Neely v. Payne

• Decision Date: 31 October 1921
• Docket Number: 21777
• Citation: 89 So. 669,126 Miss. 854
• Court: Mississippi Supreme Court
• Parties: NEELY v. PAYNE, Director General of Railroads et al

89 So. 669

126 Miss. 854

NEELY v. PAYNE, Director General of Railroads et al

No. 21777

Supreme Court of Mississippi

October 31, 1921

APPEAL from circuit court of Hancock county, HON. D. M. GRAHAM Judge.

1 CORPORATIONS. Statute making certain words actionable not applicable in suit against corporation for words of its agent.

Section 10, Code 1906 (section 1, Hemingway's Code), by which certain words are made actionable, has no application in a suit to hold a corporation liable for words spoken by its agent.

2. PLEADING. Each publication should be alleged in separate count.

Each publication of a slanderous charge presents a separate cause of action, and should be alleged in a separate count of the declaration. A demurrer should be sustained to a count containing several separate and distinct alleged publications of a slander.

3 CORPORATIONS. Libel and slander. In action against corporation for libel, truthfulness of statements in agent's letter, or that letter was not written about its business, and within scope of employment, held good defense.

In a suit against a corporation for libel because of a letter written by its agent to a third party, in which the plaintiff is spoken of as being a crook and a thief, it is a good defense for the defendant to prove either, first, the truthfulness of the statements made in the letter, or second, that the letter was not written by its agent while about the master's business and within the scope of his employment, but was merely a personal letter.

4 RAILROAD. Federal agent suable after termination of federal control.

Under section 206 of the Transportation Act of Congress of Feb. 28, 1920, suits brought after the passage of this act based on causes of action arising out of the possession, use, or operation by the President of the railroad, or system of transportation of any carrier, after the termination of Federal control, should be brought against the agent designated by the President, and not against the carrier by name.

5. RAILROADS. Federal agent not liable for punitive damages.

In suits brought under this act there can be no recovery of punitory damages against the agent of the government.

HON. D. M. GRAHAM, Judge.

Suit by L. V. Neely against John Barton Payne, Director General of Railroads, and others. Verdict for the defendants, and the plaintiff appeals. Affirmed.

Judgment affirmed.

Gex, Waller & Morse for appellant.

All that our friends say on the facts, certainly would not be justification for the court in refusing the appellant, the right to proceed against the Louisville & Nashville R. R. Company guilty or not guilty. The plaintiff had a right to file his complaint against the Louisville & Nashville R. R. Company, and to have it heard against the company. The authorities on that subject are fully set out in our main brief.

Our friends on the other side, especially in the brief filed by the Louisville & Nashville R. R. Company contend that the first assignment of error was incorrect, because the case of Jobe v. M. & O. R. R. Co., 84 So. 910, was not properly decided and cite a number of cases showing a different interpretation of the statute. It is interesting to note that most of these cases are by district judges, certainly by courts whose opinions are not binding, on this court.

Our friends then cite the holding of the Michigan court and another court to the effect that suit could not be brought against the Louisville & Nashville R. R. Company during the time that the Railroad was under Federal control. We might have filed many decisions from many other states holding to the contrary view, but why do it, and worry this court with added authority when by the decision of this court, it has placed itself with those courts that hold that the act providing for Federal control, is plain on its face that provides especially that these suits shall be brought, or may be brought against the carrier itself. That our court was right on the subject is apparent from the Transportation Act of 1920. It must be remembered that in the original act, by which the President was directed to take over the railroads, no provision was made for the levying of executions under a judgment, and some sort of rule, or order was made by Mr. McAdoo, then Director General of Railways, to the effect that the United States government would pay no judgment obtained against it as operator of the railroads, unless he or his representative approved the findings of the court. Some of the courts observed this order, and others properly, justly disregarded it, as a usurpation of authority by a man who, himself, understood little, as we see it, the principles on which the American government is based; he overlooked the fact that there are three co-ordinate departments of government in this country, and that the executive department of government, not even in time of war, had a right to overrule the judiciary. It must be remembered that martial law was never declared within the borders of the United States, certainly, at least not in the state of Mississippi.

Under the existing order, the Act of February 28, 1920, was passed, and by its provisions, or sub-divisions "G" cited in our friend's brief, it will be noted that Congress recognized that the ruling of this court in the Jobe case, supra, was correct, because it provided that no execution could be levied on the property of any carrier when the cause of action on account of which the judgment was obtained, grew out of the possession, use, control or operation of any railroad, recognizing of course, that the railroads had a right to be sued, because, how could an execution ever issue against the property of a railroad, on a judgment against the United States government. That would have been an absurdity on its face; so recognizing that the principles discussed in the Jobe case were properly decided, that the act providing for Federal control of railroads in itself provided that the railroads might be sued in cases such as the one under consideration and judgment obtained against them; by the Act of February 28, 1920, provided that no execution should be issued under those judgments; for the simple reason that since ultimately the government would be responsible to the railroads, and since the government itself was liable for the acts that brought about the suit. Congress wanted to provide and did provide that because of the government's misgiving, the railroad should not be directly embarrassed. Congress had this right, and it exercised it, but in the exercise of the right it interpreted its own statute, and interpreted it according to the interpretation placed on it by this court in the Jobe case, and then undertook to protect the railroads against a levy on their property before the government had an opportunity to make the railroads whole for the cause of complaint on which the particular judgment might be based. So we say that the statute cited by our friends in their brief, is sufficient to show that the Jobe case was properly decided.

This then, brings us to that particular defense, that since the Transportation Act of February 28, 1920, provided that suits filed thereafter might be brought against an agent designated by the President, for such purposes, that we could not join the railroad with that agent. How absurd; the Act of February 28, 1920, did not abrogate any right that had accrued to a litigant, by the original transportation act. It would have been retroactive law, and void on its face, if it could undertake to abrogate any right, acquired before that time. It did no such thing, and could not be so interpreted. If it did, then we say that according to the simple principles and adjudications too well known to this court to be cited, the act would have been unconstitutional.

So we say that this plaintiff had a right to proceed against the Louisville & Nashville R. R. Company as he undertook to do. That right was denied him. Therefore he did not obtain that trial or that right to present his case to the court as especially enjoined upon all courts by the constitutions, both of the state of Mississippi, and the United States.

On the second assignment of error, our friends first contend that it was well-founded, because of the fact that it proceeded under the statute, and under the case of Fire Insurance Company v. Betty, 101 Miss. 880. They say that we could not proceed against a corporation. We submit that in this they are in error, because the following cases authorize a suit of this sort, even under the statute: A. & V. R. R. Co. v. Brooks, 69 Miss. 168; Rivers v. Y. & M. V. R. R. Co., 90 Miss. 196; R. R. Co. v. Ely, 83 Miss. 533; Tribble v. Y. & M. Y. R. R. Co., 103 Miss. 1.

But it must be remembered that the declaration was amended by striking out the statutory ground or the statement that we were proceeding under the statute, and since it charged, as amended, that we were not proceeding under the statute but proceeding under the common-law ground of slander, it was certainly error for the court to say that the count on the slander was not sufficiently explicit. A reading of the count will show that it was not defective. It charged that these boys were charged with having stolen money and being thieves. It then went on and did explain that in addition to that, reports had been made to Mr. Boykin, superintendent, to the same effect; but that was all explanatory of the unmistakable charge of theft.

We submit that on the entire record, this court is bound to conclude that the plaintiff did not receive the trial as by law he is entitled to; that he was made to proceed against defendants, not of his own choice, that these errors regardless of what the court might think of the merits of the cause on proper...