Western Union Telegraph Co. v. Brown

• Decision Date: 06 December 1923
• Docket Number: 5739.
• Parties: WESTERN UNION TELEGRAPH CO. v. BROWN.
• Court: U.S. Court of Appeals — Eighth Circuit

294 F. 167

WESTERN UNION TELEGRAPH CO. v. BROWN.

No. 5739.

United States Court of Appeals, Eighth Circuit.

December 6, 1923

Charles Burke Elliott, of Minneapolis, Minn. (Cassius M Ferguson, of Minneapolis, Minn., and Francis R. Stark, of New York City, on the brief), for plaintiff in error.

Ben W Palmer, of Minneapolis, Minn. (Daniel J. Hollihan, of St Paul, Minn., on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and TRIEBER and NEBLETT, District judges.

SANBORN Circuit Judge.

The Western Union Telegraph Company, hereafter called the defendant, complains of alleged error in the trial of an action against it by the plaintiff below, Hattie E. Brown, in that the court refused to direct a verdict in its favor, and in that the court instructed the jury that the plaintiff was entitled to recover and that the only question for them to determine was the amount of damages that the plaintiff sustained by the defendant's receipt from the signer and its sending over its wires to the plaintiff's mother, Mrs. Ole Pearson, this telegram:

'49 N.L. St. Paul, Minn. Nov. 1-12 1917. Mr. and Mrs. Ole Pearson, Spring Park Minn. Hattie is not married to Hughie Brown been living as man wife she must make good real husband or application for warrants for white slavery extortion black mail being adulteress or common prostitute. Detectives watching her has diamond rings in pawn Ironton, Minn. reporters want her conduct newspapers. G. W. Gordon Genl. Delivery, 8 45 A.M. 11/12/17.'

The evidence at the trial disclosed these facts: Arthur C. Beattie was the receiving clerk of the defendant at its general office in St. Paul. He had been in its employment for seven years; was familiar with its rules and with his duties as receiving clerk. Two men he had never seen before came into the general office of the company; one of them signed this telegram and they paid for sending it. Upon its presentation one of these men, Mr. Tibbitts, who was known to Mr. Chapple, the night manager of the defendant, who was then in the office and saw him, did most of the talking. Mr. Beattie objected to the telegram, that its language was pretty sharp and he would rather not take it. Mr. Tibbitts then said that he was a government man, working for Mrs. Pearson, paid by the government, and that she was expecting the telegram, and it would not cause any hard feelings. He said that he and Mr. Gordon were working for Mr. and Mrs. Pearson under the pay of the United States government detailed on this case, and at the same time he exhibited a silver star with the initials 'U.S.' upon it. Mr. Beattie testified that he would not have sent the telegram if they had not represented and he had not believed that they were federal agents, but that under these circumstances he received and sent it to the addressees. He also testified that he did not know the plaintiff, or Mr. or Mrs. Pearson, nor had he ever heard of them and that he had no feeling against them. Mr. Chapple, the night manager, testified that he was acquainted with Mr. Tibbitts and saw him in the office talking with Mr. Beattie; that Tibbitts had previously sent through him several telegrams; that Tibbitts had told him that his principal business was to have this man Hughie Brown arrested for white slavery; that he (Tibbitts) was a federal agent; that he had shown him his star and had sent a telegram over the telephone to him to deliver to Governor Burnquist, asking him for an interview the next morning regarding the Hughie Brown white slavery case. Mr. Chapple further testified that Mr. Tibbitts had, twice before the telegram in issue was sent, identified himself to him by his star as a secret service man, and that he would have sent the telegram in controversy if Tibbitts had presented it to him.

As there was no evidence that the statements in the telegram were true, it was flagrantly libelous, and, as against its senders, Gordon and Tibbitts, it was neither absolutely nor qualifiedly privileged, and, if this action had been against them, the charge of the court that the plaintiff was entitled to recover, and that the only question for them to consider was the amount of the damages, would have been right. But Beattie and the defendant are not in the class of the signers of this telegram.

The underlying principle which sustains the absolute privilege of certain communications is public policy. It is that the interests and necessities of the public require that the time and occasion of the publication or utterance of an alleged libelous or slanderous communication, even if it be both false and malicious, shall protect the defendant from all liability to prosecution for the sake of the public good. The...