Slaughter v. Valleydale Packers, Inc., of Bristol

• Decision Date: 04 September 1956
• Docket Number: No. 4484,4484
• Citation: 94 S.E.2d 260,198 Va. 339
• Court: Virginia Supreme Court
• Parties: ARTHUR P. SLAUGHTER v. VALLEYDALE PACKERS, INCORPORATED, OF BRISTOL. Record

Page 260

94 S.E.2d 260

198 Va. 339

ARTHUR P. SLAUGHTER v. VALLEYDALE PACKERS, INCORPORATED, OF BRISTOL.

Record No. 4484.

Supreme Court of Appeals of Virginia

September 4, 1956.

H. E. Widener, H. E. Widener, Jr. (Widener & Widener, Warren & Warren, on brief), for the plaintiff in error.

Waldo G. Miles (Fred C. Parks, Jones, Woodward & Miles, on brief), for the defendant in error.

JUDGE: SMITH

SMITH, J., delivered the opinion of the court.

This is an action for insulting words and slander instituted by Arthur P. Slaughter, referred to herein as plaintiff, against Valleydale Packers, Incorporated, of Bristol, referred to herein as defendant. A jury trial resulted in a verdict and judgment for defendant, to which judgment we awarded plaintiff a writ of error.

The alleged defamatory statements were made by persons employed by the defendant and were to the effect that plaintiff had been selling for human consumption inedible meat from animals which had not been butchered; that plaintiff had been arrested by the F.B.I. and placed under bond of $20,000 or $30,000, and was awaiting trial for his fraudulent conduct.

Plaintiff contends that the trial court erred: (1) in not setting aside the verdict, entering judgment for him as to liability, and ordering a new trial on the issue of damages; (2) in granting and refusing certain instructions, and (3) in admitting certain evidence.

Defendant admits that the alleged defamatory statements were 'false, insulting, slanderous and actionable per se,' and that plaintiff was damaged thereby. The only defense asserted by defendant is that it is not liable to plaintiff because the defamatory statements of its employees were not made in the ordinary course and scope of their employment.

Plaintiff is a business man of admittedly good reputation and at the time the defamatory statements were made he was engaged in the business of buying and selling cured hog meat, hides and grease in and around Bristol. He did not sell any fresh meat and did no butchering. He had, however, until about six months before the defamatory statements were made, operated a rendering plant at which he produced and sold hides, grease and tankage or meat meal which is made from the inedible parts of animals and is used as feed for certain domestic animals.

Defendant is a wholly owned subsidiary of Valleydale Packers of Salem, a closely owned Virginia corporation. Defendant produces and sells meat products, fresh meats, smoked and cured meats, and as by-products, hides, grease, tallow and tankage. Of its total sales only about twelve percent are made in and around Bristol.

On September 3, 1953, J. L. Rogers, who was plant manager, secretary and treasurer, as well as a director and stockholder, of the defendant, went to the livestock market at Abingdon to buy heifers and cows for defendant. While waiting around the market for the sale to begin, Rogers sat down beside Ballard B. Huff, a cattle dealer, and related to him the defamatory story concerning plaintiff. When Huff said he did not believe plaintiff would do anything like that, Rogers said he did not believe it either and got up and went about 30 feet to where Earl W. Sell, also a cattle dealer, was sitting and sat down beside him and told him substantially the same story. Sell said he did not believe the story and Rogers replied, 'I don't believe it either. I think Mr. Slaughter ought to know. ' Shortly thereafter Rogers got up and left.

In describing his duties and the 'general managerial set-up' of defendant's business, Rogers testified that he was 'over the whole plant' of about 130 employees, including the sales manager, production superintendent and cattle buyers. He further testified that he first heard the defamatory story from one of defendant's salesmen in the latter part of August 1953; and he also stated that he thought plaintiff was still operating his rendering plant on September 3, 1953, the date of his conversations with Huff and Sell.

Both Huff and Sell testified that they first heard the report about plaintiff from Rogers. But Sell stated that within two or three days thereafter he heard the story from meat dealers in Johnson City and Kingsport, and Huff testified that when he returned to the livestock market at Abingdon the next week, the rumor was widespread and was being generally discussed by the crowd at the market.

The motion for judgment alleged and the evidence shows that in addition to Rogers three other persons in the employ of defendant uttered during their working hours the slanderous and insulting story concerning plaintiff. These employees were Charles Wood and Charles Jessee, salesmen, and Sam A. Wagner, foreman in the defendant's inedible meat department.

Wood related the story to two of his customers, after he had received orders from them for defendant's meat products, but before leaving their presence. On one occasion two persons other than the customer were present and when one of them said he did not believe the story Wood offered to bet him $20 that it was true, or as he testified, 'that I was truthfully telling the rumors I heard.'

Jessee testified that he related the rumor to one of his customers, after receiving an order from him but before leaving the customer's store.

Wagner told the defamatory story to Charlie Burnette, a farmer and trucker, while Wagner was checking and Burnette was loading 150 bags of tankage on his truck at defendant's plant in Bristol.

A motion by defendant to strike the evidence was overruled, to which ruling defendant has not assigned cross error. Thereafter, plaintiff offered and the court granted, without objection by defendant, Instruction No. 1, which therefore became the law of the case. That instruction reads as follows:

'The court instructs the jury that the employer, Valleydale Packers Incorporated of Bristol in this case is liable for the wrongful acts, if any, of its employees, Rogers, Wood, Wagner, and Jessee, while they are acting in the ordinary course of their employer's business and within the scope of their employment. And so if you believe from the preponderance of the evidence that Rogers, Wood, Wagner and Jessee, or any one or more of them, while acting in the scope of their employment and in furtherance of the defendant's business maliciously and falsely spoke of and concerning the plaintiff substantially the words sued upon, and if you believe from the evidence that such words from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace, then they are actionable; that is to say the plaintiff, Arthur P. Slaughter has the right to sue the defendant, Valleydale Packers Incorporated of Bristol therefor and to recover such damages as the jury may think proper under all the circumstances of the case, the amount of such damages to be determined upon the principles laid down in the other instructions herein, but not to exceed $100,000.00, the amount claimed by plaintiff in his action.'

In Davis v. Merrill, 133 Va. 69, 77, 112 S.E. 628, this court quoted with approval from 2 Mechem on Agency (2nd ed.), § 1960, the following definition of 'scope of employment':

''In many cases, no better definition can be given than the words themselves suggest. But, in general terms, it may be said that an act is within the scope of the employment if (1) it be something fairly and naturally incident to the business, and if (2) it be done while the servant was engaged upon the master's business and be done, although mistakenly or ill-advisedly, with a view to further the master's interests, or from some impulse or emotion which naturally grew out of or was incident to the attempt to perform the master's business, and did not arise wholly from some external, independent, and personal motive on the part of the servant to do the act upon his own account.' ' (Italics supplied). Cary v. Hotel Rueger, Inc., 195 Va. 980, 81 S.E.2d 421; Tri-State Coach Corp. v. Walsh, 188 Va. 299, 49 S.E.2d 363.

In the recent case of Alvey v. Butchkavitz, 196 Va. 447, 453, 84 S.E.2d 535, we said: 'The difficulties experienced in scope of employment cases usually arise in applying the generally accepted legal test to the factual situation in the particular case under consideration. In Appalachian Power Co. v. Robertson, 142 Va. 454, 456, 129 S.E. 224, we said: 'While the law upon this question appears to be simple, there has always been very great difficulty in its application, and it has been frequently said that it is impossible to state it briefly and comprehensively so as to be clearly applicable to all cases, because of the ever- varying facts and circumstances of particular cases.'

'We have repeatedly held that where the relationship of master and servant has been established the burden is on the master to prove that the servant was not acting within the scope of his employment when he committed the act complained of, and that if the evidence leaves the question in doubt it becomes an issue to be determined by the jury. [Citing cases].

'Thus we subscribe to the holding that if the deviation from the master's business is slight on the one hand, or marked and unusual on the other, the issue is for the court to decide; whereas, if the facts in the particular case place the question between these two extremes, the question becomes a factual issue for the jury. ' (Citing cases).

In Crowell v. Duncan, 145 Va. 489, 501, 134 S.E. 576, 50 A.L.R. 1425, this court said:

'Where it is doubtful whether a servant in injuring a third person was acting within the scope of his authority, the doubt will be resolved against the master because he set the servant in motion, at least to the extent of requiring the question to be submitted to the jury. ' Alvey v. Butchkavitz, supra; McNeill v. Spindler, 191 Va. 685, 62 S.E.2d 13.

In the light of these rules of law and Instruction No. 1, we hold that under the facts and circumstances of the...