White v. United Mills, Inc.

• Decision Date: 12 January 1948
• Docket Number: No. 20928.,20928.
• Parties: JAMES HARRISON WHITE, Respondent, v. UNITED MILLS, INC., Appellant.
• Court: Missouri Court of Appeals

208 S.W.2d 803

JAMES HARRISON WHITE, Respondent, v. UNITED MILLS, INC., Appellant.

No. 20928.

Kansas City Court of Appeals. Missouri.

Opinion delivered January 12, 1948.

Appeal from Circuit Court of Jackson County. — Hon. Brown Harris, Judge.

REVERSED.

James D. Howell, of counsel, and Walter A. Raymond for appellant.

(1) The court erred in refusing to sustain the motion of defendant for a directed verdict at the close of all the evidence as there was no substantial evidence of unprivileged, published libel to be submitted to the jury. Lee v. W.E. Fuetterer Battery & Supplies Co., 323 Mo. 1204, 23 S.W. 2d 45; Cook v. Pulitzer Pub. Co., 241 Mo. 326, 145 S.W. 480; Laws, Mo., 1943, p. 353, Sec. 112, Sec. 847.112, R.S. Mo., 1939, Ann. (2) The Labor Commissioner of the State of Kansas was charged with the duty of administering the Unemployment Compensation Act of that state and to determine, upon hearings or otherwise, whether an applicant was disqualified from benefits because discharged "for misconduct connected with his work." The functions of the Labor Commissioner were quasi-judicial in nature and the separation notice filed by defendant with said Commissioner under compulsion of law stating a ground which might disqualify plaintiff was absolutely privileged. Kansas General Statutes, 1943 Supplement, Sec. 44-714; Nash v. Brooks, 267 N.Y. 75, 11 N.E. 2d 545; State v. Board of County Commissioners of Creek County, 188 Okla. 184, 107 Pac. 2d 542; Arkansas Corporation Commission v. Thompson, 313 U.S. 132, 61 S. Ct. 888; Kirby v. Nolte, 349 Mo. 1015, 164 S.W. 2d 1; Mangieracina v. Haney, 141 S.W. 2d 89, 91, 92; Adamson v. Minnehaha County, 67 S.D. 117, 293 N.W. 542; Laun v. Union Electric Company, 350 Mo. 572, 166 S.W. 2d 1065, 1069 (5, 6); Hager v. Major, 353 Mo. 1166, 186 S.W. 2d 564, 569 (5, 6); Davis v. Union State Bank, 137 Kan. 264, 20 Pac. 2d 508; Reagan v. Guardian Life Ins. Co., 140 Tex. (S. Ct.) 105, 166 S.W. 2d 909; Independent Life Ins. Co. v. Rodgers, 165 Tenn. 447, 55 S.W. 2d 767; Parker v. Kirkland, 298 Ill. App. 340, 18 N.E. 2d 709; Stafney v. Standard Oil Co., 71 N.D. 170, 299 N.W. 582, 136 A.L.R. 535. (3) The court erred in refusing to sustain the motion of the defendant for a directed verdict at the close of all the evidence as there was no evidence whatever that said separation notice was seen, read or its contents actually brought to the knowledge of anyone other than the writers. There was therefore a complete failure of proof of publication which is a necessary element of plaintiff's alleged cause of action for libel. Julian v. Kansas City Star, 209 Mo. 35, 107 S.W. 496; Dobbin v. Chicago, R.I. & P. Ry. Co., 157 Mo. App. 689, 138 S.W. 682; McDonald v. R.L. Polk & Co., 346 Mo. 615, 142 S.W. 2d 635; Harbison v. Chicago, R.I. & P. Ry. Co., 327 Mo. 440, 37 S.W. 2d 609; Lonergan v. Love, 235 Mo. App. 1066, 150 S.W. 2d 534, 537 (6); 36 C.J., p. 1227, Secs. 180, 181; Vol. III, Restatement of the Law of Torts, pages 192, 193; Becker v. Brinkop, 230 Mo. App. 971, 78 S.W. 2d 538; Landis v. Campbell, 79 Mo. 433; 36 C.J., p. 1225, Sec. 174; 18 A.L.R., page 778; Biggs v. Atlantic Coast Line R. Co., 5 Cir., 66 F. 2d 87; Prins v. Holland-North American Mtg. Co., 107 Wash. 206, 181 Pac. 680, 5 A.L.R. 451, 453; Flynn v. Reinke, 199 Wis. 124, 225 N.W. 742, 63 A.L.R. 1113, 1118; Magnolia Petroleum Co. v. Davidson, (Okla. Sup.) 148 Pac. 2d 468; Lehner v. Associated Press, 215 Wis. 254, 254 N.W. 664; 33 Am. Jur., p. 111, Sec. 108; 36 C.J., p. 1225, Sec. 174; Laun v. Union Electric Co. of Missouri, 350 Mo. 572, 166 S.W. 2d 1065. (4) The burden was on the plaintiff to prove the falsity of the reason assigned for plaintiff's discharge in the notice of separation. Cook v. Pulitzer Publishing Co., 241 Mo. 326, 145 S.W. 480, 490, 492; State ex rel. Zorn v. Cox et al., 318 Mo. 112, 298 S.W. 837, 839; Merriam v. Star-Chronicle Pub. Co., 335 Mo. 937, 74 S.W. 2d 592. (5) Plaintiff's own personal testimony shows the alleged libelous statements were substantially true and not actionable. Mollman v. St. Louis Public Service Co., (Mo. App.) 192 S.W. 2d 618, 621; Ireland v. Shukert, 238 Mo. App. 78, 177 S.W. 2d 10, 17; Seegers v. Marx & Haas Clothing Co., 334 Mo. 632, 66 S.W. 2d 526, 528; Baucke v. Adams, (Mo. App.) 188 S.W. 2d 355. (6) Under the common law as applied in Kansas and Missouri the report to the commissioner of labor was absolutely privileged. Musser v. Musser, 281 Mo. 649, 221 S.W. 46, 48; Ham v. St. Louis & S.F.R. Co., 136 Mo. App. 17, 117 S.W. 108, 110; Baker v. Haldeman-Julius, 149 Kan. 560, 564; McCurdy v. Hughes, 63 N.D. 435, 248 N.W. 512, 87 A.L.R. 683, 689; Stone v. Hutchinson Daily News, 125 Kan. 715, 266 Pac. 78, 58 A.L.R. 718; Independent Life Insurance Co. v. Rodgers, 165 Tenn. 407, 55 S.W. 2d 767, 769 (2, 3); Anthony v. Kaiser, 350 Mo. 748, 169 S.W. 2d 47, 48. (7) There is no substantial evidence of publication of the separation notice. Buckwalter v. Gossow, 75 Kan. 147, 88 Pac. 742; 36 C.J. 1225, Sec. 174; 33 Am. Jur., p. 111, Sec. 108. (8) After moving for a directed verdict on the ground there was no publication defendant did not waive the point by thereafter instructing on it. Klotsch v. P.R. Collier & Son Corporation, 349 Mo. 40, 159 S.W. 2d 589, 595; McGrew v. Thompson, 353 Mo. 856, 184 S.W. 2d 994, 998.

Cowgill & Popham, Arthur C. Popham and Sam Mandell for respondent.

(1) The entire record shows that plaintiff was intentionally and maliciously libeled by the appellant, and precludes any escape of appellant's liability. State v. Wilcox, 90 Kans. 80, 88, 132 Pac. 982. (2) Under the common law of Kansas, absolute privilege does not extend to quasi judicial proceedings. Marney v. Joseph, 94 Kans. 18, 145 Pac. 822; Kirkpatrick v. Eagle Lodge, 26 Kans. 384, 390; Newell, Slander and Libel, 3rd Ed., p. 477, 509; Cooley on Torts, 4th Ed., Sec. 151; 33 Am. Jur., Libel, p. 123. (3) The common law is in effect in Kansas and can be changed only by its own courts. Cooper v. Seaverans, 81 Kans. 267, 105 Pac. 509; Davis v. Stouffer, 132 Mo. App. 55, 112 S.W. 282, 286; 1943 Sup. Kans. Gen. Statutes, Sec. 44-719(c). (4) The record shows publication of the separation notice. Buckwalter v. Gossow, 75 Kans. 147, 88 Pac. 742; Holmes v. Royal Fraternal Union, 222 Mo. 566, 121 S.W. 100; Laun v. Union Electric Co. of Missouri, et al., 350 Mo. 572, 166 S.W. 2d 1065, l.c. 1070; 33 Am. Jur., Libel, Secs. 108, 171. (5) The appellant is bound by its submitted trial theory that there was evidence that the matters in the separation notice were published to some third person. Wielms v. St. Louis County Gas Co., 37 S.W. 2d 454; Anderson v. Davis, 314 Mo. 515, 284 S.W. 439; Roush v. Hussey Lumber Co., 27 S.W. 2d 1033.

BLAND, J.

This is an action for libel. There was a verdict for plaintiff in the sum of $1000 actual and $1000 punitive damages. Defendant has appealed.

Plaintiff alleges in his petition that defendant operated a large flour mill in Kansas City, Kansas; that on or about October 18, 1943, plaintiff was employed by the defendant as a watchman at its mill and plant for the protection of defendant's property; that plaintiff's superiors "formed a violent, critical denunciatory attitude toward him and contrived and threatened to grievously injure him in his reputation and calling and ability to obtain similar work"; that to accomplish such purpose they "high-handedly, arbitrarily, maliciously, wilfully and intentionally on or about October 18, 1943, executed and wrote out a Notice of Separation on forms used by the Labor Department of the State of Kansas purporting to state the cause of" plaintiff's discharge to be "inefficiency, and willful disobedience in complying with the Company regulations"; that defendant well knew that said "statements were libelous, scandalous utterly and wholly false"; that the statements were made for the purpose of destroying the plaintiff; that he was injured in his calling and was rendered unable to obtain other employment, and was defamed and humiliated.

In its amended answer, upon which the case was tried, defendant admits that it operated a flour mill in Kansas City, Kansas, admits that plaintiff was employed by defendant as a watchman and that such relationship had been terminated. It admits that it prepared and filed the notice of separation set out in plaintiff's petition with the unemployment compensation division of the State of Kansas, and mailed a copy to plaintiff. Such admissions are followed by a general denial. Defendant then pleads the Federal Social Security Act (42 U.S.C.A. 301, et seq.), and the unemployment compensation law of Kansas sections 44-701 to 726 (Kansas General Statutes, 1943, Supplement.) These sections of the Kansas Statutes provide that the term "commissioner" or "commissioners" means the State Labor Commissioner; that an individual shall be disqualified for benefits for the week of his discharge and for not to exceed the next nine succeeding weeks when discharged "for misconduct connected with his work"; that it is the duty of the Labor Commissioner to administer the Act, to make rules and regulations, to require such reports, make such investigations, and to take such other action as he deems necessary or suitable to that end; that an employing unit shall keep records containing such information as the Labor Commissioner may require; that such information obtained in administering the act shall not be published or be open to public inspection, other than to public employees in the performance of their public duties, and so far as necessary for use in any hearing before an appeal tribunal or the Labor Commissioner.

The answer further alleges that pursuant to such statutory authority the Labor Commissioner promulgated a rule therein described which provides that whenever a worker is separated from his employment, under circumstances which may disqualify such worker from benefits under the Unemployment Compensation Act, the employer shall...