International & G. N. Ry. Co. v. Edmundson

• Decision Date: 08 March 1916
• Docket Number: (No. 5598.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 185 S.W. 402
• Parties: INTERNATIONAL & G. N. RY. CO. v. EDMUNDSON.
• Court: Texas Court of Appeals

185 S.W. 402

INTERNATIONAL & G. N. RY. CO. v. EDMUNDSON.

(No. 5598.)^*

Court of Civil Appeals of Texas. San Antonio.

March 8, 1916.

Rehearing Denied April 26, 1916.

Appeal from District Court, Bexar County; W. F. Ezell, Judge.

Action by O. O. Edmundson against the International & Great Northern Railway Company and another. Judgment for plaintiff, and defendant named appeals. Affirmed.

Wilson, Dabney & King, of Houston, and F. C. Davis, J. M. Eskridge, and Cobbs, Eskridge & Cobbs, all of San Antonio, for appellant. Ernest Fellbaum, Claud J. Carter, Perry J. Lewis, Champe G. Carter, Randolph L. Carter, and H. C. Carter, all of San Antonio, for appellee.

CARL, J.

Appellee, Edmundson, sued T. J. Freeman, receiver of the International & Great Northern Railroad Company, and the International & Great Northern Railway Company, successor in ownership to the properties of the first-named railroad company, for damages on account of an alleged libelous letter written by one H. Martin, superintendent of the railroad under Freeman, receiver, to T. N. Edgell, superintendent of the Pacific Express Company, by which last-named company Edmundson was employed. Appellee was employed by the express company as express messenger, and he also handled the baggage of the railroad company; and, while he was employed by the express company and paid by it, he performed a joint service for the express and railroad companies, and the railroad company repaid to the express company a part of his salary. While so employed, a negro detective, one Arthur Parrish, working for the George A. Fields Detective Agency of St. Louis, Mo., sent in a report on July 26, 1910, to D. P. Peterson, an officer of the detective agency at St. Louis, in which it was charged that Edmundson had permitted Parrish to ride on baggage car No. 30, International & Great Northern train No. 6 on that date after Parrish had told appellee he had paid the porter. When this report was made, the following correspondence took place, as a result of which Edmundson was discharged from the express company's service, and which is made the basis for this suit for libel:

"International & Great Northern Railroad Company.

"H. Martin, Superintendent.

                         "Palestine, Texas, Oct. 22, 1910
                

"Mr. T. N. Edgell, Superintendent Pacific Express Co., Dallas, Texas — Dear Sir: Will you please relieve joint express and baggageman, W. V. Butrell, from service on this line, on account of carrying passenger in baggage car on train 9 July 21, and relieve O. O. Edmundson [meaning plaintiff] from joint service on account of carrying passenger in baggage car on No. 6, arriving Palestine July 26th.

"Please favor me with your reply.

                   "Yours truly,   [Signed] H. Martin."
                

"The Pacific Express Company.

"Superintendent's Office, Texas Division.

"T. N. Edgell, Superintendent.

                      "Dallas, Texas, November 15, 1910
                

"Mr. O. O. Edmundson, c/o Y. M. C. A., San Antonio, Texas — Dear Sir: This is to acknowledge receipt of your letter of November 14th. You were relieved from the service because you carried a man in your car without authority.

                   "Yours truly
                   "[Signed]  T. M. Edgell, Superintendent."
                

"The Pacific Express Company.

"Superintendent's Office, Texas Division.

"T. N. Edgell, Superintendent.

                      "Dallas, Texas, December 20, 1910
                

"Mr. O. O. Edmundson, c/o Pacific Express Co., San Antonio, Texas — Dear Sir: Referring to your letter of December 15th, I inclose you a copy of a letter written me by H. Martin, superintendent of the I. & G. N. Railroad, on October 22d.

                   "Yours very truly
                   "[Signed]  T. N. Edgell, Superintendent."
                

"The Pacific Express Company.

"Superintendent's Office, Texas Division.

"T. N. Edgell, Superintendent.

                       "Dallas, Texas, January 17, 1911.
                

"Mr. O. O. Edmundson, San Antonio, Texas — Dear Sir: This is to acknowledge receipt of your letter of January 14th, and, as I have advised you, you were relieved from the service of this company because it was reported that you carried a man in your car without authority, which is a violation of the rules of the railway as well as this company.

                    "Yours truly,
                    "[Signed]  T. N. Edgell, Superintendent."
                

When Superintendent Edgell, of the express company, received Martin's letter, he communicated the same to Beatty, who was immediately in charge of such employés as appellee, and directed his discharge, which was forthwith carried out by Beatty.

It was alleged that the carrying of a passenger in a baggage car was a serious breach of discipline and a serious charge against the messenger's character for honesty and fidelity to duty, it being equivalent to saying that he had permitted such passenger to ride there for pay, which the messenger retained, and that express companies and railway companies, as well as other large industrial concerns, operated under a system whereby a man was required to furnish a certificate as to his last employment before he would be given work with a new concern, and, if that report were bad, he could not obtain employment from any of the companies or industrial enterprises operating under said system, and that all such concerns for which appellee was suited by training to work did operate under that system, which put employment for which he was suited beyond his reach, on account of the bad report which would be given him.

The appellant answered and interposed various exceptions and pleas, but we think we need only confine ourselves largely to the two controlling questions in the case, that is to say: (1) Whether the letter written by Martin was a privileged communication, and, if so, was there express malice shown; (2) Whether this cause of action comes within the terms of what is known as the 1. & G. N. Bill (Rev. Stats. 1911, arts. 6624 and 6625). The portion of article 6624 applicable to this cause is, when a railway shall be sold, the purchaser shall take the same "charged with and subject to the payment of all subsisting liabilities and claims for death and personal injuries sustained in the operation of the railroad by the sold-out company and by any receiver thereof." Article 6625, giving new railway corporations the right to buy and take over such sold-out railways, carries with it the same proviso as that above quoted.

Let us then consider first whether this communication is privileged; and in following this order of investigation we are not attempting to follow that set forth in the briefs. If this letter comes within the class of privileged communications, it would fall under that head called a qualified privilege, unless it was done with malice; that is, to "communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to a person having a corresponding interest or duty; and the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation." Newell on Slander and Libel, § 493. This letter was written by Martin, of the railroad company, to Edgell, who held a similar position with the express company, and not only one, but both, of them, were interested in Edmundson's employment. There is no doubt in our minds that the communication was privileged.

While malice is an essential ingredient of libel, there are different ways of showing this element. It may be proven directly, or may be inferred from the character of the libelous document, or may be proven by circumstantial evidence. Indeed, direct positive proof is rarely obtainable. But, where the subject-matter of the libel is privileged, express malice must be shown before the libel is actionable.

In Behee v. Railway Co., 71 Tex. 428, 9 S. W. 449, Judge Collard said:

"Malice is a necessary ingredient of libel. When a defamatory and false publication is made by one person of another, malice will be imputed to the act; but, where the publication is privileged and is believed to be true, the prima facie case of libel so made is deemed to have been fully met; and then to sustain the action malice must be shown to exist by other evidence as by the style or manner of the writing or by extraneous facts. These principles were clearly announced by Associate Justice Roberts in the well considered case of Holt v. Parsons, 23 Tex. 21 ."

Further on, in the same case, it is said:

"Such questions of malice should be left to the jury. If a privileged communication, though false, is believed to be true by the publisher, and the language used to express the communication is not unnecessarily disparaging, and it is not shown by extraneous evidence to have been actuated by a malicious intent to injure, there can be no recovery; but if one whose duty or privilege it is to give information...