Rivers v. Yazoo & Mississippi Railroad Company

• Decision Date: 08 April 1907
• Citation: 90 Miss. 196,43 So. 471
• Parties: JOHN RIVERS v. YAZOO & MISSISSIPPI RAILROAD COMPANY
• Court: Mississippi Supreme Court

43 So. 471

90 Miss. 196

JOHN RIVERS v. YAZOO & MISSISSIPPI RAILROAD COMPANY

Supreme Court of Mississippi

April 8, 1907

March 1907

FROM the circuit court of Yazoo county, HON. DAVID M. MILLER Judge.

Rivers appellant, was plaintiff in the court below; the railroad company, appellee, was defendant there. From a judgment in favor of defendant, the plaintiff appealed to the supreme court.

Plaintiff's suit, as originally filed, was for slander, his declaration being in two counts, each of which set out certain alleged slanderous words uttered, June 7, 1905, concerning him by an employe of the railroad company. The declaration was filed June 1, 1906, the suit being instituted within a few days of the expiration of one year following the speaking of the words. Code 1892, § 2742, reads as follows: "All actions for slanderous words concerning the persons or title and for libels, shall be commenced within one year next after the cause of such action accrued, and not afterwards."

Subsequently October 31, 1906, before pleas filed by the defendant, plaintiff filed an amended declaration, containing four counts; the first one set out a letter written jointly to the chief engineer, the roadmaster and chief time checker, of defendant, by one of its employes, whose duty it was to investigate the records and inspect the work of plaintiff, the plaintiff being a section foreman of the company; the contents of which letter, plaintiff alleged, were false and libelous and injurious to his reputation. The letter was alleged to have been written June 7, 1905 (more than a year before the filing of the amended declaration, but less than a year before the filing of the original declaration based solely on slander). The last three counts set out certain alleged slanderous words uttered by an employe of defendant concerning plaintiff, in the absence of plaintiff, and in the presence of others, two of these three counts being reiterations of the two counts in the original declaration.

To the first count of the amended declaration, being for libel based on the letter mentioned, the railroad company filed special pleas, the third plea, referred to in the opinion, being "that the cause of action did not accrue within one year from the filing of the said amended declaration, and the same is barred by the statute of limitation." The plaintiff demurred to this special plea, but the circuit court overruled the demurrer.

To the second, third and fourth counts of the amended declaration the defendant company demurred on the following ground: "That the said counts are for alleged slander by an. employe of defendant, and it nowhere appears in said counts that said alleged slanderous words were uttered and published with knowledge of the defendant, or with its approval or consent, or that the same were ever ratified by the defendant." The circuit court sustained the demurrer. And, as the plaintiff declined to plead further, judgment final was rendered in favor of the railroad company.

Judgment reversed and cause remanded.

Henry, Barbour & Henry, for appellant.

The amended declaration contains four counts, to the first of which the appellee railroad company interposed the statute of limitation, Code 1892, § 2742, as a plea, and to this the appellant demurred, and the demurrer was by the lower court sustained. We do not care to argue this feature of the case here.

To the second, third and fourth counts in the amended declaration the appellee demurred on the ground that the counts are for alleged slander by an employe of the railroad company, and the counts do not show that the alleged slander was uttered and published with knowledge or approval of the railroad company, or that the same was ever ratified by the appellee.

The count in the amended declaration upon which we most particularly rely, is that which alleges that B. Gilleas, roadmaster of the railroad company for the Louisiana division, and having authority over appellant, maliciously and falsely stated in the office of the appellee in Jackson, Mississippi, in the presence and hearing of others, and in the absence of appellant, that "the old of a is stealing, and I want him discharged"; whereby appellant's reputation was brought into ill repute.

The authorities cited by appellee in support of the demurrer are, principally, Townsend on Slander, § 265; 18 Am. & Eng. Ency. Law (2d ed.), 1057; and 10 Cyc. 1216. Replying to these authorities we say that the Encyclopedia cited refers to the following cases to support the text, to-wit, Childs v. State Bank, 17 Mo. 213. Our court in Williams v. Planter's Insurance Co., 57 Miss. refused to follow the Childs case. Moreover, the Missouri court said, subsequently, that "since the Childs case there have been complete changes in the law." Iron Mountain Bank v. Merchants Bank, 4 Mo. App., 505. Another case cited to support the text of the Encyclopedia is Hussey v. Norfolk, etc., R. R. Co., 98 N.C. 34, 2 Am. St. Rep., 312. But this case, instead of supportng the text, holds to the contrary, as will be seen on casual examination of the same, and, moreover, cites Williams v. Planters' Insurance Co., supra. Townsend on Slander, sec. 265, relied on by opposing counsel, cites only two authorities for the writer's views. These two cases are Maloney v. Bartley, 3 Camp., 210 (an English case), and Hacker v. DeCrott, 15 How. Prac., 104. Neither of these cases in any way sustains the text, as will be apparent from a careful reading of the opinion in each case.

The only pertinent case cited by counsel for appellee, so far as we have been able to ascertain after thorough examination of the case, is Behre v. National Cash Register Company, 100 Ga. 214, 27 S.E. 986; and that case relies upon Townsend on Slander, sec. 265, cited by appellee, without any other authority and without discussion of the proposition or satisfactory reasons for the opinion of the court.

We insist that the question is practically settled in this state by the case of Brooks v. Railroad Company, 69 Miss. 168, 13 So. 847, and Williams v. Planters' Insurance Company, 57 Miss. 579, and by Richberger v. Express Company, 73 Miss. 161, 18 So. 922.

As regards our contention that the second, third and fourth counts of the amended declaration constitute good causes of action, we refer to the following authorities:

Sawyer v. Norfolk S. R. Company (N. C.), 54 S.E. 793, where the court said: "There is some authority for the proposition that a corporation cannot be held civilly liable for slander. And it has been also held that they are only so responsible when they expressly uttered the very words which form the basis of the charge. But it is now well established that private corporations under certain circumstances will be held liable for torts, both negligent and malicious, upon the part of their employes and servants."

Hussey v. Railroad Company, 2 Am. St. Rep., 312. This was a case in which the complaint charged that the defendant company had maliciously slandered the plaintiff. There was a demurrer which admitted that the agent of the railroad company had uttered the words, and the appellate court held, on the demurrer, that the defendant was liable.

Peterson v. W. U. Telegraph Company, 74 Am. St. Rep., 502. This case holds that a corporation will be held liable for the malicious libeling of a person. And to the same effect is Hoboken, etc., R. R. Co. v. Kahn, 59 Am. St. Rep., 286, and notes.

Fogg v. Boston, etc., R. R. Co., 12 Am. St. Rep., 586. This was a case where the defendant's ticket agent posted a notice in the defendant's ticket office defamatory of the plaintiff. Held, that the defendant company was liable even though the defendant's agent was acting in excess of his authority.

Honey Mfg. Co. v. Perkins, 43 N.W. 1075. This case holds that a partnership is liable for a slander uttered by one of the members when about the firm's business. And it is held, in Glass Co. v. Pault, 13 So. 800, that the liability of a partnership will be the same as that of a corporation, as regards torts.

Palmeri v. Manhattan R. R. Co., 16 L. R. A., 136. This was a case where the plaintiff was publicly slandered by the defendant's ticket agent in its office, and detained in the office. The defendant was held liable both for slander and for false imprisonment.

Bacon v. Michigan Central Railroad Co., 21 N.W. 324, 54 Am. St. Rep., 372, is directly in point. The plaintiff was discharged by the defendant from employment in its service, and notice was sent by the roadmaster of the defendant to the other officers of the company, assigning as reason of the discharge, the single word, "stealing." This was held to be sufficient publication.

The amended declaration states that the slanderous words were spoken by the agent of the railroad company while acting in the scope of his employment and in the performance of his principal's duties. The lower court should have held that on the pleadings the railroad company was liable for damages. Jordan v. A. G. S. R. R. Company, 74 Ala. 85, 49 Am. Rep., 800; Richberger v. Express Company, 73 Miss. 161, 18 So. 922, 31 L. R. A., 390.

Mayes & Longstreet, and Chas. N. Burch, for appellee.

In considering the issues of law here concerned, it is important to have clearly in mind the facts and the dates shown in the pleadings. The appellant filed his declaration on June 1 1906, for recovery of damages from the appellee on account of certain alleged slanders averred by the declaration to have been uttered and published about him by one Sullivan, and others, employes of the appellee. The first count of this declaration alleged that Sullivan, in the employ of appellee, maliciously and falsely said, in the absence of appellant, and in the presence of several persons,...