Louisiana Oil Corporation v. Renno

• Decision Date: 03 December 1934
• Docket Number: 31421
• Court: Mississippi Supreme Court
• Parties: LOUISIANA OIL CORPORATION et al. v. RENNO

157 So. 705

173 Miss. 609

LOUISIANA OIL CORPORATION et al. v. RENNO

No. 31421

Supreme Court of Mississippi

December 3, 1934

Division B

Suggestion Of Error Overruled January 14, 1935.

APPEAL from circuit court of Hinds county HON. W. H. POTTER, Judge.

Action by Sam Renno against the Louisiana Oil Corporation and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Reversed and remanded.

Chalmers Potter, Walter W. Capers and Green, Green & Jackson, all of Jackson, and H. C. Walker, Jr., of Shreveport, La., for appellants.

Failure to exclude testimony of witness Star constituted prejudicial error.

Courtney v. American Express Co., 113 S.E. 332, 24 A.L.R. 128; Interstate Co. v. Garnett, 122 So. 373.

The court erred in failing to exclude the testimony of the plaintiff and in failing to grant the peremptory instruction requested by the Louisiana Oil Corporation on the ground that the contract between J. E. Bowman and the Louisiana Oil Corporation created relationship of independent contractor, and as a matter of law the Louisiana Oil Corporation could not be held liable.

39 C J. 1108; West Lbr. Co. v. Powell, 221 S.W. 339; Edmundson v. Coca Cola Co., 150 S.W. 273; Texas Co. v. Lewis, 144 So. 373; Watson v. Holiman, 153 So. 669; 39 C. J. , page 1269, pars. 1453 and 1454; 14 R. C. L., page 71, par. 8; Texas Co. v. Brice, 26 F.2d 164, 73 L.Ed. 555; Standard Oil v. Anderson, 212 U.S. 15, 53 L.Ed. 480; Burgess v. Standard Oil, 262 F. 767; Delaware & Hudson, etc. v. Vanderpool, 292 F. 690; Gulf Refining Co. v. Wilkinson, 114 So. 503; Lumber Co. v. Pittman, 154 Miss. 1, 122 So. 191; Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Crescent Baking Co. v. Denton et al., 147 Miss. 639, 122 So. 191; Callahan Const. Co. v. Rayburn, 110 Miss. 107, 69 So. 669; Gulf Refining Co. v. Nations, 145 So. 327; Rogers v. Lewis, 144 So. 373.

The words alleged to have been uttered being communications to the Company's retailers concerning company business, a qualified privilege existed and no liability attaches.

17 R. C. L. 341; 36 C. J. 1265; Cartwright-Caps Co. v. Fischel, 74 So. 278, Ann. Cas. 1917E 985, L.R.A. 1918F, 566; Alabama & V. Ry. Co. v. Brooks, 13 So. 847; Denver Public Warehouse Co. v. Holloway, 83 P. 131, L.R.A. (N.S.) 696; Grantham v. Wilkes, 100 So. 673; Myers v. Hodges, 44 So. 357; Hines v. Shoemaker, 52 So. 705; Vacicek v. Trojack, 226 S.W. 508; Moore v. Thompson, 52 N.W. 1001; Townsend on Slander and Libel (4 Ed.), sec. 287, page 512; Sharp v. Bolar, 45 S.W. 90; Bee Publishing Co. v. Shields, 94 N.W. 1029; Gattis v. Kilgo, 38 S.E. 931.

If the action is against joint defendants, other publications by a co-defendant are inadmissible to show malice on the part of the other defendant or defendants, where such publications have not been induced or authorized by the latter. Thus, in an action against a corporation and its agent, it is inadmissible to show evidence of other publications by the agent to establish malice on the part of the corporation.

37 C. J. 80; Courtney v. American Express Co., 113 S.E. 332, 24 A.L.R. 128.

The verdict of five thouand dollars is excessive.

Newell on Slander and Libel, secs. 780 and 790, page 881; 37 C. J. 128; Hines v. Shumaker, 52 So. 705.

Lotterhos & Travis, of Jackson, for appellee.

The court did not err in failing to exclude testimony of the witness Starr.

37 C. J., page 79.

Proof that the defamatory statements declared on, or words of similar import, had been spoken or written at other times, is admissible to show malice, whether such statements were made before those for which damages are sought or afterwards, even after commencement of suit.

Newell, Slander and Libel (4 Ed.), sec. 287; 2 Abbott's Trial Evidence (2 Ed.), page 1802; 7 R. C. L., Corporations, sec. 684, page 684; 3 Abbott's Trial Evidence (4 Ed.), sec. 1180, page 1279; 1 Wigmore on Evidence (2 Ed.), sec. 403; McClave-Brooks Co. v. Belzoni Oil Works, 113 Miss. 500, 74 So. 332; 17 R. C. L., sec. 167, page 410.

Bowman was an agent of the Louisiana Oil Corporation and not an independent contractor, and the court did not err in refusing to grant a peremptory instruction for the defendant, Louisiana Oil Corporation.

Gulf Refining Co. v. Nations, 145 So. 327; Watson v. Holiman, 153 So. 669; Pan American Petroleum Corp. v. Pate, 157 Miss. 822, 126 So. 480.

The court did not err in declining to grant instructions requested by the defendants on qualified privilege.

The person speaking the slanderous words must be under a duty of making the communication to a certain other person, to whom he makes such communication, in the performance of his duty. In the case at bar Bowman and the Louisiana Oil Corporation owed no duty to the persons present at the sales meeting to state to them that Sam Renno had been bootlegging.

The appellants have completely failed to show that a privileged occasion existed when Bowman made the slanderous statements.

Appellants cannot claim that the court erred with reference to the matter of privilege, because the appellants did not plead privilege in the court below.

Y. & M. V. R. R. Co. v. Watson, 104 Miss. 672, 61 So. 657; Sections 533 and 535, Code of 1930; 37 C. J., Libel and Slander, page 39; State v. Morgan, 59 Miss. 349.

No conceivable privilege could have existed except as between Bowman and Murphy, because Murphy was the man operating the station formerly operated by Renno and the gallonage of that station was under discussion when the slander was spoken. Murphy alone could have any interest in the gallonage at that particular station.

Even if it should be assumed that all of the other filling station operators who were present and in the employ of the Louisiana Oil Corporation could have had an interest in whether or not Sam Renno had been bootlegging because of some remote connection between that statement and the gallonage at their stations, and even if it should be assumed that Bowman owed a duty to all of these filling station operators to make the slanderous statement to them, yet we submit that no such duty could have been owed to the truck drivers and clerical employees who were present at the meeting.

Even on a privileged occasion the privilege would not protect from liability if a statement known to be false was made as being true. A denial of the fact of the statement, coupled with the fact that the appellants did not plead or attempt to prove a justification because of the truth of the slander, would destroy the right to rely upon a privilege, because the statement, if made,--and the jury has conclusively settled that proposition--could not have been made in good faith.

Hines v. Shumaker, 97 Miss. 669, 52 So. 705; Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 252; N. O. & G. N. R. R. Co. v. Frazer, 158 Miss. 407, 130 So. 493; Hodges v. Cunningham, 161 Miss. 395, 135 So. 215.

The verdict of five thousand dollars was not excessive.

Doherty v. Price Mercantile Co., 132 Miss. 39, 95 So. 790; Interstate Co. v. Garnett, 154 Miss. 325, 122 So. 373, 122 So. 756; Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 252; 17 R. C. L., Libel and Slander, sec. 188, page 429.

Argued orally by Marcellus C. Green, for appellant, and by Fred Lotterhos, for appellee.

OPINION

Anderson, J.

Appellee brought this action in the circuit court of Hinds county against appellants, Louisiana Oil Corporation and J. E. Bowman, to recover damages for an alleged slander uttered by Bowman, which appellee claims was done in the course of his employment as agent of the oil company. The trial resulted in a verdict and judgment in the sum of five thousand dollars against both appellants. From that judgment they prosecute this appeal.

These are the questions in the case: Whether or not appellant Bowman was an independent contractor, or the agent of the oil company acting within the scope of his authority, at the time of the utterance by him of the alleged slander. Whether or not the statement, if made, was a qualified privilege, and, if a qualified privilege, whether it was uttered in good faith. Whether or not the court erred in failing to exclude certain evidence offered by appellee, and whether or not the court erred in refusing certain instructions requested by appellants.

Appellant oil company was engaged in the Jackson territory in this state, as well as elsewhere in the state, in the sale and distribution of oil, gasoline, and other petroleum products. In the Jackson territory it owned or controlled by lease something like twenty service stations where its products were distributed by retail. It had a bulk sales station in the city of Jackson where its products were kept in bulk for distribution to the various service stations. Bowman was in the employ of the company; he was in charge of the bulk sales station, and had the supervision and control of the distribution of the products to the service stations. The respective rights and obligations of Bowman and the oil company were fixed by a written contract, the pertinent provisions of which are substantially as follows: It expressly names Bowman as the agent of the oil company in more than one place; it provides that he shall devote his entire time and energy to the sale of the oil company's products; that the oil company shall own or control by lease all the service stations; that all delivery equipment including trucks, carrying cans, hose, funnels, etc., shall be furnished by Bowman, but shall be satisfactory to the oil company; that the oil company shall sell Bowman any of such equipment when needed at actual cost, plus ten per cent for handling charge and plus freight; that Bowman shall pay all operating expenses of the business in his territory; that he shall...