Taylor v. McDaniels
| Decision Date | 24 September 1929 |
| Docket Number | 18772. |
| Parties | TAYLOR et al. v. McDANIELS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 12, 1929.
Syllabus by the Court.
A publication imputing impairment of mental faculties is libelous per se.
Under sections 304, 305, and 498, C. O. S. 1921, the burden is upon the plaintiff to allege and prove a publication of the matter alleged to be libelous, and the publication thereof is put in issue by a general denial.
There is no such "publication" of libelous matter as will support an action for damages, where the writing or delivering of the defamatory matter is invited or procured by the plaintiff or a person acting for him in the matter.
Where the matter alleged to be libelous was written at the solicitation of the agent of the plaintiff and delivered to the agent of the plaintiff, the same is in effect as though it had been written and delivered to the plaintiff himself and the same does not amount to such a "publication" as will sustain an action for damages.
Where libelous matter is written and delivered to an agent of the plaintiff, who thereafter exhibits the same to other persons at the request of the plaintiff, there is no such publication as will sustain an action for damages against the writer.
Where an individual is discharged by a railway company, and he thereafter procures the services of a friend to intercede with the railway company for his reinstatement, and in pursuance thereof the friend writes letters to the railway company or its officers soliciting leniency and reinstatement for the discharged individual, and the railway company or its officers, in response to such letters, states the reasons advanced by the officer of the company for refusing leniency and those reasons contain statements which are libelous per se, the writing and delivery of such letters to the friend of the discharged employee is not such publication as will sustain an action for damages.
Appeal from District Court, Carter County; John B. Ogden, Judge.
Action by Isom McDaniels against E. E. Taylor and another. Judgment for plaintiff, and defendants appeal. Reversed, with directions.
Rainey Flynn, Green & Anderson, of Oklahoma City, for plaintiffs in error.
Champion Champion & Fischl, of Ardmore, for defendant in error.
Isom McDaniels, who for a long time had been an engineer employed by the Gulf, Colorado & Santa Fé Railway Company, was discharged by that company on July 15, 1923, by E. E. Taylor, division superintendent, on account of the conduct of McDaniels. C. H. Van Fleet was given the position formerly held by McDaniels. Crawford was the representative of the Brotherhood of Locomotive Engineers as chairman of adjustments and maintained his headquarters at Cleburne, Tex. McDaniels was a member of the Brotherhood of Locomotive Engineers. After the discharge, McDaniels requested Crawford to write to Taylor and try to get McDaniels reinstated in the service. Crawford had considerable correspondence with Taylor and tried industriously to have McDaniels reinstated with the company on a basis of leniency. He represented McDaniels at an investigation held by the company at Ardmore, Okl. McDaniels also had other friends intercede in his behalf and communicate with Taylor and the company with reference thereto. McDaniels also wrote a number of letters and "importuned Mr. Crawford" practically every time he saw him to be reinstated.
On February 17, 1924, Taylor, for the railway company, in answer to a letter from Crawford concerning the reinstatement of McDaniels, wrote Crawford a letter containing a statement which is the basis of this litigation, as follows: And on July 12, 1924, in response to another request, wrote another letter containing a similar statement, as follows: The first letter was mailed from Cleburne, Tex., to Cleburne, Tex., and the second from Cleburne, Tex., to Gainsville, Tex. Thereafter McDaniels made a request to the engineer division at Cleburne to have Crawford appear before the division and bring his files, which request was communicated to Crawford. Crawford did not appear, but sent his files to the division in January, 1925. McDaniels first saw the letter of July 12, 1924, while the files were in the possession of the secretary of the lodge at Cleburne and about March, 1925. He procured it from the office of Crawford after the return of the files from Cleburne.
McDaniels then instituted a suit in the district court of Carter county against Taylor, Van Fleet, and the railway company charging a conspiracy to injure him and libel in the publication of the statements contained in the letters.
The trial court found and instructed the jury that there was no evidence of conspiracy, and that feature of the case will not be discussed further.
The allegations of libel in the petition were so interwoven with the allegations of conspiracy in a wrongful discharge from employment that it makes it difficult to separate the two. The trial court, in support of the allegations of conspiracy, permitted evidence to be introduced of McDaniels' connection with the railway company from his first employment up to and including his third discharge, and permitted testimony of his failure to procure other employment after the date of his discharge and prior to the date of the writing of either of the letters complained of. This was proper under the allegations of conspiracy, but had no relation to the charge of libel. When the court found that there was no evidence of conspiracy, this testimony was left in the record and no doubt had some influence with the jurors.
It appears from the evidence that McDaniels was unable to procure employment with other railway companies, but there is nothing in the evidence to indicate that that failure was due to the two letters complained of, and all the evidence indicates that it was due to the fact that he had been three times discharged by the railway company. McDaniels testified that he had made repeated efforts to procure employment with other railway companies after his last discharge, but there is nothing in the record to indicate whether those attempts were before or after February 17, 1924, and this court is unable to say that these attempts were not made between the date of the last discharge on July 15, 1923, and February 17, 1924, the date of the first letter. At least, there is no testimony that McDaniels ever made any attempt to procure employment with any other railway company after February 17, 1924.
The court permitted the introduction of a number of letters, over the objection of the defendants, among which we refer to one of McDaniels to Taylor dated November 1, 1923, and which contained many self-serving declarations, and which was so worded as to undoubtedly enlist the sympathy of the jurors for this man who had been discharged by the railway company.
This court is unable to determine just what effect this incompetent testimony had upon the minds of the jurors, but there is no doubt that it had some effect as disclosed by the record.
At the conclusion of the evidence of the plaintiff, the defendant Van Fleet demurred generally thereto, and the following transaction thereupon took place:
"By the Court: What do you say to that?
By Mr. Fischl: I think it is good.
By the Court: All right, I will sustain the Demurrer as to Mr. Van Fleet.
By Mr. Green: Comes now the defendant at this time, and moves the Court that they be given an opportunity to prepare a Petition and Bond for removal in this case to the Federal Court, for the reason that it now appears for the first time that there is a diversity of citizenship existing between the defendants, E. E. Taylor and the Gulf, Colorado and Santa Fé Railway Company, and the Plaintiff, McDaniels.
By the Court: What do you say to that, Mr. Fischl?
By Mr. Fischl: It has never been raised, if the Court please. They voluntarily entered their appearance in this Court without being served.
By the Court: What do you say, Mr. Green? As a lawyer, will you state to me frankly that you think your motion is any good?
By Mr. Green: I do.
By the Court: Why did you think about that after you had proceeded to come down here, and after they had offered all of their testimony?
By Mr. Green: Because there is a defendant in this case, Mr. Van Fleet, who was a resident of this State at the time this suit was brought, and because personal service was had upon him, and thereby the controversy was not one of diversity of citizenship. It appears now that for the first time there is a diversity of citizenship.
By the Court: Let the record show that I withdraw the former ruling and overrule the Demurrer as to this man, Van Fleet."
At the conclusion of all of the testimony, Van Fleet asked for a directed verdict, which was overruled. Thereupon the court instructed the jury that the evidence was insufficient to show any conspiracy. There had been no evidence introduced in this case connecting Van Fleet with the libelous matter in any way, and the only evidence as to Van Fleet was to show that he had been given the position formerly held by McDaniels. Yet, notwithstanding this fact, the jury returned a verdict...
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