Massee v. Williams

Decision Date30 June 1913
Docket Number2,267.
Citation207 F. 222
PartiesMASSEE v. WILLIAMS.
CourtU.S. Court of Appeals — Sixth Circuit

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Plaintiff disputes this evidence. The defendant went to Pulaski, paid the Giddens bill, and prevented the sale. Plaintiff says he and the defendant disagreed before the payment was made, and that he then decided to sue defendant. The defendant denies any disagreement or that he had any intimation that plaintiff made any claim against him. After the bill was paid, plaintiff asked defendant for a loan of $50 and was told to draw for that amount. On the same day, April 6th, plaintiff, through his attorneys, Hatcher & Hatcher, sued defendant in Tennessee on account of the farm business for breach of contract. Evidence offered on plaintiff's behalf tends to show: That on the morning of April 7th, at the Fair Grounds, defendant said to one Jones: 'He (the plaintiff) has brought suit against me since I have been here in Tennessee, and * * * I am going to put him in the penitentiary. * * * He has appropriated money and he has sold horses that belonged to me and I have got him down dead to rights. * * * He is a d-- thief and scoundrel, and I am going to put him in the penitentiary. ' That later on the same morning the defendant voluntarily called at the office of the Hatchers and asked to employ them as his counsel (the evidence on this point being uncertain), and began to talk 'ugly, * * * began some kind of an abuse of Mr. Williams, spoke of what he had done for him, what an ingrate he was and what a rascal he was,' etc., but 'made no direct charges against Mr. Williams. ' That, at defendant's request for a friendly conversation with plaintiff to compromise the then pending suit, an afternoon interview was arranged at Hatcher's office, at which the defendant said: 'You brought a lawsuit against me, and you know d-- well that I don't owe you anything; you have stolen my money, and have robbed me, and you know it; and you have embezzled my money and squandered it, obtained it under false pretenses, and if you don't dismiss that lawsuit-- and you have made use of a lawsuit to compel me to pay you something that I don't owe you, and if you don't dismiss it * * * I am going to put the stripes on you and send you to the penitentiary. ' That the discussion related to the stock farm, which had been operated under plaintiff's management, to a settlement of the pending suit concerning their partnership affairs, and to the plaintiff's sale of a horse and failure to account for the money; the defendant charging plaintiff with appropriating money belonging to the farm to his own use, but subsequently admitting that the horse perhaps belonged to the plaintiff. That the defendant was cool, angry, and greatly hurt because he had been sued. That each party informed the other of his bad reputation for truth and veracity, and that the plaintiff, when about to leave, in response to the defendant's request for a settlement of their matters out of court, told the defendant 'to go to h-- .' The defendant's evidence tends to show that he went to Hatcher's office on the morning of April 7th to arrange a compromise of the pending suit; that he made no statement at any time at Columbia derogatory of the plaintiff, excepting that he was a 'bad egg'; that he had been informed by Giddens on April 6th that plaintiff claimed ownership of several of the horses and had given one worth $300 to an attorney for personal services; that plaintiff admitted such information to be correct and, when asked where he obtained the money to buy certain horses at Indianapolis, admitted that he had used the farm money to buy those which Giddens said the plaintiff claimed; that he had lured defendant into Tennessee under the pretense of paying Giddens for the purpose of suing him; and that such admissions greatly angered defendant in view of his kindness to and previous trust reposed in plaintiff. Evidence in behalf of defendant disputed the making of such admissions. On April 7th plaintiff brought the present action, counting on defendant's conversation at the Fair Grounds, his two conversations in Hatcher's office, and in an indefinite way on accusations made on the streets of Columbia of theft, dishonesty, and appropriation to his own use of money collected in the conduct of the farm business, but offered no evidence on this last charge. Evidence to show plaintiff's general good reputation for truth, integrity, and fair dealing was offered in chief, and also of defendant's having said to the deputy sheriff, when served with a summons in the present case, that he slapped the plaintiff in the face and called him a thief on the streets of Columbia that morning. The defendant was indicted under a Tennessee statute for maliciously charging plaintiff with crime to coerce him against his will to dismiss the suit for breach of contract. The evidence of the defendant, in the form of a deposition taken before the trial, goes to show his inability, on account of a physical ailment, to attend the hearing of his case, and that he was indicted to prohibit his presence in the state of Tennessee.

The plaintiff is 42 years of age, was born in Nashville, lived in Columbia, Tenn., from 1884 to 1892 (being three of those years in a bank), had been employed by three packing firms, and had on different occasions been connected with a Jersey farm, a farm paper, live stock business, and sales stables, respectively, with some four or five fairs, and with the breeding of horses. The defendant is president of a power company and an electric street railway company. His answer tendered the general issue. A verdict was rendered in favor of the plaintiff for $16,250. A remittitur of $8,750 ordered by the trial judge was accepted, and judgment was entered for $7,500.

George T. Hughes, of Columbia, Tenn., Walter Stokes, of Nashville, Tenn., and M. Felton Hatcher, of Macon, Ga., for plaintiff in error.

J. C. Voorhies, of Columbia, Tenn., and Harry S. Stokes and John A. Pitts, both of Nashville, Tenn., for defendant in error.

Before WARRINGTON and DENISON, Circuit Judges, and SATER, District judge.

SATER District Judge (after stating the facts as above).

Exception to the competency of the evidence offered as to the respective morning and afternoon conversations held at the office of the Hatchers was sufficiently reserved on the grounds that any communication made by the defendant at either of such meetings (1) was privileged on account of the mutual interest of the parties in the matter under discussion, and (2) was not a publication, although made in the presence of the Hatchers, who were plaintiff's attorneys, and (3) the parties were endeavoring to compromise the pending action for breach of contract, and, as the conversations related to such subject-matter, they were both privileged. Exception was also taken to that part of the charge to the jury as erroneously locating the burden of proof in which the court said, regarding the second conversation, that the burden was on the defendant to establish by a preponderance of the evidence that the words employed by him, which otherwise would be slanderous, were uttered in good faith, without malice, and within the scope of the compromise negotiations, and that, if he thus made proof in the respects named, his communications were privileged and afforded no ground of recovery against him, even if his statements were made in the presence of plaintiff's counsel; but if he failed to make such proof, and if the greater weight of the evidence showed that his statements went beyond any attempt at compromise and were in the nature of threats and intimidation to cause the plaintiff to dismiss his suit, they were not then privileged.

The evidence of both parties shows that the second interview was for the purpose of effecting a compromise. It therefore was the duty of the court to declare the occasion qualifiedly privileged. Newell, Slander and Libel (2d Ed.) 392, 770; Folkard's Starkie, Slander and Libel, Sec. 674. The subject-matter of discussion was also privileged. Whether the defendant's utterances on that occasion were made in good faith was a question for the jury. Folkard's Starkie, Slander and Libel, Sec. 674; Robinson v. Van Auken, 190 Mass. 161, 166, 76 N.E. 601.

If the defendant's utterances, delivered as they were at a meeting on which all of the parties had agreed, were actionably slanderous, was there, on account of the presence of the plaintiff's counsel, such a publication of them as to confer a remedy by civil action? To constitute an actionable publication, it is essential that it be made to some third person or in such public manner as to reach third persons; that is, to some person other than the author or publisher and the party whom or whose affairs the language concerns. Sylvis v. Miller, 96 Tenn. 94, 95, 33 S.W 921; Townsend, Slander and Libel, Secs. 93, 95; Fry v. McCord Bros., 95 Tenn. 691, 33 S.W. 568; Cooley on Torts (3d Ed.) p. 366; Newell, Slander and Libel, 756. Sending a libelous letter or speaking defamatory words to a plaintiff's agent, solicitor, or counsel is a sufficient publication to a third person. Odgers, Libel and Slander (5th Ed.) 161; Townsend, Slander and Libel, 439, 440; Tuson v. Evans, 12 A. & E. 175; Huntley v. Ward, 1 F. & F. 552, cited with approval in Brewer v. Chase, 121 Mich. 526, 534, 80 N.W. 575, 46 L.R.A. 397, 80 Am.St.Rep. 527; Hancock v. Case, 2 F. & F. 711; Jacobs v. Lawrence, 4 L.R.Ir. 579; Clerk & Lindsell on Torts (4th Ed.) 568; Folkard's Starkie, Slander and Libel, Sec. 308; Middleby v. Effler, 118 F. 261, 263, 264, 55 C.C.A. 355 (C.C.A. 1), approving Brow v. Hathaway, 13 Allen (Mass.) 239, 242; Commonwealth v....

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