Gelhaus v. Eastern Air Lines, Inc.

• Decision Date: 10 April 1952
• Docket Number: No. 13358.,13358.
• Citation: 194 F.2d 774
• Parties: GELHAUS v. EASTERN AIR LINES, Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

194 F.2d 774 (1952)

GELHAUS v. EASTERN AIR LINES, Inc.

No. 13358.

United States Court of Appeals, Fifth Circuit.

March 6, 1952.

Rehearing Denied April 10, 1952.

Benjamin E. Carey, Miami, Fla., for appellant.

Charles A. Moye, Jr., Atlanta, Ga., Charles M. Moon, Miami, Fla., E. Smythe Gambrell, Atlanta, Ga., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and STRUM, Circuit Judges.

HUTCHESON, Chief Judge.

Arising out of the discharge dealt with in No. 13357 on the docket of this court, 194 F.2d 772, this case presents entirely different questions. Alleging the wrongful discharge as the occasion of the matters complained of, the suit was brought to recover damages on account of slanderous remarks and a trespass against plaintiff's person and property, allegedly committed by the defendant at the time of, and in connection with, the discharge.

Disposed of below, as the other case was, by summary judgment, the judgment here is attacked, as was the judgment there, on the ground that there were genuine issues as to material facts and that the moving party was, therefore, not entitled to judgment as matter of law.

Plaintiff's claim briefly stated was: that, at about 3 P.M., on December 5, 1949, while he was engaged in the performance of his duties, the defendant, through one Ray, wilfully, ruthlessly, and wrongfully discharged him; that in discharging him, Ray called the plaintiff to his office, and, within the hearing of several employees, proceeded to discharge him, making a false and malicious statement that plaintiff did not know his work; that Ray immediately left the office and started down one of the corridors and in a loud tone of voice stated to the personnel director in the hearing of many employees, "I just fired the hell out of Gelhaus"; that thereafter, while plaintiff was in the snack bar area on the premises of defendant conversing with one of the defendant's executives, Ray interrupted the conversation and in loud tone of voice, within the hearing of many of the employees, stated to plaintiff, "Are you still here? You are fired, and when I fired you, I meant you were fired. If you are not off the place by five o'clock, I am going to have the guards throw you off, and I will throw your personal belongings out in the middle of 36th Street"; that the defendant maintains armed guards at each entrance to the premises, and the said Ray had instructed the guards to expel plaintiff therefrom; that because of the threats, plaintiff left the premises without time to settle his office affairs and to gather his belongings; and that plaintiff was, by all of the matters alleged, subjected to great humiliation, indignity, and shame, and was made to suffer great mental and physical pain; and plaintiff claims compensatory, as well as punitive damages.

Defendant filed a motion to dismiss the complaint and a motion for summary judgment, basing the motion on the complaint, the motion to dismiss, and depositions filed or to be filed prior to the hearing.

Depositions in discovery proceedings were taken in this case and in the companion case, No. 13,357, and these depositions were used in the summary judgment proceeding.

At the hearing, it was established without dispute as to the claim of slander that the alleged slanderous words, "Plaintiff did not know his work and that the employees were unable to get along with him", were made to plaintiff in the office of Ray, after Ray had requested his resignation and he had refused to give it, and they were made for the purpose of giving him a reason for his discharge.

It further appeared there without dispute that there was no one in the office but Ray and the plaintiff, with Ray's secretary in an adjoining office some ten feet away with an open door between them. She testified, and no one contradicted her, that the only thing she heard was Mr. Ray's statement that the plaintiff was discharged, and that she did not hear the statements of which plaintiff complains. Plaintiff was not able to, and did not, dispute her testimony except as it may be regarded as disputed by testimony of the proximity of the secretary's office to Ray's, and that Ray spoke in a loud voice and the partitions between the offices were not soundproof.

As to the case on assault, it was established by the undisputed evidence that Ray did not attack or attempt to attack or use force upon the plaintiff, and neither did any of the guards. It was also established that plaintiff's property was not touched or thrown off the premises.

In this state of the evidence, the defendant insisted below, and insists here, that there was no issue of fact to be tried: (1) that the evidence did not show the prime essential of an actionable slander, a publication of the words to others; (2) that if there was a publication, that is if persons not expected to hear the statement did hear it, the publication was only accidental and unintentional; and (3) that the statement was privileged in that Ray had the right to make the statement in giving his grounds for discharge unless he made the statement in actual malice, and that was not shown. On the action for trespass to person or property, the defendant insisted that no trespass was shown, there being only...