Lancaster v. Hamburger

• Decision Date: 26 April 1904
• Docket Number: 8197
• Parties: Lancaster v. Hamburger.
• Court: Ohio Supreme Court

71 N.E. 289

70 Ohio St. 156

Lancaster v. Hamburger.

No. 8197

Supreme Court of Ohio

April 26, 1904

Patron of street railway - Incurs no liability to conductor - For reporting conductor's misconduct - Ill will of reporter not culpable.

A patron of a street railway company incurs no liability to a conductor by reporting to the superintendent of the company such conductor's misconduct while on duty, toward a passenger, though in making the report he is prompted by ill will and a desire to secure the conductor's discharge from the service of the company.

Lancaster brought suit against Hamburger; the substance of the allegations of his petition being, that he had, for a long time, been in the employ of the Cincinnati Street Railway Co. in the capacity of a conductor on its Madison avenue line that at some time prior to December 31, 1898, the defendant who had conceived a violent dislike to him, and who had repeatedly threatened to procure his discharge from said employment, did, without excuse, cause, or justification, and actuated solely by a malicious desire to injure plaintiff falsely and maliciously say to the superintendent of said company that plaintiff, while on duty as conductor, had been guilty of misconduct and of violation of the rules of the company, in consequence of which charge plaintiff was, on that day, discharged from said employment to his damage in the sum of ten thousand dollars. The defendant, answering, denied the allegations of malice, and averred that while he and others were traveling as passengers on the car of said company which was in charge of plaintiff as conductor, the plaintiff was guilty of rude and ungentlemanly conduct towards them, which defendant reported to the superintendent of the company, and that the superintendent, after investigating the subject, discharged the plaintiff from the company's service. The bill of exceptions taken upon the trial is as follows:

"The plaintiff to maintain the issues on his behalf offered evidence tending to prove that prior to the month of December, 1898, he was employed by the Cincinnati Street Railway Co. as conductor, that on or about the thirty-first of December, 1898, he was discharged; that with continued service and good behavior his wages would, had he remained in said employment, have been increased, according to a uniform and regular system of promotion then and thereafter practiced by said company and its successor; that he was not able after his said discharge, though having used diligent and reasonable effort in that behalf, to earn as much as he had earned prior to his discharge; that prior to said discharge, during November and December, 1898, the defendant made complaint two or three times to the superintendent, or other officer of said street railway company, of the plaintiff and of his manner of performing his duties as such servant of said com- pany, and represented that he had been guilty of misconduct, impoliteness or rudeness and of the violation of some rule of said company while on duty as conductor, and that he did not perform his duties as such servant of said company according to certain of the rules of said company then in force; that in consequence of said complaints and representations of defendant the plaintiff was discharged as aforesaid; that said complaints and representations were induced by the dislike and ill feeling of the defendant for the plaintiff, and a desire to cause his discharge without justification and were not warranted by the facts; that the defendant said to or in the presence of third persons in November and December, 1898, that he would have the plaintiff discharged, even if it cost him all he was worth; that during said months he threatened and informed the plaintiff that he would have him discharged and that after said threats and avowal of said purpose the defendant complained of the plaintiff to the superintendent, or other officer of said company, with the purpose of causing and procuring his discharge, and did thereby cause and procure his discharge; that the plaintiff and defendant had two or three disputes during said months of November and December, 1898, in which disputes the defendant had threatened to have the plaintiff discharged, as aforesaid, and on one of the occasions a personal encounter was threatened between the plaintiff and the brother-in-law and friend of the defendant, then in defendant's company; and that the plaintiff did not violate any of the rules of said company then in force in his dealings with the defendant.

"And to maintain the issues on his part, the defendant offered evidence tending to prove that the complaints made by the defendant were made absolutely, entirely and completely without malice and in the best of good faith and were true in every respect and particular; that the plaintiff had repeatedly been guilty of rudeness and impoliteness to the defendant and his wife while on duty as conductor, and that he had in reference to the defendant and in his presence violated the rules of said company governing its servants, or some one or more of said rules, particularly the rule against permitting smoking; that no threats were made at any time by defendant with the purpose of causing the discharge of the plaintiff from the employment of said street railway company, neither to the plaintiff nor to any third person; that the defendant had no ill will against, or dislike of the plaintiff, but on the contrary, that he refrained from complaining of the plaintiff on many occasions when the facts would have warranted such complaint; that the discharge of the plaintiff was caused in no respect by the defendant or by any complaints or representations made by him, but was caused by the plaintiff's own neglect of his duties and by his disobedience of the rules of the said street railway company, and that the plaintiff had violated certain rules of the company in his relations as an employe of the company with the defendant and his wife."

The portion of the charge which is now material is the following instruction, given at the request of the defendant: "It was the duty of the plaintiff not to conform to any fanciful degree of conduct, nor to observe that degree of conduct which, perhaps, we would like to observe at all times as ideal, but he was obliged to observe such degree of deportment, decorum, politeness and courtesy as is common among ordinary men in their dealings with one another; and if he failed to observe such a standard, then he would be guilty of rudeness and the defendant in the case would have a right to make complaint. If, therefore, he was guilty of failure to enforce the rules in respect to smoking or guilty of impertinence, or if in enforcing the rules of his employers he did so in such a manner that would intentionally cause defendant to be held up to the ridicule of fellow passengers, then if the defendant in the case made complaint, it made no difference what his motive was in making the complaint. He had the right to make the complaint and defendant would be entitled to the verdict."

The jury returned a verdict for the defendant and, the plaintiff's motion for a new trial having been overruled, judgment followed the verdict. The judgment was affirmed by the superior court at general term.

Mr. Charles B. Wilby; Mr. Charles E. Tenney and Mr. Oliver S. Bryant, for plaintiff in error, cited and commented upon the following authorities:

Dial v. Holter, 6 Ohio St. 228; Hayner v. Cowden, 27 Ohio St. 292; Keeble v. Hickeringall, 11 East, 574; Carrington v. Taylor, 11 East, 571; Lumley v. Gye, 2 E. & B., 216; Temperton v. Russell, 1893, 1 Q. B., 715; Allen v. Flood, 1898, A. C., 1; Quinn v. Leathem, 1901, A. C., 495; Steamship Co. v. McGregor, 1892, A. C., 25; 23 Q. B. Div., 598; Frazier v. Brown, 12 Ohio St. 294; Chipley v. Atkinson, 23 Fla. 206; Lucke v. Clothing Cutters' Association, 77 Md. 396; Barr v. Trades Council, 53 N.J.Eq. 101; Van Horn v. Van Horn, 52 N. J. Law, 284; Graham v. Railway, 47 La. An., 214; Ertz v. Produce Exchange, 79 Am.St. 433; Bohn Mfg. Co. v. Hollis, 54 Minn. 223; Walker v. Cronin, 107 Mass. 555; Plant v. Woods, 176 Mass. 492; Moran v. Dunphy, 177 Mass. 485; Steamship Co. v. McKenna, 30 F. 48; Blumenthal v. Shaw, 77 F. 954; Connell v. Stalker, 20 Miscel. (N. Y.), 425; Curran v. Galen, 22 N.Y.S. 826; Doremus v. Hennessy, 52 Ill.App. 391; State v. Huegin, 85 N.W. 1046; Moores & Co. v. Bricklayers' Union, 10 Re., 665; 23 Bull., 48; 46 Am. Law Reg. and Rev. (O. S.), 273; 16 Harv. Law Rev., 237; Perkins v. Pendleton, 90 Me. 166; Delz v. Winfree, 80 Tex. 400; Olive v. Van Patten, 7 Tex. Civ. App., 630; Robinson v. Land Association, 40 S.W. 843; Jackson v. Stanfield, 137 Ind. 592; Lally v. Cantwell, 30 Mo. App., 524; Morgan v. Andrews, 107 Mich. 33; Dannerburg v. Ashley, 5 Circ. Dec., 40; 10 C. C. R., 558; Mattison v. Railway Co., 5 Dec., 125; 3 N. P., 190.

Messrs. Kelley & Hauck, for defendant in error, cited and commented upon the following authorities:

Keeble v. Hickeringall (1707), 11 East, 574; Moran v. Dunphy, 177 Mass. 485; Kelley v. Ohio Oil Co., 57 Ohio St. 327; Townsend on Slander and Libel (4 ed.), sec. 42; Racroft v. Tayntor, 68 Vt. 219; Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St. 198; Traction Co. v. Parish, 67 Ohio St. 189; Letts v Kessler, 54 Ohio St. 73; Frazier v. Brown, 12 Ohio St. 294; Jenkins v. Fowler, 24 Pa. St., 308; Boyson v. Thorn, 98 Cal. 578; Fisher v....