Wise v. Brotherhood of Locomotive Firemen and Enginemen

• Decision Date: 26 August 1918
• Docket Number: 5127.
• Citation: 252 F. 961
• Parties: WISE v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN.
• Court: U.S. Court of Appeals — Eighth Circuit

252 F. 961

WISE v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN.

No. 5127.

United States Court of Appeals, Eighth Circuit.

August 26, 1918

Humphrey Barton, of St. Paul, Minn. (John H. Kay, of Chicago, Ill and E. L. Carroll, of Creston, Iowa, on the brief), for plaintiff in error.

D. W Higbee, of Creston, Iowa, for defendant in error.

Before HOOK and STONE, Circuit Judges, and MUNGER, District Judge.

MUNGER District Judge.

In an action for libel a verdict was directed for defendant at the close of the evidence and plaintiff brings error. The parties will be designated as plaintiff and defendant, as they appeared in the district court. The plaintiff was a member of the Brotherhood of Locomotive Firemen and Enginemen belonging to a local lodge in Iowa, and was the holder of a certificate issued by the society promising to pay him $3,000 if he lost, by accident, a hand at or above the wrist. The plaintiff was a fireman on a railway engine, and lost his hand because it was run over by the wheel of the engine tender. He applied to the society for the payment of the $3,000. The officer of the society who held the position of secretary and treasurer (hereafter called secretary) was charged with the duty of examining and passing upon the proofs of loss in such cases, and the president of the society had the decision of appeals made to him by subordinate lodges or members. The secretary, after receiving proofs of loss from the plaintiff, made some investigations as to the cause of the injury, including a visit to the scene of the injury, in company with the plaintiff, and heard the plaintiff's narrative of the manner in which the injury was inflicted. The plaintiff told him that he was standing on the step on the left side of the tender, when a sudden movement of the engine forward threw him from the step, and his trousers leg was caught by some protruding part of the step and he was dragged on his back in this manner, as the engine went forward 2 1/2 car lengths, and then his trouser leg let loose and the tender ran over his hand, so that amputation was necessary. The plaintiff told him he received no injuries other than to his hand. After these investigations the secretary wrote plaintiff a letter declining to pay him for the loss of his hand, and added:

'My reason for declining to make payment of the amount of certificate is that I am fully satisfied that the loss of your hand was not an accident, but was a self-inflicted injury for the purpose of trying to collect the amount of the beneficiary certificate held by you in the Brotherhood of Locomotive Firemen and Enginemen.'

The secretary at the same time sent a copy of this letter to the secretary of the local lodge to which plaintiff belonged, with a note that the letter was self-explanatory, and the letters were read before the members at a meeting of the lodge. Many of the local lodge members united in a petition of protest and appeal to the president, and the secretary then stated to the president the facts as he understood them, and the president wrote the secretary of the local lodge a letter which contained the following statement:

'Your letter of July 29th, with the 'petition' or 'protest' signed by a considerable number of members of Lodge 640 in the Wise case, has been received, and an investigation conducted by the general secretary and treasurer, accompanied by the general medical examiner, leads to the belief that Brother Wise has deliberately attempted to defraud this Brotherhood. The facts appear to be that before he lost his hand he had but recently increased his insurance to $3,000, he had insurance in the Fidelity & Casualty Company, he had insurance in the 'Relief Department' of the C., B. & Q.R.R., he has entered suit against the C., B. & Q.R.R. Co. and has now employed an attorney to enter suit against this Brotherhood. These circumstances, taken collectively, lead us to believe that there was a deliberate purpose on the part of Brother Wise to defraud this Brotherhood. * * * They probably cannot conceive how a man would deliberately sacrifice a hand for $6,000, or $8,000. You would be surprised how many members do sacrifice hands and feet for less money than this, in several of which cases we have defeated the cases in court. * * * I urge upon the members of your lodge to not join, even unconsciously, in any possible attempt on the part of any one to defraud this Brotherhood.'

The plaintiff subsequently brought suit against the Brotherhood for the amount payable by his certificate, and the defendant's answer alleged as one defense that the injury was not suffered accidentally, but intentionally. At the time of trial judgment was entered in favor of plaintiff, by consent of the parties, for the amount prayed. The libels charged are the statements set forth in the letters which have been quoted. The answer of the defendant pleaded qualified privilege and lack of malice.

There is no contest made as to the defamatory character of the letters, but there is a claim made by the defendant that there was no proof of authority of the writers of these letters to render the society liable for libelous words contained in them. The constitution of the defendant was offered in evidence, but only a portion of it is contained in the bill of exceptions. That portion gives broad power to the president and secretary in managing the business of the society and in passing upon claims of loss under its certificates. In the absence of the remaining portions of the constitution, it cannot be said that these officers may not have had express authority to write these letters, and to state the reasons to the local lodge for declining to make payment.

The main question in the case is whether, as a matter of law, the evidence shows that the defendant is excused from liability because the communications were privileged and made in good faith. A communication is privileged if made bona fide by one who has an interest in the subject-matter to one who also has an interest in it or stands in such a relation that it is a reasonable duty, or is proper, for the writer to give the information. Massee v. Williams, 207 F. 222, 124 C.C.A. 492; National Cash Register Co. v. Salling, 173 F. 22, 97 C.C.A. 334; Merchants' Ins. Co. v Buckner, 98 F. 222, 39 C.C.A. 19; Locke v. Bradstreet Co. (C.C.) 22 F. 771; Erber & Stickler v. R.G. Dun & Co. (C.C.) 12 F. 526; Newell on Slander and Libel (3d Ed.) Secs. 493, 607; Odgers...