James v. Haymes

• Decision Date: 16 March 1933
• Citation: 168 S.E. 333
• Parties: JAMES . v. HAYMES.
• Court: Virginia Supreme Court

168 S.E. 333

JAMES .

v.HAYMES.

Supreme Court of Appeals of Virginia.

March 16, 1933.

Error to Circuit Court, Pittsylvania County.

Action by C. H. Hayraes against R. A. James, Jr. Verdict and judgment for plaintiff, and defendant brings error.

Judgment reversed, verdict set aside, and case remanded for a new trial.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

Harris, Harvey & Brown, of Danville, for plaintiff in error.

N. E. Clement, H. T. Clement, and C. R. Warren, all of Chatham, for defendant in error.

HUDGINS, Justice.

This is an action for libel brought by the plaintiff against R. A. James, Jr., owner and publisher of the Danville Register, a daily newspaper published in Danville, Va. The trial resulted in a verdict and judgment for the plaintiff in the sum of $4,500. This writ of error brings under review that judgment and the incidents of the trial.

The notice of motion, as finally amended contains a count of libel at common law and a count of insulting words under the statute (section 5781).

The defendant filed a demurrer to each count, on completion of the evidence made motion to strike, and, when the jury returned a verdict, moved the court to set it aside, on the ground that the publication was not libelous, nor would it support an action under tho statute of insulting words. The demurrer and motions were overruled. These rulings were made the basis of separate exceptions, but all involved the same point, and will be considered together.

The notice of motion alleged that the plaintiff, C. H. Haymes, an experienced contractor, in 1929 was awarded a contract by the state highway commission to rebuild a hard-surface road extending from the outskirts of Chatham to Bannister river, a part of route 14 and one of the main highways leading through Chatham to Danville; that this work was completed on or about the 30th day of April, 1930; that on February 11, 1930, Haymes was awarded another contract to rebuild a part of the same highway, but much nearer Danville; that about the same dates the Laramore Construction Company was awarded two contracts to rebuild parts of the same highway, beginning at the points where the Haymes construction stopped; and that on Sunday, June 15, 1930, while both companies were at work upon the last-named projects, the following false, defamatory statement appeared as an editorial in the Danville Register.

"Slow Work on the Chatham Road.

"The contractor on the Chatham road is doing such slow work that it seems hardly possiblo that he can complete the job in time to have the road ready for the tobacco season. The Chatham road was closed last year on account of the slow work of Contractor llaynes (Haymes) and it seems very unfair to the farmers who use the road and Danville business which loses when It is closed, that the same contractor should be allowed to impede the business of a whole community far more than is necessary, for two successive years.

"If, as it appears, the work on the Chatham road cannot be completed by the opening of the tobacco season, the thing to be done, it seems to the Register, is to make the best of a bad situation. This newspaper appeals to the Highway Commission to instruct the contractor to begin work only on sections of the road around which a short and convenient detour may be arranged, so that there will be as little interference as possible with the business of the community because of the dilatory tactics of a road contractor.

"The Register frankly does not understandwhy the contractor on the Chatham road has been permitted such an unreasonable length of time to complete the job on one of the most important State Highways, a delay that lias thoroughly tried the patience of citizens of Pittsylvania County and Danville. Sometimes the Highway Commission lets contracts on a long time basis in order to get the work done cheaper, but this was certainly not the case with the bidder on the Chatham road. Of course the contractor can do the job cheaper on this basis, and that is why the State has district engineers to supervise road construction, to see that the work is done according to specifications and as quickly as possible. On the Chatham road the contractor seems to be doing the job in his own time at least."

The defendant filed two pleas--one a plea of justification; the other a special plea alleging that the statement of facts in the editorial was made in good faith, believing the same to be true, without malice or ill will, and that it was a fair and honest comment on a matter of public concern, and that the publication of the same was privileged.

It appeared that while the C. H. Haymes and I^iramoro Construction Companies were building the road under the contracts awarded them in the year 1928, the highway commission caused a temporary road to be built for the purpose of detouring traffic around that part of the highway which was under construction by these companies; that this temporary detour was at times exceedingly bad, especially in wet weather, and caused the people using it considerable inconvenience and created much dissatisfaction. Haymes, under the terms of his 1929 contract, was obligated to complete bis project by November 1, 1929, but as a matter of fact traffic was not allowed over this part of the road until January 6, 1930. Haymes testified that he was not responsible for the delay in completing the work by November 1st, but that it was due to weather conditions and orders of the highway commission, and, while it had charged him with $10 a day for forty-one days' delay, a controversy was then pending before the highway commission as to whether or not he was responsible for any of the delay, and that in any event, when Lara-more completed his work, Haymes turned traffic over that part of the highway which he was constructing, and he was not solely responsible for more than eight days' detouring of traffic.

Haymes further testified that at no time after he was permitted by the highway commission to begin work on the 1930 project was he behind in his schedule. It was conceded that, while construction on plaintiffs project was not completed until September 13th, the road was oi»ened to traffic on September 2, 1930. Indeed, on June 25, 1930, the following article appeared in the Danville Register:

"Chatham Road to be Open in Sept.

"Work Will Be Completed in Time for Opening of Local Tobacco Mart.

"Because of the fear which has been prevalent among tobacco growers of Pittsylvania County that the work on the Chatham highway would not be completed in time for the opening of the Danville tobacco market, Senator W. A. Garrett and Delegate Mailand Bustard recently called upon H. G. Shirley, state highway commissioner in Richmond to discuss the situation and prevail upon the commission to rush the work to completion.

"They were promised every co-operation in speeding the work. An engineer of the highway department was sent to make a check on the progress being made. It was found that the Haynes (Haymes) construction company, which is doing the work was up to schedule, and that the road will be finished by September 1st, a month before the opening of the Danville market is scheduled."

There is no question of the fact that plaintiff was paid with public funds for the construction of a public highway, which is a matter of public concern, and hence the work upon which he was engaged was a subject of fair and honest comment or criticism by newspapers, as well as any other citizen.

There are a few decisions which hold that a publication, even though false, concerning a matter of public interest, such as a misstatement of facts concerning a public officer or a candidate for office, made in good faith, from proper motive, and with reasonable ground for belief in its truth, is a good defense. Perhaps the leading case so holding is Coleman v. MacLennan, 78 Kan. 711, 98 P. 281, 20 L. R. A. (N. S.) 361, 130 Am. St. Rep. 390. However, the majority of cases hold that, if the facts upon which, the comment or criticism sought to be excused do not exist, the foundation fails. Williams Printing Co. v. Saunders, 113 Va. 156, 73 S. E. 472, 477, Ann. Cas. 1913E, 693; Post Pub. Co. v. Hallam (C. C. A.) 59 F. 530; Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N. E. 1, 13 L. R. A. 97. See, also, 17 R. C. L. 354, and 36 C. J. 1238.

Defendant contends that the editorial in question is not a comment or criticism upon plaintiff's fitness to prosecute his trade or calling as a contractor, but merely states that upon this...