Interstate Electric Co. v. Daniel
| Decision Date | 09 November 1933 |
| Docket Number | 6 Div. 340. |
| Parties | INTERSTATE ELECTRIC CO. et al. v. DANIEL. |
| Court | Alabama Supreme Court |
Rehearing Denied Dec. 21, 1933.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Action for libel by L. A. Daniel against the Interstate Electric Company and Percival Stern. From a judgment for plaintiff defendants appeal.
Reversed and remanded.
Cabaniss & Johnston, of Birmingham, for appellants.
London Yancey & Brower and Jim C. Smith, all of Birmingham, for appellee.
This is a joint appeal by the defendants from a judgment entered on the verdict of a jury awarding the plaintiff $50,000 as damages for the publication of alleged libelous matters in a proof of loss filed by the appellant Interstate Electric Company with the Fidelity & Deposit Company of Maryland under a bond through which said Fidelity & Deposit Company for consideration, insured the fidelity of the plaintiff as secretary and treasurer of said Interstate Electric Company, after the amount of the award on the hearing of the motion for a new trial had been reduced by the court, with the consent of the plaintiff, to $10,000, and the motion overruled.
After the reduction of the award, the defendants renewed their motion for a new trial, and this was likewise overruled.
The defendant Stern, at the time of the filing of the proof of loss, was the president of the Interstate Electric Company, and Crow was its secretary and treasurer, succeeding the plaintiff in this position.
The case was submitted here on assignments of error in which all the appellants join without an order of the court allowing a severance, and under the uniform rulings, only assignments of error affecting all the appellants will be considered. Bank of Cottonwood et al. v. Hood (Ala. Sup.) 149 So. 676.
The proof of loss is in the following language:
And appended thereto is an affidavit made by Crow, as secretary and treasurer of the defendant corporation, to the effect, "that the above statement is true and correct in every respect and that the moneys listed therein were collected or received by the said L. A. Daniel on the dates and in the respective amounts shown, and that the proceeds of same and/or the proceeds of the goods at their cost value, as set forth in said statement, have not been paid over or satisfied in any way whatever to the said Interstate Electric Company, but have been misappropriated by the said L. A. Daniel to his own use and benefit with the intent to fraudulently deprive the said Interstate Electric Company of same," etc.
The defendants interposed the plea of the general issue with leave to give in evidence any matter, which, if specially pleaded, would be a defense.
The evidence shows that the defendant Interstate Electric Company, during the years 1926, 1927, and 1928, engaged in the business of selling electrical equipment and fixtures in the city of Birmingham; that the plaintiff, Daniel, was its secretary and treasurer, and had supervision and control of said business; that one Lawrence Newberger, who was a nominal vice president of the corporation and was at the head of one of the departments of said business, countersigned checks issued by said plaintiff, but that plaintiff was the person in charge-in the absence of the defendant Stern who was the president and who resided in the city of New Orleans, La.-and had authority to employ and discharge the employees of the corporation, supervise its books, control credit to its customers, and handle the moneys of the company. That to insure his fidelity in his said employment, plaintiff furnished to his employer a bond with the Fidelity & Deposit Company of Maryland as surety, insuring the employer against loss occurring while plaintiff was "performing the duties of his position, directly or by collusion with others, caused to the employer through any act of larceny, embezzlement, theft, forgery, misappropriation, wrongful abstraction, wilful misapplication, or any other act of fraud or dishonesty committed" by the plaintiff as such secretary and treasurer.
The evidence shows that the proof of loss was filed with the insurer by the defendant corporation on the advice of its attorney, after an investigation and full audit of the books of the corporation by its auditor, one Rasch, and the proof of loss was prepared by its said attorney based on information furnished by said Rasch, supplemented by a personal investigation by said attorney; was dictated to a stenographer in the attorney's office, transcribed on blanks furnished by the insurer in response to a request of the attorney accompanying preliminary notice of loss, and was delivered in the usual course of business to the insurer through the mails, and a copy thereof forwarded to the insurer's special agent at his request.
The evidence is without dispute, that in June, 1926, the plaintiff participated with one Whitehead in organizing and incorporating "The Electric Shop, Inc.," with authorized capital stock of $1,500, in Jefferson county; that one-half of the stock was subscribed for in the name of R. G. Daniel, plaintiff's son, who was just out of college, and who was without funds; that the other half was taken by Whitehead; that Whitehead paid for his stock by bills receivable and equipment; that it was agreed that Daniel "was to pay for his stock in the corporation by delivery of merchandise and fixtures to the corporation that would be useful and beneficial to the corporation in the business in which it was about to then engage"-the sale and installation of electrical equipment.
The evidence further shows that before participating in the organization of the Electric Shop the plaintiff consulted with Newberger; that merchandise was delivered from the place of business of the defendant Interstate Electric Company to said Electric Shop; that plaintiff and Newberger participated in the conduct of the business of said Electric Shop; that Newberger aided it in acquiring contracts; and that plaintiff advanced to it money to meet its obligations and collected money due it, some of which he deposited with "The Security Bank, North Birmingham" on account of "L. A. Daniel, Special."
The evidence further shows that the "Electric Shop, Inc.," for some months, was very active in the prosecution of the business of contracting for and installing electrical fixtures on various projects, and that it suffered losses; that when it became apparent that said business was not profitable, the plaintiff withdrew from the business, and the evidence further tended to show that merchandise furnished to said Electric Shop was charged on the books of the defendant corporation to Whitehead and other creditors of the Interstate Electric Company; and that said creditors denied their liability and refused to pay for merchandise so charged.
The plaintiff on cross-examination testified, inter alia ...
To continue reading
Request your trial
-
Butler v. Town of Argo
...decided by the court. O'Barr v. Feist, supra, Kenney v. Gurley, 208 Ala. 623, 627, 95 So. 34, 38 (1923); Interstate Electric Co. v. Daniel, 227 Ala. 609, 613, 151 So. 463, 466 (1933)." Walker v. Majors, 496 So.2d 726, 730 (Ala. This privilege has been extended to members of local legislativ......
-
Reynolds Metals Co. v. Mays
...1131, 101 S.Ct. 954, 67 L.Ed.2d 119 (1981); Willis v. Demopolis Nursing Home, Inc., 336 So.2d 1117 (Ala.1976); Interstate Electric Co. v. Daniel, 227 Ala. 609, 151 So. 463 (1933). Thus, the trial court improperly combined the two tests. Moreover, its instructions would have allowed the jury......
-
Walker v. Majors
...decided by the court. O'Barr v. Feist, supra, Kenney v. Gurley, 208 Ala. 623, 627, 95 So. 34, 38 (1923); Interstate Electric Co. v. Daniel, 227 Ala. 609, 613, 151 So. 463, 466 (1933). Finally, the issue of the relevancy of the communication is a matter for the determination of the court, an......
-
O'Barr v. Feist
...on which it was made, is a question of law to be decided by the court. Kenney v. Gurley, 208 Ala. 623, 95 So. 34; Interstate Electric Co. v. Daniel, 227 Ala. 609, 151 So. 463. Privileged communications are divided into two classes, namely, those which are absolutely privileged and those whi......