Rigney v. W. R. Keesee &. Co. Inc

• Decision Date: 20 September 1927
• Docket Number: (No. 5906.)
• Citation: 139 S.E. 650
• Court: West Virginia Supreme Court
• Parties: RIGNEY. v. W. R. KEESEE &. CO., Inc., et al.

139 S.E. 650

RIGNEY.

v.W. R. KEESEE &. CO., Inc., et al.

(No. 5906.)

Supreme Court of Appeals of West Virginia.

Sept. 20, 1927.

(Syllabus by the Court.)

Error to Circuit Court, Mercer County.

Action by Millard H. Rigney against W. R. Keesee & Co., Inc., and another. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

Sanders, Crockett, Fox & Sanders, of Blue-field, for plaintiffs in error.

Ajax T. Smith, of Princeton, R. L. Parsons, of Bramwell, and John Kee, of Bluefield, for defendant in error.

HATCHER, P. This is an action of libel in which the plaintiff recovered a judgment of $2,500 in the circuit court of Mercer county.

The defendant company is a dealer in Dodge automobiles, its territory embracing Mercer county. Defendant H. X. Morton is its treasurer. It has a contract with W. W. Harloe and E. Cacy, trading as W. W. Harloe & Co., by which they sell automobiles for it at Matoaka. It has an agent, C. E. Cumbie, who sells automobiles for it in Bramwell. The plaintiff was an employee of Harloe & Co.

Some time before May, 1926, the defendant company wrote to Cacy that its agent Cumbie had complained to it of plaintiff interfering with his sale of Dodge automobiles in Bramwell, and stated that it did not desire any connection whatsoever with plaintiff. Later the defendant wrote the following letter, which contains the libel:

"W. W. Harloe & Co., Matoaka, W. Va.— Gentlemen: Information has come to us through our agent at Bramwell, W. Va., Mr. C. E. Cumbie, that you sold a Dodge Bros, sedan to Mr. Safewright, of Bramwell. We were further advised that this deal was effected through the medium of one Millard Rigney.

"Some weeks ago we wrote Mr. Cacy a letter requesting that he absolutely have nothing to do with Rigney—he is a bad character and can reflect nothing but discredit upon any organization, and if he were to offer his services to us free of charge we would have nothing whatsoever to do with him. Under the circumstances, we are surprised and chagrined that Mr. Cacy would disregard our requests in this matter. Mr. Cumbie is working for us, in Bramwell, in a sales capacity of 5 per cent. commission, and Mr. Safewright was a prospect of his—he had demonstrated a car to Mr. Safewright, and we understand that Mr. Rigney's policy is that if a man will buy a car through him he will give him one-half of his commission on same. As I wrote Mr. Cacy, this is not tolerated in our organization—no salesman is permitted to give a prospect any part of his commission. This sale is a violation of our contract with W. W. Harloe & Co., and we are going to insist in the most emphatic terms that you send us check at once for 5 per cent, commission, or $47.25, for Mr. Cumbie. This is the end of the argument as far as we are concerned, and we want to say to you, Dr. Harloe, that we are very sorry this instance has occurred to break into the friendly relationship that has already been established between us. Very truly yours, W. R. Keesee & Co., Inc., H. X. Morton."

The defendant company sent a copy of the letter to Cumbie, and he showed it to several friends who were teasing him about plaintiff taking away his prospects for sale of cars.

Some time after the letter was written, the plaintiff came to the office of Harloe & Co., bringing a Mr. O'Brien, of Bramwell, with whom he was negotiating the sale of an automobile. Cacy, explaining why he could not let plaintiff sell the car to O'Brien, produced the letter in question, and it was then read by O'Brien, as well as the plaintiff.

Morton testified that he never had entertained any ill will towards plaintiff, but that the letter was written solely through business reasons because it was his duty, as a dealer, to protect his agent Cumbie from infringement; that the copy was sent to Cumbie in order to let him know what was being done in his interest; that he never "dreamed" the letter would be seen by third party; and that his statement concerning plaintiff's character was based on information received from representatives of jobbing houses in Bluefield and Matoaka.

Error is charged to the trial court (a) in the giving and refusal of instructions, and (b) in the admission of evidence of republication of the letter by Cacy and Cumbie.

(a) Three instructions were offered by the plaintiff, and seven by the defendant, all of which were refused by the trial court. Thereupon the court upon its own motion gave four instructions. Instruction No. 1 given by the court is as follows:

"The court instructs the jury that in every instance of slander, whether verbal or written, malice is an essential ingredient and must be averred, but when averred, and the language, verbal or written, is proved, the law will infer malice until the proof in the event of denial be overthrown, or the language itself satisfactorily explained."

The letter from the defendant to Harloe & Co. was a communication upon a matter in which both parties, as well as Cumbie, were interested. Under settled law the communication was therefore qualiftedly privileged. Ward v. Ward, 47 W. Va. 766, 35 S. E. 873; 17 R. C. L. 341; Townshend, Slander and Libel, par. 209; Newell, Slander and Libel (4th Ed.) § 341. The question of privilege is for the court. Ward v. Ward, supra; Newell, supra, § 345. When a defendant establishes that the communication is one of qualified privilege, he is relieved of the implication of malice which accompanies communications not privileged, and the onus of proving malice is cast upon the plaintiff. In White v. Nicholls, 3 How. 266, 11 L. Ed. 591, after an exhaustive Investigation of the authorities on this subject, the Supreme Court of the United States concluded that in a case of privileged communication the plaintiff was required "to bring home to the defendant the existence of malice as the true motive of his conduct." That case was decided in 1845. The years between have brought no modification of the rule, announced in that opinion. Ward v. Ward, supra; Townshend, supra, § 209; Newell, supra, §§ 342 and 346; 17 R. C. L. 342; 36 C. J. § 205, p. 1241. A more comprehensive expression of this rule is given in Hansen v. Hansen, 126 Minn. 426, 427, 148 N. W. 457, L. R. A. 1915A, 104:

"The communication being privileged, the burden is cast upon plaintiff to show malice in fact; that is, that the defendant was actuated by ill will or improper motive, or that he acted causelessly and wantonly, to the injury of the plaintiff. When made on a privileged occasion, the law does not imply malice from the communication itself nor from its...