Maytag v. Cummins

• Decision Date: 08 July 1919
• Docket Number: 4996.
• Citation: 260 F. 74
• Parties: MAYTAG v. CUMMINS.
• Court: U.S. Court of Appeals — Eighth Circuit

260 F. 74

MAYTAG v. CUMMINS.

No. 4996.

United States Court of Appeals, Eighth Circuit.

July 8, 1919

Frank R. Aikens, of Sioux Falls, S.D. (Harold E. Judge and Charles P. Bates, both of Sioux Falls, S.D., on the brief), for plaintiff in error.

J. U Sammis, of Sioux City, Iowa (Shull, Gill, Sammis & Stilwell and E. E. Wagner, all of Sioux City, Iowa, on the brief), for defendant in error.

Before SANBORN, CARLAND, and STONE, Circuit Judges.

SANBORN Circuit Judge.

This is an action for damages for slander. During September, October November and a part of December, 1914, F. I. Cummins, the plaintiff below and so termed herein, was the assistant general manager and was discharging the duties of traffic manager, and F. L. Maytag, the defendant below and so called herein, was the president, of the South Dakota Central Railroad Company. Mr. Kirby and Mr. McArthur were stockholders and directors of that company, and Mr. Kirby was its general counsel. On March 5, 1915, the plaintiff sued Maytag, the defendant, for $100,000 damages for publishing certain alleged slanders of him. The defendant answered by denying many of the averments of the complaint and by pleading that the alleged slanders were privileged communications made to the officers of the railroad company to enable them to protect its interests. The complaint set forth five alleged causes of action. Two of them were dismissed before the case was submitted to the jury.

The material averments of the three which went to the jury were: (1) That on or about December 18, 1914, at Sioux Falls, S.D., in the office of Mr. Kirby, in the presence and hearing of Mr. Kirby and Mr. McArthur, the defendant, Maytag, made this false statement, willfully and maliciously, to Mr. Cummins: 'I have conclusive evidence that you stole a large amount of coal shipped to the South Dakota Central Railway Company, and diverted the proceeds to your own use. My suspicions have covered a period of several months, and have been confirmed by a report of an investigation instituted by the Interstate Commerce Commission at the time said investigators came to Sioux Falls in the fall of the year 1913;' (2) that in Chicago, Ill., on or about November 20, 1914, the defendant, Maytag, said to E. T. Radcliffe, 'How long will it take to check up the records on the 52 carloads of coal that Cummins has gotten away with;' and, (3) that on or about December 17, 1914, at Sioux Falls, S.D., he falsely and maliciously said to E. L. Crimmens, 'There has been a systematic steal going on down there (meaning down at the headquarters of the South Dakota Central Railway Company in the city of Sioux Falls, or in its yards and terminals in said city), and I have evidence that he has taken the coal from this list (meaning a list of cars defendant held in his hand at said time) of cars, and that the coal in these cars has been stolen by Cummins.'

The trial of the action occupied five days. In the course of it evidence was introduced tending to prove that the defendant had made the statements alleged in the complaint, that after the dates when he was alleged to have made them third persons, without his authority or request, repeated them, and stated that Maytag had made them, and that rumors and reports to that effect were current in Sioux Falls. All the evidence of these repetitions of the defamatory statements, of the reports of such third persons that Maytag had made such statements, and of the current rumors and reports, were objected to by counsel for the defendant on the grounds that they were hearsay, that they were not traceable to or binding upon him, and that they were incompetent and immaterial. These objections were overruled, exceptions were taken to this ruling, and for several days testimony of these repetitions of the slanderous charges by unauthorized third persons, of their statements that Maytag had made them, and of the current reports and rumors of them was poured into the ears of the jurymen. At the close of the trial, however, the court on motion of counsel for the defendant, struck all this testimony from the record and directed the jury to disregard it.

Counsel for the defendant, Maytag, assigned the rulings admitting this evidence as error, and contend that the injurious effect of it was not cured by the final ruling upon, and direction regarding it. There are seventy other alleged errors assigned. But if the admission of this evidence was error and if the endeavor of the court to withdraw it failed to extract the vice of its admission, there must be a new trial, and this assignment will therefore first be considered.

Is it then the law that evidence of the voluntary and unauthorized repetition of a slander and of rumors and reports thereof by third persons, not under the control of and without the request of the originator, is admissible in an action against him for damages caused by his utterance of it to others? Counsel for Mr. Cummins contend that this question should be answered in the affirmative: (1) Because the originator of a slander is responsible for the natural and probable consequences of his utterance of it; and (2) because whether the subsequent unauthorized repetition, reports, and rumors are such a consequence is a matter of fact ordinarily to be determined by a jury. Let the proposition that the originator of a slander is responsible for the natural and probable consequences of his utterance of it be conceded. Then the question becomes, Is it the law that the voluntary and unauthorized repetition of a slander by third persons, current rumors and reports thereof, and damages flowing therefrom, are not as a matter of law the natural or probable consequences of the original utterance of the slander, and that therefore evidence thereof is not admissible in an action for damages against the originator? Or is it the law that the question whether or not the voluntary and unauthorized repetition of a slander by third persons, current rumors and reports thereof, not connected by evidence with the originator of the slander, and the damages flowing from such repetitions, rumors, and reports, are the natural and probable consequences of the original utterance is an issue of fact that should ordinarily be submitted to a jury, and therefore evidence of such unauthorized repetitions, rumors, and reports, and the damages therefrom is admissible in evidence against the defendant in an action for slander?

The court below, at the close of the trial, evidently after a searching examination and careful consideration of this matter, decided that the first question must be answered in the affirmative and the second in the negative.

In an action at law this is a court for the correction of errors of law of the trial court exclusively, and the question here is whether or not the court below, by making this ruling, fell into an error of law. The question it became the duty of that court to decide, and that it now becomes the duty of this court to determine, was not a new one. It was a question which had been repeatedly adjudged by the courts of England and of this country. It was not, and it is not, what in the opinion of the court below or of this court the rule on this subject ought to be if no rule had ever been made by controlling authority or by the general consensus of judicial opinion. But the question was and is: (1) Had the rule of law on this subject become established by the weight of respectable authority or the consensus of judicial opinion when the court below made its ruling? And, if it had been so established, was the ruling of the court below in accordance with such weight of authority or judicial opinion? If it was, that ruling ought not to be held to be erroneous because it was the duty of the court below so to rule, and because a settled and certain rule of law on such a subject as that here in question is far more conducive to the administration of justice than conflicting authorities and that uncertainty which makes it impossible for laymen or lawyers to know what the rule is.

Counsel for the plaintiff, Cummins, in support of their contention that the rule of the court below on this subject is erroneous, insist that their view is supported by these authorities: Merchants' Ins. Co. v. Buckner, 98 F. 222, 223, 39 C.C.A. 19; Williams v. Fulks, 113 Ark. 82, 167 S.W. 93; Moore v. Stevenson, 27 Conn. 14; Zier v. Hofflin, 33 Minn. 66, 21 N.W. 862, 53 Am.Rep. 9; Rice v. Cottrel, 5 R.I. 340; Nott v. Stoddard, 38 Vt. 28, 88 Am.Dec. 633; Smith v. Moore, 74 Vt. 81, 52 A. 320, 321; Davis v. Starrett, 97 Me. 568, 55 A. 519. In the citation, discussion, and treatment of these and other authorities, counsel fail to notice and consider the wide distinction between the line of materiality of evidence in actions for libel and the line of materiality in actions for slander which results from the fact, among others, that the written or printed instrument which contains the libel proves it, and proof of the circulation or repetition of that writing or print does not, so far as it proves what the libel was, run counter to the basic rule against hearsay, while evidence of the repetition of a slander or of rumors or reports thereof by third persons to whom the originator never uttered it is incompetent, under the rule against hearsay, to prove what the alleged slander was, because the repetitions, reports, and rumors are necessarily either simple or multiple hearsay, either hearsay or hearsay of hearsay. Board of Commissioners v. Keene Five-Cent Savings Bank, 108 F. 510, 511, 47 C.C.A. 464. This distinction will be further considered later.

We turn to the consideration of the authorities. In addition to those which have been cited attention is called to the facts that in McBride v. Ledoux et al., ...