True v. Southern Ry. Co.
| Decision Date | 17 March 1931 |
| Docket Number | 13094. |
| Citation | 157 S.E. 618,159 S.C. 454 |
| Parties | TRUE v. SOUTHERN RY. CO. et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Richland County; S.W. G Shipp, Judge.
Action by T. W. True against the Southern Railway Company and others. From judgment of nonsuit, plaintiff appeals.
Affirmed.
Ruling of judge in passing upon the motion of nonsuit, requested to be reported, follows:
The Court: Mr. Robinson, I understand now that you--I know it has been put in evidence, but did you offer in evidence the agreement between the Railway Conductors and the Southern Railway.
Mr Robinson: I offered in evidence that rule thing. I don't call it an agreement--the rule which they plead in the answer.
The Court: I mean the agreement or rule or whatever it is about them giving notice that they would have a trial? Did you introduce that in evidence?
Mr Robinson: The rule says they will give me a hearing before they discharge him.
The Court: I want to know whether you put it in evidence?
Mr Robinson: Yes sir; I put it in. They called for it in their notice and they plead it in their answer.
The Court: Well, now, here's the question, I want to ask you. Have you any case in which--now the publication in this case complained of--the only publication in evidence is the publication made to the Board of Inquiry. Now that is the publication that you are complaining of, is the publication made to the Board of Inquiry. As I understand this testimony and I have not heard any testimony of any publication, because these affidavits were never published. They were sent from the agents that collected them under the direction of the authorities to the authorities themselves. Now, under all the law and all the decisions that is privileged. They have this investigation and they have a right to do that. Now, the gist of this action is malice in the publication. Now, here is a case in which by agreement, they have agreed that this board of inquiry should be called and that he cannot be discharged until the matters they have against him are presented to the Board of Inquiry. That has been agreed on in the rules. Here is a case in which the publication is made for his benefit, in order to give him an opportunity to answer the charges. Now, have you got any case where the parties have agreed now that the publication shall be made under those circumstances?
Mr. Robinson: No, sir; I have no such authority as that, and I have no such agreement as that.
The Court: Well, you introduced it.
Mr. Robinson: This is how the rule reads: "Conductors, flagmen, baggagemen, brakemen, yardmen and switchtenders will not be discharged or demerited without an investigation, which will be made by proper officers within five days, if possible, and in their presence."
That is the rule. Now, who are the proper officers for instance. The testimony is now that Mr. Cooper was to act, if Mr. Stanfiel didn't, but both were here. Now here is an investigation of matters six years old. Can it be said that this falls within this agreement?
The Court: There is nothing said in the complaint, Mr. Robinson, about his agreement at all?
Mr. Robinson: Not a word, sir.
The Court: The complaint alleges a conspiracy and then alleges that they had a trial. It doesn't say that it was done in accordance with the rules of the company at all. My idea about it is this. I have been governed entirely by the Switzer case, which is the law of this State, no doubt, but however, the investigation in that case was entirely ex parte and the publication was made to a person unauthorized to hear it.
Now, here's a case in which under the rules that you have introduced, which is not in your complaint. Under the rules that you have introduced here, the publication of which you complain is made not to unauthorized persons, but to persons that constituted the Board of Inquiry.
Mr. Robinson: Upon what does your honor base that statement, that they are the people authorized to hear it? All of those men who sat there--what evidence is there--what evidence is there of that now, if your honor please?
The Court: Well, there is no complaint in your complaint. You have introduced these rules and I assume the Court was made in accordance with the rules there, which you have introduced.
Mr. Robinson: The rules did not say who was to compose it and I do charge here as to who did compose it.
The Court: You didn't say anything in the complaint about the rule at all?
Mr. Robinson: Not a thing.
Mr. Tompkins: Never made any complaint at the hearing. True testified that he made no complaint against any man in the hearing.
The Court: My understanding of the law is that the publication upon which you can complain would be against somebody that is not authorized to hear it. Here is a case in which the investigation was made. If it had not been for this rule, the railroad company could discharge a man without giving him any reason in the world, wouldn't have to say a word, except discharge him and wouldn't publish it, but now here is a rule made for the benefit of the railroad employees--the conductors. It is made for their benefit. They are allowed to have counsel; they are allowed to appeal the case from that decision and it is made to people, a court that is provided for in the rule and it seems to me it would be--if they provided now that they may have an investigation, but this says they shall not be discharged without an investigation and every time they have an investigation they must subject themselves to a suit. I don't think that is the intent of the agreement. I have thought about that very seriously during the night and I have had that case before me and there is a great difference between the two cases. In the Switzer Case it is entirely ex parte. In this case publication was made by the rule or agreement or whatever you call it, on notice and there is no objection made and no publication except to the persons in the Board of Inquiry and I can't see how you can predicate a suit upon a proposition of that sort, therefore, after considering the matter, outside of any testimony on behalf of the defendants, I will grant the non-suit.
Mr. Robinson: But the record, I will assume, will include everything that is given up to this time.
The Court: Yes sir.
D. W. Robinson and D. W. Robinson, Jr., both of Columbia, for appellant.
Frank G. Tompkins and Frank B. Gary, Jr., both of Columbia, for respondents.
This is an appeal from an order of nonsuit by his honor Judge Shipp. The action was for damages on account of alleged false malicious and libelous statements contained in certain certificates and affidavits claimed to have been circulated and published concerning the plaintiff, which he alleged charged him with dishonesty and stealing, in his position as conductor, resulting in damage to his reputation and in his discharge.
It appears that on November 9, 1925, A. H. Plant, assistant to the vice president of the defendant company, wrote to the plaintiff a letter marked ""personal," received by the plaintiff on December 4, 1925 as follows:
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