Stewart v. Riley
| Citation | 172 S.E. 791,114 W.Va. 578 |
| Decision Date | 06 February 1934 |
| Docket Number | 7750. |
| Parties | STEWART v. RILEY et al. |
| Court | Supreme Court of West Virginia |
Syllabus by the Court.
Superintendent's statement that it looked like injured employee had cut his fingers off purposely, made when inquiring of other employees as to circumstances of injury, held made on privileged occasion, as regards liability for slander.
Where no conflict in testimony exists as to circumstances under which allegedly de-defamatory words were spoken, question whether occasion was one of qualified privilege is for court.
Superintendent's statement that it looked like injured employee had cut his fingers off purposely, made while inquiring of other employees as to circumstances of injury, held within scope of qualified privilege, as regards liability for slander.
If undisputed evidence shows that allegedly defamatory words were spoken on qualifiedly privileged occasion and no conflict exists as to words spoken, question whether words were within scope of privilege is for court.
Where alleged defamatory words are spoken on privileged occasion and are within scope of privilege, question whether utterance was malicious is for jury.
Where superintendent stated that it looked like injured employee had cut his fingers off purposely, while inquiring of other employees as to circumstances of injury, whether superintendent's utterance was malicious held for jury.
1. When, in an action for slander, there is no conflict in the testimony as to the circumstances under which the allegedly defamatory words were spoken, the question of whether the occasion was one of qualified privilege is one of law for the court.
2. If in an action for slander, the undisputed evidence shows that the allegedly defamatory words were spoken on a qualifiedly privileged occasion, and there is no conflict as to the words spoken, the question of whether such words were within the scope of the privilege shown is one of law for the court.
3. Given a privileged occasion and words within the scope of the privilege as established facts, the question of whether the utterance was malicious is for the jury.
Error to Circuit Court, Wyoming County.
Action by Luther Stewart against W. F. Riley and the Morrison Coal Company. The trial directed a verdict as to the last-named defendant. To review an adverse judgment, W. F. Riley brings error.
Judgment reversed, and cause remanded for a new trial.
Bailey & Shannon, of Pineville, and Blue, Dayton & Campbell, of Charleston, for plaintiff in error.
Rollins & Rollins, of Charleston, for defendant in error.
This is an action of trespass on the case brought by Luther Stewart by reason of allegedly slanderous words injurious to the plaintiff's trade, office, or employment uttered by W. F Riley. The defendants in the circuit court of Wyoming county were W. F. Riley and Morrison Coal Company, a corporation. The trial court directed a verdict as to the corporation. No error is cross-assigned on this account. To a judgment for $350 against the defendant W. F. Riley, this writ of error is prosecuted.
Admittedly the plaintiff, while working at the Glen Morrison operation of Morrison Coal Company, lost the index and second fingers of his left hand. Plaintiff's contention is that he lost his fingers by accidentally striking them off with an ax while trimming the cap board of a prop he was about to place in his working room in the mine. The injury occurred on May 14, 1932, while the defendant W. F. Riley was employed as general superintendent by that company, and while he was stationed at Glen Morrison. The Morrison Coal Company was a subscriber to the compensation fund. The injury was at once reported to W. M. Thompson, the assistant mine foreman, who was inside the mine near the scene of the accident. He, with Worley Walker and another, after Stewart had been sent outside, went at once to the place of the accident. As soon as the plaintiff was brought out of the mine, W. A. White, the general mine foreman, was informed of the accident, and, immediately after causing the plaintiff to be taken to the hospital, entered the mine for the purpose of investigating the circumstances of the injury. Having done so, he returned to the outside within about an hour and a half after the injury, and reported to the defendant Riley, the superintendent, circumstances from which he concluded, and from which Riley concluded, that the plaintiff likely had come to his injury by deliberate means. After the report of the circumstances of the accident was made to the defendant Riley, he is alleged to have said on that same day in the presence of witnesses that the plaintiff had cut his fingers off purposely. There is some conflict in the proof as to just what Riley did say, his own testimony indicating that his statement was to the effect that it looked like plaintiff had cut his fingers off purposely. Plaintiff and other witnesses testify that he made this statement as a direct charge and that he did not qualify it. However, there was no denial of his having made a statement substantially as alleged in plaintiff's declaration. The declaration is confined to the one utterance of May 14, 1932, seeking recovery on that statement alone.
No point is made on this writ of error that the words allegedly slanderous were not uttered by Riley. Neither was the truth of the words pleaded. Defamation of the kind alleged is actionable per se, and no special damages need be alleged or proved in order for plaintiff to recover. Hancock v. Mitchell, 83 W.Va. 156, 98 S.E. 65.
The defense is that the trial court erred in not considering the words qualifiedly privileged, and, inasmuch as no malice was shown, in not, on that account, instructing the jury to return a verdict for the defendant Riley. Plaintiff in error says that, in any event, the trial court should have instructed the jury that the defendant Riley stood in a relationship entitling his statements to be qualifiedly privileged, that the occasion upon which they were uttered was a privileged occasion, and should have submitted to the jury, under proper instructions, the question of whether the words assigned as actionable were uttered in a manner showing them to have been actuated by malice.
The second point of error is assigned in the refusal of the trial court to admit an order subsequently entered by the workmen's compensation commissioner refusing compensation to Stewart because of the fact that this injury, in the opinion of the commissioner, was self-inflicted.
To the main defense, that of qualified privilege, the defendant in error counters (1) that there was no privilege, and (2) that, if there was a qualified privilege, Riley, as a matter of law, exceeded its bounds by an unnecessarily defamatory statement, and that, if this is not so, then the statement was made with malice.
To the second proposition, the defendant in error simply says that the order of the workmen's compensation commissioner is not relevant.
We are not, of course, here concerned with the question of absolute privilege. The defense rests upon qualified privilege. It seems to be quite clear from the decided cases that, in order for the defendant to get the benefit of qualified privilege and in order for that privilege to bar recovery, two things must combine: First, the occasion upon which the words are spoken must be a privileged occasion; and, second, the occasion being privileged, the communication must have been made legitimately within the privilege that existed. Where these two elements are established in defense, the burden shifts back to plaintiff to show actual malice. Rigney v. Keesee & Co., 104 W.Va. 168, 171, 139 S.E. 650, 54 A.L.R. 1139.
Reporting the circumstances of injuries that take place in the course of their business is directly enjoined upon the subscribers to the compensation fund by the statute itself. Code, 23-2-2 3. In addition, the premiums to be paid by a subscriber into the fund are based partly upon the accident experience...
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