Illinois Cent. R. Co. v. Ely

• Decision Date: 08 February 1904
• Citation: 83 Miss. 519,35 So. 873
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY ET AL. v. GEORGE W. ELY

35 So. 873

83 Miss. 519

ILLINOIS CENTRAL RAILROAD COMPANY ET AL. v. GEORGE W. ELY

Supreme Court of Mississippi

February 8, 1904

FROM the circuit court of Tallahatchie county. HON. SAMUEL C COOK, Judge.

Ely appellee, was plaintiff in the court below; the railroad company was defendant there. From a judgment for $ 25,000 in plaintiff's favor defendant appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed and remanded.

Blewett Lee, for appellant.

I. (1) The language is not defamatory. It is immaterial that the defendants ought to have been satisfied with the plaintiff's work, if, in fact, they were not. Rodgers v. Kline, 56 Miss. 816; 6 Am. & Eng. Enc. Law (2d ed.) 464 (1898); 21 Am. & Eng. Enc. Law (1st ed.), 714, 715; Rossiter v. Cooper, 23 Vt. 522, 524 (1851); Spring v. Ansonia Clock Co., 24 Hun., 175, 176 (1881); Johnson v. Bindseil, 8 N. Y. Suppl., 485 486 (1890); Note in 54 Am. Rep., 711, 712, citing Tyler v. Ames, 6 Lans., 280; Hart v. Hart, 22 Barb., 606; 24 Am. & Eng. Enc. Law (2d ed.), 1234 (1903); Frary v. American Rubber Co., 53 N.W. 1156 (Minn. 1893); Kochler v. Buhl, 54 N.W. 157, 158 (Mich. 1893); Allen v. Mutual Compress Co., 14 So. 362 (Ala., 1893); Bush v. Koll. 29 P. 919 (Colo., 1892). "Performance to the satisfaction of Promisor," 46 Central Law Journal, 360 (1898).

(2) Discommendatory words are not actionable per se unless defamatory. 18 Am. & Eng. Enc. Law (2d ed.), 916 (1901); Wallace v. Bennett, 1 Ab. N. Cas., 478 (N. Y., 1877); Kelly v. Partington, 5 B. & Ad., 645, 649 (1833); Sheahan v. Ahearne, L. R. 9 Ir., 412, 414 (1875); Terwilliger v. Wands, 17 N.Y. 54; 72 Am. Dec., 420, 423 (1858); Knight v. Blackford, 3 Mackey, 177; 51 Am. Rep., 772, 775 (1884); Reid v. Providence Journal Co., 20 R. I., 120, 121, 123, 124, 125; Ratzel v. N. Y. News Pub. Co., 67 App.Div. (N. Y.), 598, 600 (1902); Latimer v. I. C. R. R. Co., 25 So. 1038.

(3) Words imputing want of skill in a particular case are not actionable per se. 18 Am. & Eng. Enc. Law (2d ed.), 962; Rogers v. Kline, 56 Miss. 808, 817 (1879); Tobias v. Hartand, 4 Wend., 537, 540 (1830); Marlin Firearms Co. v. Shields, 171 N.Y. 384, 390 (1902), 59 L. R. A., 310, 313; Swan v. Tappan, 5 Cush. (Mass.), 104, 109 (1849); Dooling v. Budget Publishing Co., 144 Mass. 258, 259 (1887).

II. The plaintiff cannot maintain an action on account of acts which he himself procured to be done. 18 Am. & Eng. Enc. Law (2d ed.), 1018; King v. Waring, 5 Esp., 13, 15; Smith v. Wood, 3 Camp., 323; Rogers v. Clifton, 3 B. & P., 587, 591, 592 (1803); Irish-American Bank v. Bader, 59 Minn. 329, 330, 331 (1894); Schoepflin v. Coffey, 162 N.Y. 12, 20 (1900); Howland v. Blake Mfg. Co., 156 Mass. 543, 570 (1892).

III. There was no publication by the railroad company. Sylvis v. Miller, 96 Tenn. 94, 95 (1895); Wilcox v. Moon, 24 A. 244, 245 (Vt., 1892); Railroad Co. v. Delaney, 102 Tenn. 289, 294 (1899); Owen v. Ogilvie Publishing Co., 32 App.Div. (N. Y.), 465, 466 (1898); Landis v. Campbell, 79 Mo. 439, 440 (1883); Gardner v. Anderson, Fed. Cas. No. 5220; S. C., 22 Int. Rev. Rec., 41.

IV. The alleged publications were privileged and were not malicious. (1) A railroad company is under no obligation to give a "clearance" to its employes. C., C., C. & St. L. Ry. Co. v. Jenkins, 174 Ill. 398, 402 (1898). (2) A master is not bound to give a character to a servant. Carroll v. Bird, 3 Esp., 201, 202. (3) Express malice is necessary to overcome privilege. Railway Co. v. Brooks, 69 Miss. 168, 185 (1891). (4) The act was privileged. 18 Am. & Eng. Enc. Law (2d ed.), 1034; Bacon v. Mich. Cent. R. R. Co., 66 Mich. 166, 170 (1887); Missouri Pacific Ry. Co. v. Richmond, 73 Tex. 568; 15 Am. St. Rep., 794, 800 (1889); Hebner v. Great Northern Ry. Co., 78 Minn. 289, 291-2 (1899); Boyer v. Western Union Telegraph Co., 42 S.E. 246 (1903); Brown v. N. & W. Ry. Co., 42 S. E. Rep., 664 (Va., 1902). (5) No malice was proved. (6) The "clearance" stated the truth.

V. The damages were excessive. (1) No custom was proved. C., C., C. & St. L. Ry. Co. v. Jenkins, 174 Ill. 398, 407 (1898). (2) Defendants are not responsible for damages caused by the plaintiff's publication of the clearance. Railroad v. Delaney, 102 Tenn. 289 (1899). (3) The defendants are not liable for the plaintiff's failure to secure employment unless such failure was caused solely by the language of the clearance. Vickers v. Wilcocks, 8 East., 1, 4 (1806); Cramer v. Cullinane, 2 McArthur (D. C.), 197, 201 (1875); Hallock v. Miller, 2 Barb. (N. Y.), 630, 632 (1848). (4) The proof of special damages having failed, the action cannot be sustained. Hirshfield v. Fort Worth National Bank, 83 Tex. 452; 29 Am. St. Rec., 660, 666 (1892); Barnes v. Trundy, 31 Me. 321, 324 (1852); Fry v. McCord Bros., 95 Tenn. 678, 694 (1895); Railroad v. Delaney, 102 Tenn. , 289, 295 (1899); 18 Am. & Eng. Enc. Law, (2d ed.), 1085-6 1088 (1901). (5) The recovery is limited in any event to the amount of special damages proved. Herrick v. Lapham, 10 Johnson (N.Y.), 281, 283 (1813); Giacona & Son v. Bradstreet Co., 48 La Ann., 1191, 1193 (1896); Windisch-Muhlhauser Brewing Co. v. Bacon (Ky., 1899), 53 S.W. 520. (6) The defendants are not liable in this action for damages, if any, arising from plaintiff's discharge. Henry v. Pittsburg etc. R. Co., 139 Pa. St., 289, 297 (1890). (7) Considered as giving exemplary damages the verdict should be set aside on the ground of its excessive character. Burkett v. Lanata, 15 La. Ann., 337, 339 (1860); McCarthy v. Niskern, 22 Minn. 90, 92 (1875); Houston & Texas Central R. R. Co. v. Nichols (Tex.), 9 Am. & Eng. R. R. Cas., 361, 364 (1882); Mobile & Montgomery R. R. Co. v. Ashcraft, 48 Ala. 33; Louisville, etc., R. R. Co. v. Minogue, 90 Ky. 369, 373, 375 (1890); Peterson v. Western Union Telegraph Co., 75 Minn. 368, 375-6 (1899); 7 Law Notes 90; Pittsburg, etc., R. Co. v. Donahue, 70 Pa. St., 179. (8) Case where $ 25,000 allowed. Young v. Fox, 26 A.D. 261 (N. Y. 1898).

VI. A new trial should be granted on the ground of the verdict against Sheehan, the roadmaster, being swelled by evidence as to the wealth of the railroad company. Clark v. Newsam, 1 Exc., 131, 139 (1847); Pardridge v. Brady, 7 Ill. App., 639, 644 (1880); McCarthy v. De Armit, 99 Pa. St., 63, 72 (1881); Lombard v. Batchelder, 58 Vt. 558, 560 (1886). (1) For this reason a new trial should be allowed. Washington Gas Light Co. v. Lansden, 172 U.S. 534, 551, 552, 555 (1898); Albright v. McTighe, 49 F. 817, 823 (1892). (2) The defendants in this case are not jointly liable. Warax v. C., N. O. & T. P. Ry. Co., 72 F. 637, 641, et seq (1896), and cases cited. Helms v. No. Pac. Ry. Co. et al., 120 F. 389 (1903); Herman Berghoff Brewing Co. v. Przbylski, 82 Ill.App. 361, 367, et seq. (1889), and cases cited. (3) Sheahan is responsible to the railroad company for all damages recovered in this action. 20 Am. & Eng. Enc. Law (2d ed.), 51 (1902); Palmer v. Wick & Pulkneytown Steam Shipping Co. (1894), A. C., 318.

VII. Jarmon should have been allowed to testify in rebuttal. Ferguson v. Brown, 75 Miss. 214, 224 (1897), 21 So. 603, 605; Timberlake v. Thayer, 76 Miss. 83 (1898), 23 So. 707.

VIII. The evidence of Jarmon's alleged message to Ely by Clogston was not admissible. (1) It was not admissible to contradict Jarmon. Williams v. State, 73 Miss. 820, 824, 830 (1896); Garner v. State, 76 Miss. 515, 521 (1898). (2) The injurious effect of this evidence was not cured by the court's charge. Chism v. The State, 70 Miss. 754; Penfield v. Carpender, 13 Johnson (N. Y.), 350 (1816); Erben v. Lorillard, 19 N.Y. 299, 302 (1859); Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 99, 108 (1868); Sinker v. Diggins, 76 Mich. 557, 563; Coleman v. People, 58 N.Y. 555, 561 (1874); City of Chicago v. Wright & Lawther Oil and Lead Mfg. Co., 14 Ill.App. 119, 124 (1883); State v. Mix, 15 Mo. 153, 160 (1851); State v. Meader, 54 Vt. 126, 130 (1881); Castleman & Griffin, 13 Wis. 535, 539 (1861).

IX. The court should render judgment in favor of the defendant, or at least grant a new trial.

Mayes & Longstreet, and J. M. Dickinson, on the same side.

Dinkins & Caldwell, for appellee.

The publication of the libel consisted in its dictation by Sheehan, roadmaster, to a stenographer in his office, by whom it was written on a type machine, and after being signed by Sheehan its transmission by the hands of the clerk to the office of Philbrick, superintendent, by whom it was signed and who had one of the clerks in his office to make an impression copy of it in a book kept for that purpose, which book, it was admitted, was open to the inspection of the employes of the company. After being signed by Philbrick it was returned by the hands of a clerk to the roadmaster's office, where a copy of it was filed away as a record of that office, and from there sent to Jarmon, road supervisor, who, after inspecting it, placed it in an envelope which he sealed and directed to Ely and placed it in a box or pigeon hole in the depot at Sardis, from which it was taken by the hands of a porter and delivered to Ely's wife who opened it and showed it to Clogston before it was seen by Ely.

The admission was made that the impression book in the superintendent's office was open to the inspection of the employes of the company of which it was shown there was some 30,000. It was not limited as it should have been to such officers of the company as had the employment of servants in the various branches of its service, which would have brought it within the privilege of the defendant company had the statement been true, or been made in perfect good faith.

The publication was complete before the clearance finally left the office of the roadmaster, where it was first dictated to a stenographer and by him...