James v. Western Union Tel. Co.

February 12, 1925. The opinion of the Court was delivered by I concur in the conclusion that there should be a new trial as to the defendant J.T. Gray upon the ground of error in charging that the verdict must be against both defendants.

The defendant Gray testified that the message was typewritten by him at the request of the "Statesman," and as an accommodation to him; that he (Gray) handed the transcribed message back to the sender, and that the sender then filed the message with another employee of the telegraph company, the receiving clerk, for transmission, who accepted it and put it in the channel of transmission. If the jury believed Gray's statement, it is manifest that they could not have found that the libel had been published by him, and, but for the charge that they must find a verdict against both defendants, the jury may have entirely exonerated Gray, and found a verdict against the telegraph company, based upon the publication of the libel by some other employee of the company engaged in receiving, transmitting, relaying, or delivering the message.

But I think that under the case of Webber v. Jonesville,94 S.C. 189; 77 S.E., 857, it is inevitable that the verdict should be set aside, upon this ground, against both defendants. In that case the action was in tort against six defendants, the town, the Mayor, and the four Aldermen. The counsel for the town made a motion for a directed verdict in its favor, which the Circuit Judge refused, but instructed the jury that they must find a verdict in favor of the town. The jury, disregarding this instruction, rendered a verdict for $150 punitive damages, against all six of the defendants. Upon motion of the counsel for the town and the four Aldermen, the Court granted a new trial in favor of these five defendants, and allowed the verdict to stand against Scott, the Mayor. Upon Scott's appeal the Court held that, where the amount of damages is uncertain, the verdict should not be set aside as to one or more of the defendants without setting it aside as to all, except under special circumstances. Mr. Justice Hydrick, delivering the opinion of the Court, said:

"It stands to reason that the jury rendered a bigger verdict against all the defendants, supposing that all would have to share the burden, than they would have rendered against any one of them. Therefore, to set it aside as to all except one imposes upon that one a greater burden than the jury intended he should bear, and the result is that the Court indirectly becomes the assessor of damages against him, and not the jury, which violates the spirit, if not the letter, of the right of trial by jury."

We may feel sure that, if the jury had been allowed to find a verdict against the telegraph company alone, the amount would not have been appreciably reduced by the absence of the individual defendant; yet that is entirely speculative; it was a matter for the jury and not for this Court.

Another very serious objection to the charge is that it assumed that the defendant Gray was the sole agent through whose act the libel was published and without actual participation (authorization or ratification) by the corporation; in other words, that the corporation was sought to be held liable under the principle of respondentsuperior; for, if not under that principle, the verdict may have been against the corporation alone or in different amounts against the two defendants. This was clearly in violation of the rights of Gray.

The charge was equally prejudicial to the telegraph company in assuming that Gray was the agent through whom the publication was effected, a debatable question of fact in the case.

I think, too, that the appellant's 6th exception should be sustained, The request to charge, the refusal of which is the basis of this exception, was as follows:

"The Court instructs the jury that, even though the words in question would from the ordinary meaning of the expression used imply a crime, yet they are not actionableper se as charging such a crime if they were used, and were understood by the readers or hearers to be used, with reference to acts or conduct on which no such crime could be predicated and from which no libelous charge could be inferred."

The proposition of law is sustained by Van Rensselaer v.Dale, 1 Johns. Cas. (N.Y.), 279. Hayes v. Ball,72 N.Y., 418; Newell on Sland. Lib. (3d Ed.), 364, 369. Pegramv. Styron, 1 Bailey, 595. Shecut v. McDowell, 3 Brev., 38; 5 Am. Dec., 536.

In Pegram v. Styron, 1 Bailey, 595, it was held (quoting syllabus):

"Although the words spoken import a criminal charge, yet if they are explained at the time, or are understood by the persons who hear them, to refer to a matter not criminal, they are not actionable, without special damage."

Possibly fifty cases are cited in the Decennial Digest, title "Libel and Slander," key No. 19, which also sustains the proposition. If the matter had been left to the jury, it is not beyond the range of possibility, or even probability, that they may have concluded, in view of the notoriously heated political campaign of 1922, that the language of the telegram referred to the espousal by the plaintiff of the cause of the opponent of the candidate, a resident of the same county as the plaintiff, whom the sender of the telegram was intensely advocating. Such espousal may have reflected upon the plaintiff's county pride, but in no possible condition could it have amounted to treason, against the State.

I reserve my opinion upon the question whether the evidence showed a publication by the telegraph company of the libel.

A majority of the Court having concurred in this opinion, it is ordered and adjudged that the judgment of the Circuit Court be, and is hereby, reversed, and a new trial ordered.

MR. JUSTICE MARION and MR. ACTING ASSOCIATE JUSTICE WM. P. GREENE concur.

MR. ACTING JUSTICE C.J. RAMAGE dissents.

MR. JUSTICE WATTS dissents in part.