Weir v. Brotherhood of Railroad Trainmen

• Decision Date: 29 November 1929
• Docket Number: 6 Div. 222.
• Citation: 221 Ala. 494,129 So. 267
• Parties: WEIR v. BROTHERHOOD OF RAILROAD TRAINMEN ET AL.
• Court: Alabama Supreme Court

129 So. 267

221 Ala. 494

WEIR v. BROTHERHOOD OF RAILROAD TRAINMEN ET AL.

6 Div. 222.

Supreme Court of Alabama

November 29, 1929

Rehearing Denied May 1, 1930.

Further Rehearing Denied June 26, 1930.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for libel by R. L. Weir against the Brotherhood of Railroad Trainmen and others. From a judgment for defendants plaintiff appeals.

Affirmed.

W. A Denson, of Birmingham, for appellant.

Crampton Harris, of Birmingham, for appellees.

THOMAS J.

The complaint proceeded for libel. After demurrers to the original counts, and the same were amended, those directed to counts 4 and 7 as amended were sustained. The individual defendants were stricken by the plaintiff, and the remaining defendants were Brotherhood of Railroad Trainmen and Grand Lodge of the Brotherhood of Railroad Trainmen. Demurrers were sustained to all pleas except the general issue, 7, 8, 10 and 13.

After plaintiff's evidence the remaining defendants offered no evidence, the jury returned a verdict for the defendants, and the appeal is from the judgment entered thereon and the overruling of motion for a new trial.

The evidence showed that Jennings met Roy C. Smith during 1923, who was deputy vice president of the Brotherhood of Railroad Trainmen in Birmingham, and he tried to induce witness, plaintiff, and others to disband the Switchmen's Union and join his brotherhood; that this was declined, and thereafter the Roy C. Smith letter he saw was a copy and not the real letter of Smith to Lee, and it had copy or letter to Morey that was to be kept confidential. The proprietor of the Hotel Grenada stated that the name of Roy C. Smith appears on his register of November 4, 1923, and witness Schulhoefer, an expert on handwriting, testified that the Roy C. Smith, signatures on the hotel register with the two signatures on the letter exhibited "are all the same signatures"; and the signature of W. G. Lee on the letter to Morey and the register receipts of the post office are the same. Witness stated the rubber stamp signature was the same, though it may have been affixed by some other person than Mr. Lee. And the Roy C. Smith letter, inclosure, and W. G. Lee letter were admitted in evidence. Mr. Jolley stated that Lee's official correspondence with him was by rubber stamp signatures and with pen and ink, and were similar in appearance.

Witness Parker testified that he was working for the Louisville & Nashville Company in December, 1923, and a copy of the Smith letter came to him by mail; he did not examine the postmark, and could not tell who mailed the same; that it cause Mr. Goad to make an investigation as chief inspector and special agent. The letter was read in evidence. It was of date of December 12, 1923, and stamped received by Grand Lodge December 14, 1923, office of president, Brotherhood of Railroad Trainmen. The letter will be further adverted to in the opinion.

The witness Cowan, special agent for the Frisco Railroad, testified that a letter in substance the same as the Smith letter "was brought" to him, February 18, 1924, attached to a note from the general superintendent of joint terminal (in Birmingham), and was not delivered to him by Smith or by Lee; that he did not know "how it was that the Switchmen's Union got hold of a private letter in the files of Mr. Morey"; that he made an examination thereof, as requested by that superintendent.

This Lee letter was authenticated by rubber stamp signature; it contained the words "report made to me by Brother Roy C. Smith, organizer, *** during his recent assignment" to the district in which was the Birmingham terminal, and refers to "Brother Roy C. Smith, organizer."

There is no evidence to the effect that the stenographer who took dictation of the Lee letter ever saw or read the Smith letter or attached the two documents. As indicated, the witness Parker testified that the letter from Smith to Lee was brought to his attention during the month of December, 1923; that he "received it through the mail," did not "remember from whom he received the letter," and "did not look at the postmark"; that investigation was made of the letter by Mr. Goad, chief inspector and special agent of the Louisville & Nashville Railroad Company, in December, 1923, or January, 1924.

We have indicated that Cowan testified that the letter causing his investigation was that in substance as the Smith letter; that it came to him, not from one of the defendants or their agents, but from the general superintendent of terminals at Birmingham; nor was the letter delivered to him by Smith or by Lee; and that he did not know how the Switchmen's Union got hold of the letter from the files of Mr. Morey; said the letter was passed to him, but did not state by whom.

Plaintiff testified that after the investigation of the communication of Smith, he was demoted about March 25, 1924; that theretofore he was "on duty as foreman for the Frisco Railroad"; had been requested and then threatened if he did not discontinue his association with the Switchmen's Union; that after the investigation the assistant general manager of the Frisco Railroad came to Birmingham and called plaintiff and Mr. King to his car and stated he was there to "investigate the charges contained in the Roy C. Smith letter." He gave them to understand they could not "remain in the employ of the Frisco Railroad as yardmasters and remain members of the Switchmen's Union of North America"; that he told said official he had never permitted his affiliations to conflict with his duties to the company, and that was an acknowledged fact, as was vouched for to Mr. Sisson by the superintendent of Birmingham terminals; and Mr. Sisson said he was friendly and told the boys they "ought not to take exception to that Roy C. Smith letter." This occurred before plaintiff's actual demotion, of which he was informed by the yardmaster, Mr. Brown, about three weeks later. Plaintiff further testified that he was not discharged from service, but was given a position not so desirable or lucrative; that Mr. Morey did not give him this letter; that he did not know how his union got the letter, and did not know that his union published it; that "apparently" copy of the letter came to him from Buffalo, N. Y.; that he could not testify that Roy C. Smith, himself, handed that letter to any one; he did not know how his (Switchmen's) Union "got that letter out of his (Morey's) possession."

Mr. Goad, as special agent (in 1923-24), received the Roy C. Smith letter from the superintendent of that division of the Louisville & Nashville Railroad Company, for investigation. The return receipt cards of the post office for registered articles, receipted for by W. G. Lee, as addressee, and the Brotherhood of Railroad Trainmen addressee by W. G. Lee, president, are referred to in testimony and were in evidence. The handwriting expert testified that in his judgment they were the same as the stamp signature to the W. G. Lee letter.

The evidence further showed that members of the Switchmen's Union wore pins with the letter "S" thereon; that said emblem resembled a "snake," and said members were often called in railroad circles the "snakes," as applying or as generally understood among railroad people as the Switchmen's Union. Such is the effect of the testimony of Mr. Cowan. As to this the witness Jennings said that the pin bore the letters "S. U.," and did not look like a snake, but had heard the members of such union "referred to locally as snakes," and that outsiders had referred to them as snakes. The plaintiff, as witness, replied to the question, "that emblem or button was a snake head and a snake tail," and was the emblem of said union in 1924. That same witness stated that he had seen articles published in the magazine of the order as "agitators," and Cowan testified the meaning of the word "dynamiter" as applied to that business was that of "a radical, an agitator," one who made "fiery speeches" or whose "utterances were calculated to incite trouble"; that "a dynamiter" was a way of designation or reference to a speaker who "had the force" and "habit" of "stirring things up in a meeting." We have indicated the evidence in which Mr. Sisson reminded plaintiff and King that they could not retain their positions as yardmasters of his road and belong to said Switchmen's Union of North America; that when plaintiff refused to resign his membership in said union, he was about three months later relieved as yardmaster, but was not discharged, was relieved from the service of said corporation as extra yardmaster; that he retained his service and seniority as switchman, but was not allowed to hold the official position indicated.

To prove libel there must be publication within the venue of the action to one or more persons other than the parties. Age-Herald Co. v. Waterman, 188 Ala. 272, 66 So. 16, Ann. Cas. 1916E, 900; Age-Herald Co. v. Huddleston, 207 Ala. 40, 92 So. 193, 37 A. L. R. 898; Roberts v. English, 155 Ala. 414, 46 So. 752; Penry v. Dozier, 161 Ala. 292, 49 So. 909. It is further established that merely to compose or write a libel is not a "publication" within the requirements of the decision on libel. Weir v. Hoss, 6 Ala. 881, 888; Marion v. Davis, 217 Ala. 16, 114 So. 357, 55 A. L. R. 171; Age-Herald Co. v. Huddleston, 207 Ala. 40, 92 So. 193, 37 A. L. R. 898.

Otherwise stated, although the defendant uttered and originally published the alleged slander, if he was not responsible for its repetition, if not done at his instance, he would not be liable for damages thus occasioned. Donaldson v. Roberson, 15 Ala. App. 354, 357, 73 So. 223; Hereford v. Combs, 126 Ala. 369, 380, 28 So. 582.

If plaintiff failed to prove...