Parker v. Appalachian Electric Power Co.

• Decision Date: 24 March 1944
• Docket Number: C. C. No. 681.
• Citation: 30 S.E.2d 1,126 W.Va. 666
• Parties: PARKER v. APPALACHIAN ELECTRIC POWER CO. et al.
• Court: West Virginia Supreme Court

30 S.E.2d 1

126 W.Va. 666

PARKER v. APPALACHIAN ELECTRIC POWER CO. et al.

C. C. No. 681.

Supreme Court of Appeals of West Virginia.

March 24, 1944

Rehearing Denied May 23, 1944.

Syllabus by the Court.

Salisbury, Hackney & Lopinsky, of Charleston, for plaintiff.

Campbell McClintic & James and Charles C. Wise, all of Charleston for defendants.

RILEY Judge.

The plaintiff, Enoch M. Parker, instituted in the Court of Common Pleas of Kanawha County, this action of trespass on the case for libel against Appalachian Electric Power Company and W F. Ficklen.The common pleas court overruled defendants' demurrer, and upon the joint motion of the parties certified to the circuit court its rulings on the demurrer which, in turn, sustained the common pleas court, and certified the case to this Court.

As a premise to charging the gravamen of the matters complained of, the declaration alleges in detail that plaintiff is "a good, true, honest, upright, and worthy citizen of Kanawha County" who "until the committing of the several grievances and injuries, as hereinafter mentioned" bore a good reputation among his neighbors, acquaintances and other good and worthy citizens, to whom he was in any wise known" and "hath never been

suspected to have been guil ty of the offenses and misconduct, hereinafter mentioned, to have been charged upon and imputed to him" by the defendants, or any other offense or misconduct.

Plaintiff then alleges that he was injured while in the employ of defendant corporation, for which he had worked for many years; that for a long time prior to the grievances complained of, the defendant, W. F. Ficklen, was employed as the corporate defendant's division manager, in charge of the supervision and general management of the corporation; that because of disability resulting from his injuries, plaintiff applied to the Division of Vocational Rehabilitation of the Department of Education of the State of West Virginia, for assistance in securing light work; and, on June 17, 1942, Marvin R. Barker of said Rehabilitation Division wrote Ficklen the following letter:

"Dear Mr. Ficklen: Re: E. M. Parker

Chelyan, West Va.

This Division has recently become interested in the case of the above mentioned person.Mr. Parker was injured at your Cabin Creek Plant, March 18, 1938.He was awarded a 35% disability by the Compensation Commission.This award will expire January 2, 1943.

Mr. Parker informed me that he had worked for your company 29 years prior to the date of his injury.The last fifteen years were spent as an operating engineer.In view of this client's past excellent record and his physical handicap, it occurred to me that you might be interested in making some type of a job adjustment for him.I believe that he would be able to work as a sub-station operator, watchman, or P.B.X. operator.May I have a reply to this request.

Very truly yours,

Marvin R. Barker, Field Agent,

Vocational Rehabilitation."The declaration further alleges that defendant corporation, acting by and through Ficklen, its duly authorized agent, committed the grievances complained of; that defendants well knowing the premises, but envying plaintiff's condition and "contriving and maliciously intending to injure him in his good name and morals and bring him into public scandal, infamy and disgrace with and amongst all his neighbors, acquaintances, and other good and worthy citizens of said county and state, and to cause it to be suspected and believed by those neighbors, acquaintances, and citizens that the said plaintiff had been and was guilty of the offenses and misconduct hereinafter mentioned, to have been charged upon and imputed to him by the said defendants, and to vex, harass and oppress him, the said defendants, on the 25th day of June, 1942 *** falsely, wickedly and maliciously did compose and publish of and concerning"plaintiff, a certain letter addressed to Marvin R. Barker, Field Agent of the Division of Vocational Rehabilitation, in response to the letter written to Ficklen by said Barker, on June 17, 1942, in which letter Ficklen and defendant corporation, acting by and through Ficklen, its duly authorized agent, "falsely and maliciously" wrote concerning plaintiff, as follows:

"Dear Mr. Barker:

I have your letter of June 17, 1942, concerning Mr. E. M. Parker, who formerly worked for this company at Cabin Creek, West Virginia, asking our attitude towards giving this man work that he is capable of doing.

You state that Mr. Parker informed you that he worked for this company for twenty-nine years prior to the date of his injury.However, our payroll records show that he was employed on March 28, 1923, and that he was injured on March 18, 1938, which does not indicate that Mr. Parker worked for this Company twenty-nine years.

He was taken care of by this company for thirteen months at full pay and, for two and one-half months at $75.00 a month.He was then given an opportunity to take light work, but he was more interested in collecting total disability insurance which this company provided than he was in working.He brought suit against the insurance company, made an affidavit that he was totally disabled, got some doctors who were willing to cooperate with him in proving this claim, and the insurance company made a settlement with him.

This company feels a responsibility for the men who work for it, and inasmuch as Mr. Parker has no backlog left and cannot obtain any of the insurance which we provide to take care of men who become a liability to the company in the future, and in our opinion was not entitled to collect total disability insurance, we do not feel like assuming liability for him again.Our contract with the labor representatives of our employees requires us to pay any incapacitated employee for a period of three months in any calendar year.We paid this several times to Mr. Parker, and do not feel justified in taking him back under the conditions described above.Our record will show that we make every effort to provide work for incapacitated employees who are interested in working at such work as they can do.We consider that Mr. Parker's actions have severed his relations with this company.

Very truly yours,

W. F. Ficklen, Division Manager."

The declaration further alleges that plaintiff was not given any opportunity to take light work with defendant corporation; that defendants meant and intended by the Ficklen letter that plaintiff had "corruptly and unlawfully obtained money under false pretences from the insurance company by conspiring with doctors to establish a claim for total disability, and falsely and wickedly meant and intended that this plaintiff would not work at any type of work that he could do, and falsely and wickedly intended to mean that this plaintiff was not interested in working at such work as he could do", and also falsely meant and intended that plaintiff is without moral character or standing, but plaintiff's moral character is such as to make him unfit to associate with the moral and decent people of the community wherein he resides; and that said words of libel written by the defendants, from their usual construction and acceptation, are construed as insults and tend to violence and breach of the peace.

The demurrer asserts three grounds, which generally stated, are: (1) The Ficklen letter is a privileged communication; (2) that said letter does not contain any words or inferences from whose usual construction and common acceptation are construed as insults and tend to violence and breach of the peace, and, therefore, Code, 55-7-2, is inapplicable, but on the contrary the words contained therein from their usual construction and acceptation "were reasonable, proper and justified under the circumstances" and constitute no malice; and (3) the declaration states no cause of action.

The common pleas court, in overruling the demurrer, held, as shown by its written opinion filed in the record, that the Ficklen letter was written on a conditionally privileged occasion but whether or not the occasion was exceeded was a question for the jury and beyond the province of the court for decision.Upon certification the circuit court sustained this ruling but certified the case here for the reason, as indicated by the court's opinion contained in a...