Missouri Pac. Transp. Co. v. Beard

Decision Date20 September 1937
Docket Number32709
Citation176 So. 156,179 Miss. 764
CourtMississippi Supreme Court
PartiesMISSOURI PAC. TRANSP. CO. v. BEARD

Division B

1. LIBEL AND SLANDER.

Letter of transportation company's superintendent, to officers of three other transportation companies with which first transportation company was associated in operating a union bus station, recommending discharge of agent at such union station on ground of shortage in his account, was libelous.

2. LIBEL AND SLANDER.

Where letter was qualifiedly privileged, it was immaterial whether letter was libelous per se or libelous per quod.

3. LIBEL AND SLANDER.

A statement, whether oral or written, not excessive or intemperate in its language, made without malice and in good faith on a subject-matter in which the person making it and the person to whom it is made have a legitimate common interest, is privileged on the ground of public policy.

4. LIBEL AND SLANDER.

A presumption of good faith arises as to a privileged communication which is allegedly libelous, and the burden of showing malice or bad faith is cast upon plaintiff asserting its libelous character.

5. LIBEL AND SLANDER.

The term "malice," as characterizing an element activating the writer of an allegedly libelous communication relates to the state or condition of mind of the person who writes the defamatory words, and means that the person who writes or speaks is actuated by ill will or spite or hatred, or else that he spoke or wrote with a wanton and reckless disregard of whether the words were true or not.

6. LIBEL AND SLANDER.

As respects wantonness or recklessness of allegedly libelous communication written by transportation company's superintendent, in which plaintiff's discharge as station agent was recommended because of shortage in his accounts, as revealed by an auditor's report, a presumption of auditor's competency and reliability arose from fact that auditor had been engaged as such for 26 years, 18 of which were in the employ of transportation company.

7. LIBEL AND SLANDER.

In libel action based on alleged libelous character of letter of transportation company's superintendent, in which plaintiff's discharge as station agent was recommended on ground of shortage in accounts, as revealed by an auditor's report, refusal to admit full testimony offered as to previous audits and reports which showed discrepancies and apparent shortages was error, as such evidence had a material bearing upon question of superintendent's good faith and want of malice.

8. LIBEL AND SLANDER.

In action by union bus station agent against transportation company based on alleged libelous character of letter of transportation company's superintendent, based on an auditor's report, recommending station agent's discharge on ground of shortage in accounts, superintendent was entitled to rely upon the auditor's report under the evidence, and in so doing was guilty of no bad faith, so that, as far as malice or want of good faith on part of superintendent of transportation company was concerned, no cause of action existed against company.

9. LIBEL AND SLANDER.

Evidence held not to reveal any alleged conspiracy to secure discharge of union bus station agent upon which station agent's libel action, predicated upon letter recommending his discharge for shortage in his accounts, could be based.

10 EVIDENCE.

Surmises or conjectures are not sufficient to support a verdict and judgment.

11. LIBEL AND SLANDER.

Union bus station agent's libel action should be predicated not upon letter written by transportation company's superintendent recommending agent's discharge for shortage in accounts as revealed by audit, but rather upon publication by auditor of such audit; letter written by superintendent being regarded as merely a republication of a libel originated and committed by the auditor, an authorized agent of the company acting within the scope of his duties.

12. LIBEL AND SLANDER.

Auditor's report showing shortage in union bus station agent's accounts was qualifiedly privileged and required showing that auditor acted maliciously or in bad faith in order that libel action be predicated thereon.

13. APPEAL AND ERROR.

In action for damages for libel, reversal of judgment was required for lack of substantial facts in record upon which a verdict including punitive damages could be sustained.

14. LIBEL AND SLANDER.

Union bus station agent was not entitled to special damages in libel action based on alleged defamatory character of communication in which his discharge was recommended for shortage in his accounts, where his discharge would have been accomplished even if the allegedly defamatory portion of letter were omitted, since the defamatory part of the letter was not the proximate cause of alleged special damages.

15. LIBEL AND SLANDER.

Letter of transportation company's superintendent, referring to prospective new agent for union station, could furnish no basis for libel action by present agent, whatever the result thereof.

16 TRIAL.

Trial judge's reservation of ruling as to material matters in trial before jury is disapproved.

17. EVIDENCE.

Joint audits are admissible in evidence when each auditor personally appears as a witness and swears to the correctness of portion done by him.

18. COMMON LAW.

The common law goes no further in any of its principles or rules than the reasons therefor.

19. EVIDENCE.

When an audit has been made by more than one person, one or more of them may be interrogated as experts in regard to the summaries and finished results and is not confined solely to the part done by him.

Suggestion Of Error Overruled December 13, 1937.

APPEAL from the circuit court of Adams county HON. R. E. BENNETT, Judge.

Action by G. W. Beard against the Missouri Pacific Transportation Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Ratcliff & Ratcliff, of Natchez, and Hudson, Potts, Bernstein & Snellings, of Monroe, La., for appellant.

The alleged defamatory publication sued on (the letter of December 8, 1933) shows upon its face that it is not libelous, or injurious at all, could not be libelous per se, and special damages were not alleged.

Newell, Slander and Libel (4 Ed.), sec. 1, page 1, sections 2 and 6, section 138, pages 170-171, and sec. 175, page 218; 17 R. C. L. 262, 263 and 315; 36 C. J. 1143-5, 1149-51, 1223; 1 Words and Phrases (4 Ed) 693; 2 Words and Phrases (4 Ed.), 564-5; 3 Words and Phrases (4 Ed.), 280.

By "special damages" are meant particular injuries proximately consequent upon the alleged libel, but not necessarily or ordinarily flowing therefrom unless because of stated circumstances--the nature and extent of which must be alleged and established by proof--as distinguished from 'general damages'--which because naturally and necessarily ensuing the law presumes and allows recovered without allegation or definition.

17 R. C. L. 264 and 431; 37 C. J. 35-36; Newell, Slander & Libel, (4 Ed.), sec. 735, page 824, and sec. 737, pages 826-7.

The law of Mississippi so closely follows the general jurisprudence and is so clearly stated that we will not stray into other jurisdictions.

Holliday v. Md. Cas. Co., 115 Miss. 56, 75 So. 764; Heralds of Liberty v. Rankin, 130 Miss. 698, 94 So. 849; Lucas E. Moore Stave Co. v. Wells, 111 Miss. 796, 72 So. 228.

Where the letter alleged to be libelous is itself alleged in full, counsel's allegation as to what it "falsely, fraudulently, etc., charges" is merely a legal conclusion of the pleader.

49 C. J. 43-46, 57, 87; Jones v. Rogers, 85 Miss. 802, 38 So. 742; Mitchell v. So. Ry., 77 Miss. 917, 27 So. 834; 21 R. C. L. 440.

This declaration itself discloses upon its face that the alleged defamatory communication and the occasion for the alleged libelous publication were qualifiedly privileged, which required appellee to declare ultimate facts and circumstances sufficient to support and substantiate his general averment of malice and bad faith, and without which the unsupported and unsubstantiated general averment in this declaration was insufficient because the mere conclusion of the pleader, which should be disregarded upon consideration of the appellant's demurrer.

Hines v. Shumaker, 97 Miss. 669, 52 So. 705; Jarnigan v. Fleming, 43 Miss. 710, 5 Am. R. 514; Dedeaux v. King, 92 Miss. 38, 45 So. 466; McAdory v. Turner, 50 Miss. 666; A. & V. Ry. v. Brooks, 69 Miss. 168, 13 So. 848; Grantham v. Wilkes, 135 Miss. 777, 100 So. 673; Louisiana Oil Corp. v. Renno, 157 So. 705, 173 Miss. 609.

The burden of proof thus being upon appellee to establish malice, he must allege facts sufficient to justify and support it. This declaration not only completely fails to even attempt to do that, it alleges facts which themselves affirmatively negate malice or bad faith, wrongful motive, etc.

The only allegations in this entire declaration suggesting or even inferring malice are the obviously overstated, exaggerated, irresponsible and patently unjustified conclusions of the pleader that the simple, normal, natural, prudent and proper facts alleged constituted such false, unlawful, wilful, malicious, wicked, fraudulent, tortious defamation and libel--a conclusion supported by nothing and refuted by the communication itself as well as by the other material facts alleged.

That such allegations are mere legal conclusions of the pleader, and are not admitted by but must be disregarded upon demurrer is settled law.

49 C J. 43, 46, 60; 21 R. C. L. 440, 508; Knowles v. N. Y., 176 N.Y. 430, 68 N.E. 860; Davidson v. Buchanan, 164 A.D. 352, 149 N.Y.S. 640; Jones v. Pickard, 101 Misc. R. 117, 166 N.Y.S. 721; Langdon v. Kennedy, 224 N.W. 292; Noonan v. Luther, 41...

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