Wagner v. Scott.

• Decision Date: 12 June 1901
• Citation: 63 S.W. 1107,164 Mo. 289
• Parties: WAGNER v. SCOTT.
• Court: Missouri Supreme Court

63 S.W. 1107

164 Mo. 289

WAGNER v. SCOTT.

Supreme Court of Missouri, Division No. 1.

June 12, 1901.

LIBEL—PRIVILEGED COMMUNICATION—MALICE —QUESTION FOR JURY.

1. In an action for libel, the question whether, in the absence of actual malice, the communication was privileged, is for the court.

2. In an action for libel, the question whether a communication otherwise privileged was actuated by actual malice is for the jury.

3. Certain electric light companies combined to construct a system of underground conduits, and appointed plaintiff as the engineer in charge. Thereafter defendant, president of one of the companies, wrote to the president of another company that plaintiff and the contractors under him were attempting to prevent a proper inspection of the work, that plaintiff was assisting the contractors in slighting the same, and that he had forged the name of defendant's company to certain papers. Plaintiff's evidence tended to show that the charges were false, and that defendant either knew, or had the means of knowing, such fact. Held, that the evidence made a prima facie case for the jury.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action for libel by Herbert A. Wagner against Henry C. Scott. From an order overruling plaintiff's motion to set aside a nonsuit taken by him with leave, plaintiff appeals. Reversed.

Morton Jourdan, for appellant. F. N. Judson, for respondent.

BRACE, P. J.

This is an action for libel, in which at the close of plaintiff's evidence the court instructed the jury that upon the evidence the plaintiff was not entitled to recover. Thereupon the plaintiff took a non-suit with leave, and, his motion to set the same aside having been overruled, he appeals.

Early in the spring of 1897 an ordinance was passed by the city of St. Louis requiring the electric lighting, heating, and power companies in St. Louis to place their wires underground, and said ordinance outlined the mode of procedure which should be followed by these companies in the construction of the underground conduit. The Missouri Electric Light & Power Company, the Electric Light, Power & Conduit Company, the Edison Illuminating Company of St. Louis, being associated and considered as one interest with the St. Louis Electric Light & Power Company, the Phœnix Heat & Power Company, and the Edison Electric Illuminating Company of Carondelet, each representing an individual interest, engaged in the joint construction of this system of conduits. These companies appointed representatives to a committee which was called the "Conduit Construction Committee," whose duty it was to let the contracts for the conduit work, and supervise the work, and to carry out all the necessary details. The first three of the above-named companies had one representative on this committee,—the plaintiff, Herbert A. Wagner. The Phœnix Company was represented by Alexander Ross; the Edison Electric Illuminating Company of Carondelet was represented by E. V. Matlack, its superintendent; and the St. Louis Electric Light & Power Company was represented by D. W. Guernsey. At this time the plaintiff, Mr. Wagner, was superintendent of the Missouri Electric Light & Power Company. Mr. S. M. Dodd was the president of this company, which company practically owned and controlled the Electric Light, Power & Conduit Company and the Edison Illuminating Company of St. Louis. Mr. Henry C. Scott, the defendant, was the president of the Edison Electric Illuminating Company of Carondelet. In furtherance of the work of construction the plaintiff was appointed by these representatives as the engineer of the joint construction of the conduit, and it was provided that he should obtain the necessary permits from the board of public improvements, should make requisitions upon the different companies for their proportion of the cost, should have general supervision of the work, and should consult freely with the engineers of the companies, and the number of inspectors to be furnished by each company was agreed upon. He was also to certify all contractors' bills, so that the committee could audit the same prior to payment. Disputes arose between Mr. Fay, an authorized inspector appointed by the Edison Electric Illuminating Company of Carondelet, and Mr. Wagner, the plaintiff, as to the proper method of conducting the work of building the conduit, and Mr. Fay was removed by Mr. Wagner. Correspondence resulted between Mr. Scott, the defendant, and Mr. Dodd, representing their respective companies, who were thus engaged in the joint work of construction. This correspondence offered in evidence is as follows:

"June 26, 1897. Mr. S. M. Dodd, St. Louis —My Dear Mr. Dodd: I want to bring to your attention, in a personal way, a matter which I think, from the point of view of the companies owning and interested in the conduit work, in one of importance. You perhaps know that last week our inspector, Mr. Fay, was attacked on the trench by Mr. Freese, one of Mr. Wagner's subordinates, and that as the result of this controversy the work was stopped for a time; Mr. Wagner maintaining that the discipline of the force was affected through Mr. Fay's alleged insubordination. Regarding this charge against Mr. Fay, I will state that I have personally looked into this matter with the utmost care, and have spent two or three days giving the matter close attention; and I assure you, on my personal word, that I can find nothing whatsoever to justify any such charge. The man is, on the contrary, unusually intelligent, and the records of the work will show that in the matter of (1) defective pipe found; (2) improper mixing of the concrete cement; (3) the imperfect manner of putting the cement in the trench; (4) reporting inadequate amount of cement in the trench, as called for in the contract,—all of which reports are a matter of record in the work, Mr. Fay was of every material aid to us and to your people, in seeing that the contractors properly carried out their undertaking. Because we do not, while we are in the midst of this work, wish to take the time of the officers of our company to post a new man in the duties of inspecting the work, we are loath to take Mr. Fay from the work. Now, I want to enlist your personal offices in seeing either that Mr. Fay be allowed to take a place as one of our appointees under the engineer, or else that the extraordinary objection that we shall even be given the right to send Mr. Fay out on this work to make inspections of it and report to us direct be removed. I write you this letter after having thought the matter over with a great deal of care, and because (1) I am entirely unwilling that so large an amount of our stockholders' money be expended by us without a careful inspection of the work, which inspection has been found most necessary by the reports turned in by Mr. Fay and the other inspectors; and (2) I believe that you will conclude, on thinking over the matter, that it is unwise for us to let the contractor see that one who has been most vigilant in watching this work and keeping up its standard be taken off the work altogether. As far as the character of Mr. Fay's work is concerned, we make no point as to whether he shall be employed under Mr. Wagner or not. In either event, we are, of course, to pay his wages; but I submit to you that it is most extraordinary that Mr. Wagner, or anybody in charge of this work, should question the right of this company to give whatever inspection it pleases, and in any amount which it thinks necessary, at its own expense; and, feeling that the interests of your company and ours are equally involved in this matter, I have written you, asking that you will use your influence in preventing any further useless controversy through our determination to give the work that inspection and supervision which, in our judgment, is required. Very truly, yours, Henry C. Scott."

To which Mr. Dodd replied as follows: "Edison Illuminating Company of St. Louis. June 28, 1897. Mr. Henry C. Scott—My Dear Sir: Yours of the 26th I received this morning, and carefully note its contents. I also have a report of the committee composed of Mr. Ross and Mr. Guernsey, which is very definite. I see that it will be very easy for you to place some one in Mr. Fay's place that will be entirely competent and satisfactory to all parties concerned, and I suggest to you to use your authority and good offices as executive officer of the Edison Company of Carondelet, and make such appointment. If the report had been made against any of our men, I should certainly put some one in his place without delay. Yours, very truly, S. M. Dodd."

On the next day the defendant wrote and caused to be delivered to Mr. Dodd a letter as follows: "St. Louis, Mo., June 29, 189_. Mr. S. M. Dodd—My Dear Mr. Dodd: I have been trying all day to see you, to answer your letter of yesterday in person, and also to report to you...