Lindsey v. St. Louis, Iron Mountain & Southern Railway Co.

Decision Date06 June 1910
Citation129 S.W. 807,95 Ark. 534
CourtArkansas Supreme Court

Appeal from Drew Circuit Court; Henry W. Wells, Judge; affirmed.

Judgment affirmed.

Austin & Danaher and Patrick Henry, for appellant.

Actual malice is not necessary when the words published are actionable per se. 122 S.W. 449. A corporation is liable for slander. 43 So. 471; 1 Clark & Marshall on Corp. pp. 627 629; 57 Miss. 759; 34 Am. Rep. 494; 37 Ala. 560; 74 Ala. 85; 49 Am. Rep. 800; 69 Miss. 185; 30 Am. St. R. 528; 13 So. 847 73 Miss. 161; 31 L. R. A. 390; 55 Am. St. R. 522; 18 So. 922; 142 N.C. 1; 54 S.E. 793; 55 Mich. 224; 54 Am. Rep. 372; 21 N.W. 324; 69 C. C. A. 127; 136 F. 129; 15 Serg. & R. 176; 61 Ala. 527; 21 How. 210; 62 U.S. 212; 77 Ark. 64.

W. E Hemingway, E. B. Kinsworthy, E. A. Bolton and James H. Stevenson, for appellee.

Agency alone is not enough to hold a corporation liable for slander. Cooley on Torts, § 142, p. 209; 150 Ala. 524. The plaintiff can not, in the first instance, give evidence of his own good character. Townshend on Slander & Libel, § 387; Newell on Libel & Slander, § 298; Odgers on Slander & Libel, § 298. A corporation is not liable unless it authorized the words to be spoken. 100 Ga. 213; 59 Ark. 539; 4 Ark. 110; 23 N.J.L. 360; 59 How. Pr. 104; 43 So. 210; 200 Mass. 265; 124 N.C. 100; 39 S.E. 392.



O. J. Lindsey charged the St. Louis, Iron Mountain & Southern Railway Company with slandering him. He alleged in his complaint that he was employed by the defendant as station agent at Monticello, in this State; "that while he was so employed, about 21st day of October, 1907, the defendant, through its agents and servants, negligently, recklessly, wilfully and maliciously slandered him by stating in the presence and hearing of L. H. Edwards, P. T. Hammock and Ed Ahrens that two cars of cotton had been stolen out of the yards of the defendant at Dermott and brought to the station of Monticello, and 14 bales had been unloaded in the depot, and that plaintiff got said cotton; and by asking him what he did with it. That the servants of defendant who spoke said slanderous words of plaintiff were O. J. Cantley and C. Perman, who were special agents in the employ of defendant for the purpose of finding said missing cotton, and said charge was made by them in furtherance of the defendant's business, which they were employed to do for the purpose of ascertaining whether plaintiff was the guilty person or had guilty knowledge of the matter, and of inducing him, if guilty, to confess it. That said slanderous words were wholly false, and were spoken maliciously and without probable cause, and plaintiff had not then or since then received said cotton, and had no knowledge concerning it. That thereafter he demanded of defendant that the slanderous charge be retracted, but defendant failed and refused to retract. That immediately after said slanderous charge defendant discharged him from its employ. That previous to that time he had the reputation in the community where he lived of being an upright, honest man, and had never been charged with or suspected of being engaged in any dishonest practice whatever. That said Edwards, Hammock and Ahrens, before whom the slanderous words were uttered, were citizens and residents of Monticello, where plaintiff lived. That by reason of the said slander plaintiff had been damaged, in his business standing and otherwise, in the sum of $ 10,000, and that, by reason of the wilful, reckless, and malicious conduct of defendant in uttering said slander, defendant became indebted to him in the sum of $ 20,000 punitive damages." He asked judgment for $ 30,000.

The defendant answered, and denied that its servants used the slanderous language complained of, or any other language which amounted to charging plaintiff with larceny or any other crime, or that such language was used for the purpose of ascertaining the guilty knowledge of plaintiff with respect to said cotton and of inducing him to confess. It denies that Cantley and Perman had authority to charge any person with having stolen the cotton, or to use any other language which would injure him in his business standing. Defendant had no knowledge of the truth or falsity of the words alleged to have been spoken, further than that the cotton was taken from the yards at Dermott, and had at no time charged plaintiff with having taken it, or being a party to the publication of such a charge. It denies that he demanded that it retract the charge or that it refused to do so. That, never having made or authorized the charge, it had nothing to retract. "That no language was used toward or about plaintiff calculated to injure him in his reputation, socially or in business circles, or calculated to charge him with a crime, but all that was said was to give him such facts as had been ascertained concerning the loss of the cotton to enlist his assistance in finding it; that all communications made to him were of privileged character, and without intent to injure him and without any suspicion of his guilt. It admits that it discharged him, but denies that it was on account of said cotton being lost, and says it was solely on account of his insubordination to those in authority over him. It denies that he was damaged as alleged in the complaint or in any other sum, and prays to be dismissed."

A jury tried the issues in the case, and returned a verdict in favor of the defendant, and plaintiff appealed.

Both parties adduced evidence for the purpose of proving the allegations of their respective pleadings.

Among other things plaintiff testified in his own behalf that he was discharged from the service of the defendant immediately after he was accused of having or taking the missing fourteen bales of cotton.

The defendant adduced evidence, over the objection of the plaintiff, to prove that he was discharged from its service on account of incivility while acting as its agent.

George M. Parker testified, in behalf of the plaintiff, substantially as follows: "I am a conductor in the employ of the defendant, and in 1907 ran the freight train between McGehee, Arkansas City and Warren, passing through Monticello. There were two crews on that run. Conductor Weed was the other conductor. I know C. Perman, special agent for defendant. In October, 1907, Perman came into the lunch room at McGehee, and said he wanted to talk to me. We went outside, and he asked me if I didn't take two cars of cotton out of the Dermott yards to Monticello about the 15th of October, and if O. J. Lindsey, the agent at Monticello, didn't unload this cotton there. I told him I didn't take the cars over to Monticello, and had no record of handling them. He turned and asked me what I did with the 14 bales of cotton, and I told him I didn't know anything about the cotton at all. He told me if I was mixed up in these 14 bales of cotton I had better get clear and unload on Lindsey. I told him I knew nothing whatever of the cotton. He said that he wanted to stick Lindsey for the 14 bales of cotton, that they knew where the cotton was, and could lay hands on it, and wanted me to get in the clear."

The court instructed the jury at the request of the plaintiff, in part, as follows:

"1. A slander is any publication or utterance which accuses a person of a crime punishable by law, or which amounts to a charge of having been guilty of any dishonest business or transaction, the effect of which would be to injure the credit or business standing of the person so slandered.

"8. In order to award punitive or exemplary damages, it must appear that the slanderous words were spoken of the plaintiff by the defendant through its agent acting within the scope of his employment, with malice. Malice, as used in this instruction, does not mean that the agent using the alleged slanderous words must have any personal spite, ill-will or hatred of the plaintiff, but means if the defamatory words complained of were wrongfully used, and were used intentionally, without just cause or excuse, or in wanton and reckless disregard of the rights and feelings of the plaintiff, then, in the legal sense, they were maliciously used.

"9. While it is true that malicious intent is not to be presumed, but must be proved, this proof need not be in the form of direct testimony, but may be shown by circumstantial evidence. It is for the jury to say, after considering the language of defendant's agent complained of, together with all the circumstances attending its utterance, whether such slanderous words were or were not spoken with malice, either express or legal, as hereinbefore defined."

And refused to instruct as follows:

"2. You are instructed that it is alleged, and not denied, that the plaintiff had the reputation in the community in which he lived of being an upright, honest man, and he had never been charged or suspected of any dishonest practice of any kind whatever; therefore you will accept said allegation as proved."

And instructed them at the request of the defendant, over the objections of the plaintiff, as follows:

"1. The court instructs the jury that the burden of proof is on the plaintiff in this case to prove by a clear preponderance of the evidence that the language complained of, as set out in the complaint, was used and published by the...

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