Stafney v. Standard Oil Company
| Decision Date | 30 July 1941 |
| Docket Number | 6747 |
| Citation | 299 N.W. 582,71 N.D. 170 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. The occasion and circumstances under which a communication said to be libelous is made determine whether such publication is privileged.
2. A communication required to be made, and made in a proceeding authorized by law, is a privileged communication.
3. Where such privileged communication is made to a department of the state in the discharge of a duty under express requirement of law, such communication, if pertinent to the issue, is absolutely privileged.
4. An absolutely privileged communication is one in respect of which, by reason of the occasion upon which it is made, no remedy can be had in a civil action of libel.
5. In the case of such an absolutely privileged communication, no one may inquire as to whether the utterer was actuated by malice.
6. Where the occasion and the attending circumstances under which such communication is made are not in dispute, the question of whether the communication is absolutely privileged is for the court to determine.
7. A communication made by an employer to the Unemployment Compensation Division of the Workmen's Compensation Bureau of this state, under the provisions of Chapter 232 of the Session Laws of 1937 requiring an employer to make out and deliver to the Bureau and to a discharged employee a statement required by the Bureau, showing the discharge of said employee and the reason therefor, is an absolutely privileged communication when made in the manner and form required by law, and can not be made the basis of any action for libel.
Appeal from District Court, Grand Forks County; M. J. Englert Judge.
Action by Jalmer B. Stafney against the Standard Oil Company, a corporation, and another, to recover damages for alleged libel. A jury returned a verdict for defendants and plaintiff made a motion for new trial. From an order granting the motion, defendants appeal.
Order reversed and action ordered dismissed.
Murphy Toner & Kilgore, for appellants.
Failure to specify wherein the evidence does not sustain the verdict is fatal and where there is such omission insufficiency of the evidence to justify the verdict cannot be considered on motion for a new trial. Feil v. N. W. German Farmers' Mut. Ins. Co., 28 ND 355, 149 NW 358; Bank v Bremseth, 60 ND 401, 234 NW 71; Lofthouse v. Bank, 49 ND 96, 190 NW 389; Dubs v. N.P.R. Co. 47 ND 210, 181 NW 606.
The specifications of particulars must stand as made on motion for new trial. They may not be amended. Larson v. Friis, 48 ND 507, 185 NW 362; Kanable v. Great Northern R. Co. 45 ND 619, 178 NW 999.
The arbitrary unjustified granting of a new trial will be corrected by the appellate court. Kohlman v. Hyland, 56 ND 772, 219 NW 228; Olson v. Riddle, 22 ND 144, 132 NW 655.
Orders granting new trial on questions of law are not discretionary. Eddy v. Wells, 59 ND 663, 231 NW 785; Davenport v. Firemen's Ins. Co. 47 SD 426, 199 NW 203; Thompson v. Butler, 223 Iowa 1085, 274 NW 110; Plucker v. Chicago, M. & St. P.R. Co. 52 SD 554, 219 NW 254.
A qualifiedly privileged communication is inconsistent with the existence of express or actual malice, and requires both the occasion of privilege and the use of that occasion, in good faith, and is actionable only if the communication is actuated by express malice. 36 CJ § 167; Froslee v. Lund's State Bank, 131 Minn 435, 155 NW 619; 17 RCL 1143; Lauder v. Jones, 13 ND 525, 101 NW 907; Miller Ins. Co. v. Home Ins. Co. 51 P.2d 628; Raymond v. Croll, 233 Mich. 268, 206 NW 556; Growthon v. Wilkes, 100 So 673; Gilbertson v. State, 205 Wis 168, 236 NW 539; State v. June (Mo) 203 SW 465.
Error in admitting or excluding evidence of a fact otherwise satisfactorily proven by admissible evidence, or by inadmissible evidence unobjected to, is not ground for a new trial. Milliren v. Federal L. Ins. Co. 186 Minn 115, 242 NW 546; Sharples v. Skinner, 251 F 25; Underdown v. Desha, 219 SW 19; Thomas v. Chapin, 113 NE 82.
When the veracity of a witness is subject to challange because of motive to fabricate, it is competent to put in evidence statements made by him consistent with what he says on the stand made before the motive arose. Di Carlo v. United States, 6 F.2d 364.
Writings may become a part of the res gestae and admissible in evidence where they are incidents of a transaction and part thereof. 20 Am Jur 556; Indem. Ins. Co. v. Krone, 9 S.W.2d 33, 60 ALR 1493.
A memo which is a part of the res gestae is admissible. 14 Ency. Evidence, 930; Fargo Mercantile Co. v. Johnson, 47 ND 304, 181 NW 953.
A statement constituting a part of the res gestae may be self-serving and yet that fact may not render it inadmissible. Bennette v. Hader (Mo) 87 S.W.2d 413, 101 ALR 1190; Jennings v. United States, 73 F.2d 470.
Chas. A. Lyche, for respondent.
Before such entries (in books or other permanent records) are admitted the court shall be satisfied that they are genuine and in other respects within the provisions of Comp Laws 1913, § 7909. See Miller v. National Elevator Co. 32 ND 562, 155 NW 871; 20 Am Jur § 1043; Northern Trust Co. v. First Nat. Bank, 33 ND 1, 156 NW 302; Starke v. Stewart, 33 ND 359, 157 NW 302; Weigel v. Powers Elevator Co. 49 ND 87, 194 NW 113.
When a document is admitted on this ground, it must constitute (1) a book of accounts or (2) a regular record entry, otherwise its admissibility is governed by the rules applicable to memoranda. Dickinson v. White, 25 ND 523, 143 NW 754; Baird v. National Surety Co. 54 ND 91, 209 NW 953; Spies v. Stang, 56 ND 674, 218 NW 860; Hughes v. Wachter, 61 ND 513, 238 NW 776; Baldwin Piano Co. v. Wylie, 63 ND 216, 247 NW 397.
A memorandum is only secondary evidence of the facts of which it speaks, the primary evidence being the knowledge of the witness. 20 Am Jur § 1043; Manchester v. Oregon, 46 Or 162, 79 P 60; Wigmore, Evidence, 2d ed §§ 726, 735 and 758; Weaver v. Bromley, 65 Mich. 212, 31 NW 839.
A former consistent statement helps in no respect to remove such discredit as may arise from contradiction by other witnesses. 4 Wigmore, Evidence, 3d ed §§ 1127, 1129; Kesserling v. Hummer, 130 Iowa 145, 106 NW 501; Brown v. People, 17 Mich. 429.
Testimony may be inadmissible as hearsay, notwithstanding it is the declaration of the witness upon the stand. 20 Am Jur 458.
Evidence of prior inconsistent statements of a witness whose credibility has been attacked by showing that he has previously made statements inconsistent with his testimony is generally inadmissible. 28 RCL 654, § 238; Lingenfelter v. St. Clair, 179 Iowa 11, 161 NW 87.
Instructions which, taken as a whole, are calculated to mislead the jury as to the character of the evidence necessary to prove the issue on one side are erroneous. Rea v. Missouri, 17 Wall. (U.S.) 532, 21 L ed 707.
Reversible error exists if the general effect of a charge tends to withdraw from the consideration of the jury material evidence. Hall v. Weare, 92 U.S. 728, 23 L ed 500.
If an instruction fails to present with sufficient distinctness a material fact which may have a controlling effect, there is ground for reversal. Ayers v. Watson, 113 U.S. 594, 28 L ed 1093, 5 S.Ct. 641.
It is error for the court to submit the evidence and theory of one party prominently and fully to the jury and not call their attention to the main points of the opposite party's case. Canal Co. v. Harris, 101 Pa 80; Reichenbach v. Ruddach, 127 Pa 564; Young v. Merkel, 163 Pa 513.
Where a party exceeds his privilege and the communication complained of goes beyond what the occasion demands that he should publish, and is unnecessarily defamatory of the plaintiff, he will not be protected, and the fact that a duty, a common interest, or a confidential relation existed to a limited degree is not a defense, even though he acted in good faith. Landon v. Watkins, 61 Minn 137, 63 NW 615; 25 Cyc 386.
Where the evidence taken together as a whole, being contradictory, preponderates against the verdict, a new trial will be granted. Fuller v. Northern P. Elevator Co. 2 ND 220, 50 NW 359; Rafferty v. People, 72 Ill 37.
A charge against an employee of dishonesty and unfaithfulness to his employer is libelous per se. Sunley v. Metropolitan L. Ins. Co. 132 Iowa 123, 109 NW 463, 12 LRA(NS) 91.
The granting of a new trial rests in the sound discretion of the trial court and its action will not be disturbed on appeal unless there is an abuse of discretion. Martin v. Parkins, 55 ND 339, 213 NW 574; Equity Elevator & Trading Co. v. Farmers' & M. Bank, 64 ND 95, 250 NW 529; Baird v. Unterseher, 57 ND 885, 224 NW 306; Kohlman v. Hyland, 56 ND 772, 219 NW 228; Butler v. AEtna Ins. Co. 64 ND 764, 256 NW 214; Bradley v. Krogen, 67 ND 108, 270 NW 214.
The defendants appeal from an order granting a new trial.
The plaintiff seeks to recover damages for alleged libel. He was an employee of the defendant company, and alleges that on or about April 24, 1939, the defendants published and circulated, "under the false and malicious pretense of making a legal report, the false, scandalous, malicious, defamatory and libelous matter, referred to and stated in a certain paper, filed with the Workmen's Compensation Bureau of the State of North Dakota, a copy of which is marked 'Exhibit A', hereto attached and made a part hereof."
Exhibit A is as follows:
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