Elmore v. Atlantic Coast Line R. Co.

• Decision Date: 13 May 1925
• Docket Number: 93.
• Parties: ELMORE v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

127 S.E. 710

189 N.C. 658

ELMORE v. ATLANTIC COAST LINE R. CO.

No. 93.

Supreme Court of North Carolina

May 13, 1925

Appeal from Superior Court, Halifax County; Lyon, Judge.

Action by J. G. Elmore against the Atlantic Coast Line Railroad Company. Judgment for plaintiff and defendant appeals. Error in part.

Punitive damages recoverable, where words actionable per se and no mitigating circumstances set up.

The plaintiff, who had been an employee for 29 years of defendant company as flagman, baggage master, freight conductor, and finally as a passenger conductor, brought this suit against defendant company for slander.

The first cause of action is as follows:

"That on or about the 2d day of October, 1923, the defendant company, through C. M. Cobb, its superintendent, unlawfully and maliciously said and published of and concerning the plaintiff in the presence of one C. M. Starke and others the following false and defamatory matters in substance, to wit: That the said plaintiff did in many instances, while acting as passenger conductor for defendant as aforesaid take up tickets on his train and not punch and report said tickets to the company as it was his duty to do, but took said tickets unpunched and in collusion with the agent at Norfolk, Va., resold them, and appropriated the proceeds or a part thereof, to his own use."

The second cause of action is as follows:

"That on or about the 2d day of October, 1923, the defendant through C. M. Cobb, its superintendent, unlawfully, falsely, and maliciously uttered and published of and concerning the plaintiff, in the presence of one C. M. Starke, and others, the following false and defamatory slander in substance, to wit: That the plaintiff had theretofore, while acting as passenger conductor of the defendant company, taken cash fares received by him on the train from passengers and appropriated said cash fares to his own use, instead of turning the same into the railroad company as was his duty so to do."

The defendant, answering the first cause of action, says:

"The allegation of the complaint is not true and is denied. But, if defendant company's agent and employee, C. M. Cobb, had said the things which are imputed to him, as having been said to C. M. Starke, and others, which is denied, the same are privileged communications for that the said C. M. Cobb was and is superintendent of the Norfolk district of defendant company, and, as such superintendent, had an interest or a duty in the matter under discussion, or alleged to have been communicated, for that it came within the duties delegated to and to be performed by his office and position. And said C. M. Starke was at the time the ticket agent of defendant company at Norfolk, Va., and is the person or individual referred to by plaintiff in his complaint as being in collusion with plaintiff. As such person, individual, and agent, the said Starke has a very vital corresponding interest or duty in and about the matter alleged to have been communicated. The alleged statement or communication, if made, was in protection of said Cobb's interest or in the performance of his official duty as superintendent aforesaid."

The defendant's answer to the second cause of action is the same as the answer to the first cause.

The issues submitted to the jury and their answers thereto were as follows:

"(1) Did the defendant maliciously speak of and concerning the plaintiff in substance, the words alleged in the first cause of action in the complaint? Answer: Yes.

(2) If so, what damage is the plaintiff entitled to recover? Answer: $10,000.

(3) Did the defendant speak of and concerning the plaintiff in substance the words alleged in the second cause of action set out in the complaint? Answer: Yes.

(4) If so, what damage is the plaintiff entitled to recover? Answer: $10,000."

C. M. Starke, for plaintiff, testified, in part, as follows:

"My name is C. M. Starke; I live in Norfolk, and have lived there six years. Prior to October 2, 1923, I was ticket agent for the Atlantic Coast Line Railroad Company at York Street station, Norfolk. I know C. M. Cobb, who at the time was superintendent of the Norfolk division of the Atlantic Coast Line Railroad Company, and my office was in his jurisdiction. On the 2d day of October I was notified by Mr. Cobb to report to his office at 9 o'clock. He told me Captain Elmore was to be let out of the service at Rocky Mount, and he said it was on account of Captain Elmore collecting tickets and not punching them and turning them in, but that he put them back to be resold by me and we divided the proceeds. Captain Elmore never returned any unpunched tickets to me to be resold; I never divided any proceeds from such tickets being resold. He told me Captain Elmore had been called up to his office twice before that about cash fares; that the last time he was up there he had told him his cash fares did not come up to and correspond with the other conductor's; that, soon after he had this talk with him and after that other time, that the cash fares commenced to pick up and he supposed that was the time he commenced taking his tickets up. In respect to this conversation Mr. Cobb again talked to me--about the 15th, I think it was. He called me up over the telephone and said he wanted to see me and asked me to come to his office. I went to his office, and he told me he had said something about Captain Elmore in our other conversation, and asked me if I had said anything about it to Captain Elmore, and I said 'No,' and he said he was glad of that, because he thought maybe I said something about it, and he was glad because he had been 'shooting off his lip' or his mouth or something. I had no conversation with him at a subsequent time."

The plaintiff then offered evidence of about 75 witnesses from all over Eastern North Carolina and parts of Virginia as to his good character, and also several witnesses as to the good character of the witness Starke, and rested his case.

C. M. Cobb, for defendant, testified, in part:

"I was born near Tarboro, N. C., at Mildred; am 57 years old have lived part of the time at Mildred, Tarboro, and Norfolk; have been working for the Coast Line Railroad nearly 33 years; have held the position of flagman, baggage master, freight conductor, conductor on passenger trains, train master and superintendent. When I was train master I lived in Tarboro; when promoted to superintendent of the division I lived in Norfolk. As superintendent my duties involved the investigation of matters such as we have been discussing here. I first had knowledge that Captain Elmore was under investigation when I was notified to investigate Agent Starke the day before, October 1, 1923. The police department did the investigating. W. W. Morrison was chief of that department. I had no knowledge whatever that the investigation was being made. I had nothing whatever to do with the initiation of the investigation. I received my knowledge from Mr. W. H. Newell, general superintendent, that the investigation of Elmore was being made. He called me to his office on October 1st, and showed me a bunch of affidavits, giving me the duplicates of those he had, and told me--my first knowledge was when the superintendent called me to his office, and he showed me these various affidavits, giving me duplicates, and he keeping the originals, which brought out the fact of the irregularity in handling of tickets. That was the first day of October, 1923. I took those affidavits home. They came from the police department, Mr. Morrison's department. I had instructions to take these affidavits and have Ticket Agent Starke in Norfolk to come to my office and go over the same with him. These affidavits were 16 in number. As these affidavits had reference to irregularities between C. M. Starke and Conductor Elmore, I handled according to instructions. I had Starke to come to my office on the morning of the 2d, at 9 o'clock, went over the affidavits with him in detail, the affidavits which I had, showing what each man said he had done. (The court admitted the above testimony of Cobb to show good faith and want of malice). * * * Elmore was involved in various affidavits showing that tickets were bought from Starke, used on Elmore's train, and were brought back to Starke, and he sold them again. Some tickets showed they had been bought twice. I don't know as I could tell you exactly how many had been returned by other conductors. I don't remember, but the affidavits will show. These tickets were all numbered. When the conductor took up these tickets he was required to punch them and surrender them. Each conductor has an individual punch, showing the different marks, and from it you can tell which conductor made the punch. * * * No reference was had to cash fares. Captain Elmore's name was not mentioned at all, except when I asked if any one other than he and Captain Elmore had been involved with respect to the irregular handling of tickets. No other reference was made to Captain Elmore in that conversation. I did not say anything to Mr. Starke about the cash fares. I was present when an investigation was held in the office of Mr. Newell, at Captain Elmore's request. * * * I had a second conversation with Starke 10 or 15 days later. I called Starke up that morning and asked if he would come down to the office, as I wanted to see him and have a talk with him. He came in and wanted to know what I wanted. I said, 'I want to know if you will sign a statement in reference to the things you told me about the other day.' He remarked, 'I haven't told you anything.' He seemed mad and in a very different attitude altogether from the first time. There was nothing about my 'shooting my mouth off.' Nothing of the kind occurred because of...