Western Union Tel. Co. v. Lesesne

• Decision Date: 23 July 1952
• Docket Number: No. 6397.,6397.
• Citation: 198 F.2d 154
• Parties: WESTERN UNION TEL. CO. v. LESESNE.
• Court: U.S. Court of Appeals — Fourth Circuit

198 F.2d 154 (1952)

WESTERN UNION TEL. CO. v. LESESNE.

No. 6397.

United States Court of Appeals Fourth Circuit.

Argued June 30, 1952.

Decided July 23, 1952.

John H. Waters, New York City, and E. W. Mullins, Columbia, S. C. (Nelson, Mullins & Grier, Columbia, S. C., on the brief), for appellant.

C. T. Graydon and Augustus T. Graydon, Columbia, S. C. (McLeod & Singletary, Columbia, S. C., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This case against the Western Union Telegraph Company comprises two causes of action for libel based on two telegrams containing statements reflecting upon certain conduct of Thomas P. Lesesne, Jr., which were transmitted by the Telegraph Company at the instance of H. G. Willingham. The first telegram, which was addressed to Lesesne, was filed by Willingham with the company on Saturday evening, October 26, 1946, at Columbia, South Carolina, and was delivered by the company the next day in a sealed envelope to the residence of Lesesne in Columbia, South Carolina. When received it was opened and read by his wife since he was sick in bed at the time. A short time before the telegram was sent, a woman had been killed on the streets of Columbia by an automobile driven by Lesesne and the telegram referring to this circumstance was in the following words:

"Although you are an administrative Assistant of the South Carolina State Board of Health and a new deal tick that does not give you a license to run through the streets of Columbia and kill women turn over in bed and regret your wrong doings. Although you have tried to kill the case with political pull we are determined to pull you out into the spot light."

The second telegram on which the second cause of action is based was filed with the company on Sunday, October 27, 1946. It was addressed to Dr. James A. Hayne, Director of the State Board of Health with which Lesesne was officially connected, and was delivered to Hayne the following day. The telegram was in the following words:

"You nor no other Democratic politician is going to be big enough to fix the death that occurred at Wheat and Wood Streets caused by your administrative assistant Thomas Lesesne. I have reported this to the civil rights section of the United States Dept. of Justice. After receiving cover all tactics from highway patrol and Columbia police dept."

The case has been twice tried in the District Court. The first trial resulted in a verdict for the defendant on the first telegram and a verdict in the sum of $2,000 in favor of the plaintiff on the second telegram. An appeal was taken from the judgment in the second cause of action and in our opinion (see 182 F.2d 135) we discussed the company's defense that the communication was privileged. We held that the case was properly submitted to the jury since the contents of the second telegram gave rise to conflicting inferences and hence it was for the jury to say whether the sender was moved by an improper desire to defame the plaintiff or by the motive to bring to the attention of responsible officials the reprehensible conduct of a subordinate; but we reversed the judgment because of the improper admission of evidence prejudicial to the defendant. At the second trial, upon this cause of action, the jury again rendered a verdict for the plaintiff, this time for the sum of $1,833.34, and we are asked to reconsider the question of privilege; but we adhere to the conclusion announced in the prior opinion for the reasons stated therein.

We come then to consider the cause of action based on the first telegram. This was also submitted to the jury at the second trial, because the District Judge had set aside the verdict at the first trial in favor of the defendant. At the second trial the jury rendered a verdict for the plaintiff in the sum of $9,416.66. Obviously the amount was fantastic and excessive in the extreme and bore no possible relation to any damage suffered by the plaintiff. It was conceded at the trial that the company was not actuated by ill will or malice and that the plaintiff was not entitled to punitive damages; moreover, the contents of the telegram were not published except to the plaintiff's wife and to the employees of the company who handled the telegram with many others in the ordinary course of business. The only basis urged in support of the amount of the verdict is that during the period between the receipt of the telegram on October 27 and November 4, 1946, when the coroner's jury exonerated the plaintiff from blame for the woman's death, the plaintiff and his wife were apprehensive of the outcome and temporary doubts were raised in the mind of the wife as to the character of the husband's conduct. It will be borne in mind, however, that it was the second rather than the first telegram which related to the plaintiff's official employment, and may have been thought to jeopardize his position, and that for this telegram the plaintiff was compensated by the verdict in the second cause of action.

The District Judge was acting well within the limits of his discretion in announcing that he would set aside the verdict unless the plaintiff consented to its reduction, since there was nothing in the record upon which to base a verdict for anything more than a nominal amount. With punitive damages out of the case, only actual damages were recoverable; and the contention that plaintiff suffered any substantial damage as a result of his wife's reading the first telegram or its being read by those who handled it for the telegraph company is not supported by anything in the record. Since we are of the view that defendant was entitled to a new trial upon another ground, we need not pass upon the contention that it was reversible error to put the parties on...