Docket Number: 6 Div. 909.
• Parties: COLLINS v. BROTHERHOOD OF RAILROAD TRAINMEN et al.
• Court: Supreme Court of Alabama

148 So. 133

226 Ala. 659

COLLINS v. BROTHERHOOD OF RAILROAD TRAINMEN et al.

6 Div. 909.

Supreme Court of Alabama

March 30, 1933

Rehearing Denied May 25, 1933.

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

Action for libel by O. W. Collins against the Brotherhood of Railroad Trainmen and the Grand Lodge of the Brotherhood of Railroad Trainmen. From a judgment for defendants, plaintiff appeals.

Affirmed.

W. A Denson, of Birmingham, for appellant.

Crampton Harris, of Birmingham, for appellees.

KNIGHT Justice.

The appellant, a member of the Switchmen's Union, at Birmingham, Ala., filed this suit against the Brotherhood of Railroad Trainmen and the Grand Lodge of the Brotherhood of Railroad Trainmen, and certain named individual defendants. But, before the case was closed, the plaintiff dismissed his suit against the individual defendants.

The defendants filed many grounds of demurrer to the several counts of the complaint. This demurrer was sustained by the court, and the appellant here insists that, in sustaining the demurrer to the several counts of the complaint, the court committed error to his prejudice.

This court, in the case of Weir v. Brotherhood of Railroad Trainmen et al., reported in 221 Ala. 494, 129 So. 267, 272 which case grew out of the same alleged libelous publication and which is, so to speak, a companion case with the one now before us, had occasion to consider the sufficiency of counts of a complaint identical in substantial averment with the several counts of the complaint in this cause.

In the Weir Case, supra, in an opinion by Mr. Justice Thomas, this court held that libelous matter transmitted by mail "is [involves] the uttering or publication of the same at two points-that of its dictation, if so it was written, read, and understood, and at the place of its receipt by addressee." Kenney v. Gurley, 208 Ala. 623, 95 So. 34, 26 A. L. R. 813. And it was also there held that it was not essential to plaintiff's case that there should have been a publication of the libel in the state of Alabama.

In the concluding paragraphs of the opinion in the Weir Case it is said:

"We may say further that the place where of publication in such a case by letter becomes material in the fact that the proof, and the source of proof, as to publication is different in one state or in another, dependent upon what set of facts the plaintiff proceeds on; thus the place where becomes a material allegation in the instant case.

"The specific ground of demurrer, that the date of said alleged publication is not made to appear, was well taken to counts as originally filed; and so of the necessity of the nature of the publication and that it was before the suit. There was no error in sustaining demurrers to the original counts, and hence no error in driving the plaintiff to amendment of the complaint. Section 9531, Code, Form Nos. 16 and 17; Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193, 37 A. L. R. 898; Phillips v. Ashworth, 220 Ala. 237, 124 So. 519; Shadix v. Brown, 216 Ala. 516, 113 So. 581."

We are not convinced that the conclusion reached by this court in the Weir Case, supra, as to the insufficiency of the several counts of the complaint for failing to aver the time when and the place of the publication was wrong, but, to the contrary, we are firmly of the opinion that the holding in that case was, and is, sound. We adhere thereto, and, in so doing, we hold that the trial court, in this case, properly sustained the demurrers to the several counts of the complaint as originally filed.

It was not held in the Weir Case that the defendants could not be proceeded against in this state for the publication of a libel in another state, provided the courts of this state acquired jurisdiction of the defendants. On the contrary, we expressly held in that case that it was not essential to the plaintiff's right of maintenance of the action that there should have been a publication of the libel in the state of Alabama. Code, § 5681; Stevens, Trustee, v. Hopson, 215 Ala. 261, 263, 110 So. 147; Newell on Slander and Libel, p. 219 (note 4); Townsend on Slander (4th Ed.) p. 90, § 110, p. 572, § 326, notes 1 and 2; 36 Corpus Juris, p. 1227, § 18, p. 1229.

After the demurrers were sustained, the plaintiff amended the several counts of his complaint, among other things, by adding to each count the following averment: "Plaintiff avers said libelous publication was made in Jefferson County, state of Alabama, during the latter part of the year 1923, and in the first part of the year 1924, and at sundry other times and places unknown to plaintiff." (Parenthetically, we may state, a similar amendment was made in the Weir Case, supra.)

Inasmuch as the defendants were before the court, and within its jurisdiction, the plaintiff might well have proceeded against them by proper amendment for the publication of the Smith letter in the state of Georgia, if it was in fact published in that state; and likewise for the publication of the same letter in the state of Ohio, if it was in fact published in that state, but the plaintiff elected to charge the defendants with the publication of the alleged libelous letter in Jefferson county, Ala. This being true, the plaintiff, in order to make out his case, was compelled to prove to the reasonable satisfaction of the jury that the Smith letter was published in Jefferson county, either by the defendants or by some one else by their direction, consent or procurement. Or, if the original letter was not so published in Jefferson county, that copies of the same were there published by the defendants, or by some one else, by their direction, consent, or...