Jacobs v. Transcontinental & Western Air

• Decision Date: 13 December 1948
• Docket Number: 40749
• Citation: 216 S.W.2d 523,358 Mo. 674
• Parties: W. D. Jacobs, Respondent, v. Transcontinental & Western Air, Inc., a Corporation, and William Maxfield, Appellants
• Court: Missouri Supreme Court

216 S.W.2d 523

358 Mo. 674

W. D. Jacobs, Respondent, v. Transcontinental & Western Air, Inc., a Corporation, and William Maxfield, Appellants

No. 40749

Supreme Court of Missouri

December 13, 1948

Rehearing Denied January 7, 1949.

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Opinion of Kansas City Court of Appeals Quashed and judgment reversed.

Harry L. West, Harold L. Warner, Jr., Garrett & Ruark and Walter A. Raymond for appellants.

The court erred in refusing to sustain the separate motions of defendants for directed verdicts at the close of all the evidence as there was no substantial evidence of libel to be submitted to the jury. Lee v. W.E. Fuetterer Battery & Supplies Co., 323 Mo. 1204, 23 S.W.2d 45; Cook v Pulitzer Pub. Co., 241 Mo. 326, 145 S.W. 480; Laws 1943 p. 353, sec. 112, Sec. 847.112, R.S. Mo. 1939, Ann.

Harry C. Clark and Louis W. Krings for respondent.

The communication was libelous per se. Sec. 4758, R.S. 1939; Mo. R.S.A., Secs. 4758, 4760, 4761; Conrad v. Allis-Chalmers Co., 228 Mo.App. 817, 73 S.W.2d 438; Chambers v. Natl. Battery Co., 34 F.Supp. 834; Eby v. Wilson, 315 Mo. 1214, 289 S.W. 639; Seested v. Post Printing Co., 326 Mo. 559, 31 S.W.2d 1045; Minter v. Bradstreet Co., 73 S.W. 668; Heitzeburg v. VonHoffmann Press, 100 S.W.2d 307.

OPINION

Douglas, P.J.

Plaintiff recovered judgment for $ 500 actual and $ 2,500 punitive damages in an action for libel. Defendants appealed to the Kansas City Court of Appeals. That court affirmed the judgment, and transferred the case here because its decision conflicted with a ruling of the Springfield Court of Appeals. 205 S.W.2d 887.

We consider a case transferred from a court of appeals the same as an original appeal. Art. V, Sec. 10, Constitution 1945. We find the judgment should be reversed for the reason the words complained of are not libelous.

Plaintiff entered the employment of the defendant T.W.A. as a polisher of airplanes. He described his duties in this manner: "I took a cleaning compound and polished the dust and dirt off of them so they shine, and I kept that up all day." He was paid 40 cents an hour for a 48 hour week. Then he was promoted to be an airship's cleaner at 42 cents an hour. He did this work for almost a year until he was promoted to be an apprentice mechanic at 44 cents an hour. As an apprentice mechanic he cleaned airplane parts that came off old airplanes. He would take the parts to the steam room where he would steam them. Then with a cleaning compound he would remove all the smudge so the parts could be repaired and used again. This work took him all over the plant.

Plaintiff, while working as a cleaner, tried to join the Airline Mechanics Association, the union which represented most of the employees, but was refused admission by the association because he was not eligible. Those who worked as polishers, cleaners, and as less than Class "C" mechanics were not admitted to membership in the association. After the members of the association had received a wage increase, the polishers and cleaners became dissatisfied. This group, including plaintiff, took steps to find a union to represent them. Plaintiff and others solicited memberships for a CIO union which was to be chartered at defendant's plant. They passed out membership applications and literature and solicited members. On August 19th, plaintiff joined the CIO union, and on August 20th, he was discharged from his job. The following day he received his final pay check and a letter of dismissal officially terminating his services. The letter was signed by defendant Maxfield, a T.W.A. official.

Within two or three days after his discharge from T.W.A., plaintiff was employed at the Cudahy packing house in the cleaning department. He received 70 cents an hour which was increased to 75 cents, then to 78 1/2 cents. He worked there until May, 1944, when he quit. Then he worked for the Kansas City Structural Steel Company for 86 cents an hour. From there he went to work for the Commonwealth Aircraft Corporation for 85 cents an hour. Then he went back to farming in Oklahoma.

Copies of the letter of dismissal about which plaintiff complains were sent as interoffice correspondence to two employees of T.W.A., and a copy was also sent to the association. The letter was as follows:

"Interoffice Correspondence

"Transcontinental & Western Air, Inc.

"To: Mr. W. D. Jacobs

Sent From: Kansas City

"C" Apprentice

"At: Clock No. 312,

Kansas City,

Date: August 21,

1941

"Your File No.:

Our File No:

"Subject: Termination of Services

"It has been necessary to terminate your services effective 4:00 P.M., August 20, 1941.

"This action was taken after considering and investigating reports of Maintenance Department Supervisory Personnel to the effect that you have, during your working hours, been neglecting your assigned duties and causing a loss of efficiency on the part of other employees by unnecessary loitering in the hallway and in the hangar.

"We regret that it has been necessary to take this action but it is necessary that all T.W.A. employees attend to their assigned duties in a spirit of willingness and cooperation.

"Before receiving your final pay check, it will be necessary to turn in all T.W.A. equipment in your possession and receive a Maintenance Department Clearance Sheet from Mr. Putnam.

(Signed) Wm. Maxfield

System Superintendent

of Maintenance."

WM:w

cc: G. A. Putnam

L. M. Reed

A.M.A."

Plaintiff states in his petition that the statements in the letter charging him with neglecting his duties, causing loss of efficiency by the other employees, and failing to cooperate were false. He asserts as his round for recovery: "That said words in said letter were libelous and in defamation of plaintiff's skill, capacity and fitness to perform and discharge his duties as polisher and that said language directly tended to prejudice plaintiff in his trade, business and employment by imputing to him a want of knowledge, skill, capacity and fitness to perform and discharge the duties of his job and were therefore actionable per se." Plaintiff further alleges in his petition that as a result of the publication of the letter plaintiff's reputation has been injured and prejudiced in the pursuit of his trade, business and employment and that he will be unable to secure gainful employment as a mechanic in his community.

The initial question for decision is whether the words of the letter are libelous on their face so that the mere use of the words without more is sufficient to sustain an action for damages, that is, whether the words are actionable per se. If the words are not actionable per se, defendants' motions for directed verdict should have been sustained because plaintiff has pleaded no extrinsic facts in order to show a libelous meaning of the words used so as to make them actionable. The question whether the letter was libelous was not discussed by the Court of Appeals but has been preserved for appellate review.

Plaintiff bases his action upon injury to him in his trade, business and employment caused by the libelous words. He does not charge that he was exposed "to public hatred, contempt or ridicule" or was deprived "of the benefits of public confidence and social intercourse," the statutory definition of libel which is punishable as an offense. Sec. 4758, R.S. 1939, RSA.

False words tending to injure a person in his profession, trade or employment are ordinarily actionable, and sustain a recovery of money damages. We have expressed the rule in these words: "The publication of false statements or language, whether written or oral, which directly tend to prejudice or injure a person in his profession, trade, business, or employment, by imputing to him a want of knowledge, skill, capacity or fitness to preform or discharge the duties thereof, is actionable per se." Heitzeberg v. Von Hoffmann Press, 340 Mo. 265, 100 S.W.2d 307, 309. In a much earlier case we pointed out that words to be actionable per se must be such, if true, as would disqualify a person or render him less fit properly to fulfill the duties incident to the special character he has assumed. Words to be actionable as disparaging a person in his calling must touch him in his office, profession or trade. They must impeach either his skill or knowledge, or his official or professional conduct. We said that every false charge is not libelous but must come within the definition. Legg v. Dunleavy, 80 Mo. 558. It is stated in the Restatement of Torts § 573 that for defamation of a person in his trade the disparaging words to be actionable per se must affect the plaintiff in some way which is peculiarly harmful to one engaged in his trade. "Disparagement of a general character, equally discreditable to all persons, is not enough unless the particular quality disparaged is of such a character that it is peculiarly valuable in the plaintiff's business or profession."

A writing claimed to be libelous must be interpreted from its four corners. Hylsky v. Globe Democrat, 348 Mo. 83, 152 S.W.2d 119; Kleinschmidt v. Bell, 353 Mo. 516, 183 S.W.2d 87. It must be given its ordinary meaning in the plain and popular sense. Words claimed to be libelous "will be construed fairly by their natural import, according to the ideas they were calculated and intended to convey to those to whom they were addressed, and pinned down to some one commonly accepted meaning, one generally understood." Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S.W. 1143.

Coming now to the facts of this case, we may first observe that this is a situation where plaintiff has not lost his position because of the libelous statements of some third person. He lost his position because his...