Switzer v. American Ry. Express Co.

The facts briefly stated are as follows: The plaintiff had been employed by the defendant as agent at Estill, S.C. Taking a charitable view of his conduct, he had been too indulgent with patrons of the office in the matter of extending credit to them, unauthorized by the company. When called upon to account in September, 1920, he was in default about $1,700.00. Under threat of prosecution criminally, he, with the assistance of the members of his family, raised the money and settled with the Company, as he says, but this is denied by the company. He was discharged, and one Wilkinson put in his place. Although discharged, and his home was at Saluda, the plaintiff remained at Estill for several days, without employment and staying at the hotel. On the night of October 8, 1920, the office of the company was broken into and the cash found therein, about $7,500.00 stolen. The burglary is supposed to have occurred about 7 or 8 o'clock p. m. The agent Wilkinson notified McLeod, route agent of the company, that the robbery had taken place. The following day McLeod, with the defendant, Tevis, special agent of the company, arrived at Estill to investigate the affair. On the afternoon of that day, the 9th, their inquiries developed the information that Switzer, the plaintiff, was absent from town, visiting a young lady, about the time the robbery was supposed to have been committed. The next morning Tevis saw Switzer at the hotel, and invited him to go with him and McLeod to the express office, Switzer knowing that the interview was in connection with the robbery. Switzer made no objection to going, and the three went together to the office. When they were seated for the interview, Tevis requested the agent Wilkinson to retire from the room. Tevis and McLeod both testified that Wilkinson went through the door and shut the door after him. Switzer testified that Wilkinson did not close the door; that "he left the room," that he was "by the room door," which was open; that "he stood by the door" while the conversation between him and Tevis proceeded. The account of the conversation given by Switzer is exceedingly important. Quoting from his testimony:

"They asked me where I was on Friday night of the robbery. I told them I was at Lena, about a mile and a half from Estill. And they asked me on what particular business I was at Lena. I told them I had called to see a young lady. They went on to say a robbery had taken place at the office. When I used the word ``they' I refer to Mr. Tevis. I asked them if they thought I had committed the crime, and Mr. Tevis said, ``Well, it does look suspicious of you being in Estill at the time the robbery took place, knowing the details of the office as run on the inside and the outside, too, but I might find the people you were visiting in Lena the night before and the night the robbery took place.' So I told them the people I was visiting in Lena, and they left."

The slanderous words were denied by Tevis and McLeod.

The defendant moved for a non-suit upon the grounds: (1) That the words were used under circumstances showing that the occasion was one of qualified privilege; (2) that there was no evidence tending to show malice on the part of the defendant's agent and that therefore the communication was privileged; (3) that there was no evidence tending to show a publication of the alleged slander. The motion was refused, as also was a motion at the close of all the testimony for a directed verdict. The jury rendered a most remarkable verdict. Notwithstanding the fact that the liability of the defendant company was based upon the slander uttered by its agent, Tevis, the verdict was for $35.40 against Tevis and $1,400.00 against the company, stated to be actual damages in each instance. It should have been set aside upon this ground, if a motion had been made to that end.

The appeal calls for a review of the order refusing motion for non-suit and the order refusing motion for a directed verdict. The fifth exception assigns error in the refusal of the defendants' first request. It is satisfactorily disposed of in the leading opinion. There remains therefore, for discussion, only the propriety of refusing the above motions; and, as they were made upon the same grounds, the discussion will be confined to the motion for a directed verdict.

It is important to bear in mind the distinction between a qualifiedly privileged "occasion" and a qualifiedly privileged "communication." The latter cannot exist without the former; though the former may be employed by the slanderer as the opportunity for venting his spleen, and may therefore exist without the latter.

The questions that arise in the consideration of the appeal are: (1) Was the occasion upon which the alleged slander occurred one of qualified privilege? (2) Was the "communication," alleged to have been slanderous, one of qualified privilege; this question depending upon the further question whether or not, the "occasion" being shown to have been one of qualified privilege, the occasion was so abused, or its bounds so exceeded by ill motive, as to deprive the communication of the qualifiedly privileged character which is presumed by the fact of its utterance upon a qualifiedly privileged occasion? (3) If the communication, unrelieved by a qualified privilege, or the absence of malice, was slanderous, was there any evidence tending to establish the fact of the publication of the defamatory expression, an element essential to constitute actionable slander?

(1) As to the first question. The office of the company had been burglarized; the local agent had telegraphed the route agent of the fact; the route agent got in touch with the special agent, whose particular duty was to investigate promptly such occurrences. The special agent and the route agent hurried to the scene of the burglary and began an investigation. They invited the plaintiff, their former agent, to go with them to the office for an interview, as he testified, "about the robberies." The interview being prompted by a duty which the agent owed to the company and in which his principal had an interest, presented an occasion, unquestionably, of qualified privilege.

(2) As to the second question: The distinction between communications absolutely and qualifiedly privileged is thus clearly stated in 25 Cyc., 375:

"An absolutely privileged communication is one for which an action will not lie, even though the words are published maliciously and with knowledge of their falsity, whereas, a qualifiedly privileged communication is one which is prima facie privileged only and in which the privilege may be lost by proof of malice in the publication of the libel or slander."

A qualifiedly privileged communication is thus defined in 17 R.C.L., 341:

"A communication made in good faith on any subject-matter in which the person communicating has an interest or in reference to which he has a duty."

And in Cyc., 385:

Where a party makes a communication and such communication is prompted by a duty owed either to the public or to a third party, or the communication is one in which the party has an interest and it is made to another having a corresponding interest, the communication is privileged if made in good faith and without actual malice."

"Where the evidence establishes circumstances which the law says support a duty to make a statement of facts honestly believed to be true, or an honest comment on facts, such circumstances are called an ``occasion of privilege.'"Atwater v. News Co., 67 Conn., 504; 34 Atl., 865.

The rule of evidence is that, when it appears beyond question, or is conceded, that the occasion was one of qualified privilege, the burden is then cast upon the plaintiff to rebut the prima facie presumption that the communication was of like character.

"When the defense is pleaded that the communication upon which an action for libel or slander has been instituted was privileged, the burden of proof rests on the defendant to show that the occasion was privileged but when the occasion is shown to have been qualifiedly privileged, it is generally held that the burden of proof rests upon the plaintiff to show actual malice on the part of the defendant." 17 R.C.L., 418 — citing a vast array of cases.

"The occasion of making a communication qualifiedly privileged rebuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of plaintiff, and throws upon him the onus of proving malice in fact." 25 Cyc., 376.

"The proposition that where an alleged defamatory communication is shown to have been conditional or qualifiedly privileged the burden is on the plaintiff to prove actual malice, is supported by a multitude of decisions." Note 3 L.R.A. (N.S.) 696, citing cases from the Federal Courts, Alabama, Connecticut, Delaware, Florida, Illinois, Indiana, Iowa, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New York, North Carolina, North Dakota, Pennsylvania, South Dakota, Texas, Virginia, West Virginia, and Wisconsin; and South Carolina might have been added (Smith v. Youmans, 3 Hill, 85).

"The burden of proving a plea that the communication was privileged is on the defendant. When it is established or conceded that the communication was privileged the burden is then cast upon the plaintiff to show that the words were uttered from an improper motive, and not for a reason that would otherwise render them privileged."Abraham v. Baldwin, 52 Fla., 151; 42 South., 591; 10 L.R.A. (N.S.), 1051; 10 Ann. Cas., 1148.

"When the words alleged to be slanderous are embraced in the class of privileged communications, it is shown by a great number of authorities, that the plaintiff is bound to prove the existence of malice as the real motive of the defendant's language." Beeler v. Jackson, 64 Md., 589,2 Atl., 916.

The case of Hemmens v. Nelson, 138 N.Y., 517; 34 N E., 342; 20 L.R.A., 440, contains an exceedingly clear-statement of the rule:

"The question is not whether the charge is true or false, nor whether the defendant had sufficient cause to believe that the plaintiff sent the letter, or acted hastily, or in a mistake, but the question is, the occasion being privileged, whether there is evidence for the jury that he knew or believed it to be false. The plaintiff (defendant) may have arrived at conclusions without sufficient evidence, but the privilege protects him from liability on that ground, until the plaintiff has overcome the presumption of good faith by proof of a malicious purpose to defame her character, under cover of the privilege."

"The burden of proving that the occasion of publication was privileged is on the defendant." The occasion being privileged, the burden is then cast upon the plaintiff of showing that the words were published from an "improper motive, and not for a reason which otherwise would render them privileged." King v. Patterson, 49 N.J. Law, 417;9 Atl., 705; 60 Am. Rep., 622. "But this is not true in cases involving a qualified privilege. In such cases actual malice must be proved," and the onus of proof "is upon the plaintiff." Fahey v. Shafer, 98 Wn., 517;167 Pac., 1118. In Massee v. Williams, 207 Fed., 222; 124 C.C.A., 492, it is said:

"The occasion being privileged, the communication did not amount to actionable defamation until it appeared that it had its origin in actual malice. * * * * It was therefore incumbent on the plaintiff to show such malice in addition to injurious utterances, and that the defendant seized upon the occasion as a pretext or otherwise availed himself of it maliciously in fact to slander him" — citing many cases, Starkie on Slander and Libel, § 670, Townsend, 349, 350, Newell, 389.

The relative provinces of Court and jury are thus defined:

"If the testimony bearing on the question of whether or not a communication is privileged is not conflicting, the question of its character in this respect would be one of law for the Court." Melcher v. Beeler, 48 Colo., 233;110 Pac., 181; 139 Am. St. Rep., 273

"The jury, however, will be the proper tribunal to determine the question of express malice, where evidence of ill will is forthcoming; but, if taken in connection with admitted facts, the words complained of are such as must have been used honestly and in good faith by the defendant, the Judge may withdraw the case from a jury and direct a verdict for the defendant." Denver Co. v. Holloway,34 Colo., 432; 83 Pac., 131; 3 L.R.A. (N.S.) 696; 1142 Am. St. Rep., 171; 7 Ann. Cas., 840.

"But even though a communication be privileged, the question of good faith, belief in the truth of the statements made, and the existence of actual malice, remain for the jury to determine when, under the issues and testimony, it is in issue, and the burden of establishing the facts which would render a privileged communication actionable rests upon the plaintiff (citing cases) but the falsity of the statements of a privileged communication is not sufficient of itself to raise the inference that they were maliciously inspired." Melcher v. Beeler, 48 Col., 233; 110 Pac., 181; 139 Am. St. Rep., 273.

In Locke v. Bradstreet (C.C.) 22 Fed., 771, it is held that whether a slander is within the protection afforded to a privileged communication is a question of law; that whether it is defamatory and actuated by malice is one of fact for the jury.

In Smith v. Youmans, 3 Hill, 85, the Court declares:

"Where it appears, on the plaintiff's showing, or on evidence produced by the defendant, that the publication was made on such an occasion, or under such circumstances as have been specified, and that the words were spokenbona fide in the discharge of some legal or moral duty. rendered necessary by the exigencies of society, the occasion affords a prima facie presumption to rebut the inference of malice, and the plaintiff would fail without further proof."

If this does not mean that, upon the conclusion that the occasion was privileged, a matter for the Court to decide when the testimony is all one way, the burden is cast upon the plaintiff to prove that the privilege has been abused. It seems difficult to frame language sufficiently clear to convey that idea, the Court says:

"Malice is, however, the essential ingredient which entitles the plaintiff to recover; and whatever may be the occasion of the speaking, except perhaps that of being in the course of a trial in a Court of Justice by a Judge or witness, it is competent for the plaintiff to reply in evidence, and to show express malice; to prove that the words were not spokenbona fide, but that the occasion was used only as a pretext for venting the defendant's malice."

The Court continues:

"The circumstances themselves, the manner of speaking, the temper manifested, without extrinsic evidence, may be enough to indicate malice, and to deprive the defendant of the benefit he might have derived from the occasion of the speaking, the question is one for the jury, whether the words spoken, if actionable, in themselves, were spoken maliciously, and with defamatory intention."

It seems clear therefore from this authority, supported as it is with practical unanimity by text-writers and decided cases, that, if malice may be inferred from the attending circumstances without extrinsic evidence, or from evidence by the plaintiff in reply, the question is one for the jury. It is equally true that, if the evidence is susceptible of only one reasonable inference, the matter becomes one for the Court's decision.

In the case at bar there was not the slightest extrinsic evidence in reply by the plaintiff, to show actual malice. Was there the slightest evidence in the attending circumstances to show it? It is submitted that there was not. No ill feeling was manifested by either Tevis or Roache against the plaintiff. They were upon legitimate business of the company; it was their right and duty to follow every lead in the investigation of the robbery. They had a perfect right, without protest on the part of Switzer, knowing of the purpose of the interview, to have him accompany them to the office. In that interview Tevis had a perfect right to interrogate him as to his movements on the night of the robbery, particularly under the circumstances which had so soon before preceded the robbery. He was seeking information and made the remark complained of in response to a flare-up by Switzer, as he himself testified, "I asked him if they thought that I had committed the crime." If Tevis had answered "Yes, I think so," Switzer would have had no cause of complaint, for the answer had been induced by him. Tevis did not go so far as that, but stated certain suspicious circumstances, and, what is extremely significant upon the issue of malice, accompanied his answer with these words: "But I might find the people you were visiting in Lena the night before and the night the robbery took place;" plainly implying that, if Switzer's previous statement of having called upon a young lady at Lena should be verified, even the suspicion would disappear. It appears upon the cross-examination of both Tevis and Roache that they followed up the statement of Switzer and found that he had in fact visited the young lady, and nothing further was done in the effort to connect Switzer with the robbery, both being satisfied of his innocence.

In Fahr v. Hayes, 50 N.J. Law, 275, 13 Atl., 261, it is held that the existence of a malicious motive may be legitimately gathered from the circumstances under which the communication was made, as where an opportunity was sought to make it before third persons not legally interested in hearing it, rather than to those interested. Certainly then the studied purpose that one, who doubtless was interested, should retire, would lead to a negation of malice.

Another ground upon which the qualifiedly privileged character of the communication may be sustained, is, according to the plaintiff's own statement the remark of Tevis, alleged to be slanderous, was made in response to a question from him: "I asked them (referring to Tevis) if they thought I had committed the crime and Mr. Tevis said," etc., and there is nothing to show that the agent went beyond the plaintiff's question to maliciously defame him; the circumstances affirmatively show the contrary.

"As a general proposition, where defamatory matter is published in the form of an answer made to inquiries by plaintiff or his agent, the answer is privileged, if the answer of defendant does not go beyond the plaintiff's question." 25 Cyc., 392.

"It may be laid down as a general rule that, where defamatory matter is published in response to inquiries made by the one defamed, or his authorized agent, it is qualifiedly privileged, if it does not go beyond the scope of the inquiries." Note 46 L.R.A. (N.S.) 104; Billings v. Fairbanks,136 Mass. 177; Palmer v. Hammerston, Cab. El., 36; Laughlin v. Schnitzer (Tex.Civ.App.)106 S.W., 908; Warr v. Jolly, 6 Car. P. 497; Haynes v. Leland,29 Me., 233; Patterson v. Frazer (Tex.Civ.App.)79 S.W., 1077; Louisville Co. v. Lancaster, 142 Ky. 122,133 S.W., 1155; Beeler v. Jackson, 64 Md., 589; 2 Atl., 916; Middlebyv. Effler, 118 Fed., 261; 55 C.C.A., 355.

In Bank v. Bader, 59 Minn., 329; 61 N.W., 328, the plaintiff cashier took a friend with him to see the defendant about certain reports said to have been circulated by him regarding the solvency of the bank. What was said by the defendant, thus induced by the cashier and his friend, was held privileged.

In Billings v. Fairbanks, 136 Mass. 177, the plaintiff had been charged with larceny by the defendants. He asked a friend to see the defendant about it, and while they were discussing the matter, the plaintiff stepped up and entered into the conversation, whereupon the defendant repeated the charge. Held that the communication was privileged.

In Beeler v. Jackson, 64 Md., 589; 2 Atl., 916, the plaintiff, an employee, had been discharged. Upon inquiry of the official by whom he had been discharged, he was informed that he had been discharged for stealing. He sued in slander, and it was held that the fact that he sought the information, made the language a privileged communication, unless the plaintiff could clearly show malice, abuse, or vilification in language, manner, or circumstances under which the communication was made. The Court said:

"It was very natural that the plaintiff should wish to know why he was discharged, and it was but simple justice that the defendant should truthfully and frankly tell him the reason. It was in the nature of a social duty that he should do so. It was a proper and legitimate occasion for him to speak freely and without reserve. In order to relieve him from all embarrassment, the law shields him from any previous consequences on account of his manner, provided it is given in truth, honesty, and fairness."

In Christopher v. Akin, 214 Mass. 332; 101 N.E., 971; 46 L.R.A. (N.S.), 104, a statement by an employer who had been compelled to pay for property taken from a house where he was doing work, to an employee whom he had discharged because he suspected him of having taken the property, and from whose pay he had deducted its value, in response to a question as to the cause of the deduction, that it was for property which the employee had stolen on the specified job, was privileged, although made in the presence of other employees.

"But where the interview in the presence of others was either invited or consented to by the person claiming to have been defamed, the occasion is qualifiedly privileged, whether such persons be strangers or kindred." Ecuyerv. Ins. Co., 101 Wn., 247; 172 Pac., 359; L.R.A. 1918E, 536.

In Rosenbaum v. Roche, 46 Tex. Civ. App. 237;101 S.W., 1164, it was held that, where an employer is requested by the father of a discharged employee to state why his daughter was discharged, the reply of the employer would be privileged. In Schultz v. Guldenstein,144 Mich., 636; 108 N.W., 96, the evidence showed that a report for which the defendant was responsible came to the knowledge of plaintiff and her husband; that the husband called on defendant, and, in response to a question, he stated that plaintiff was guilty of larceny. The circumstances were such as to preclude any presumption of malice. It was held that a qualified privilege attended the publication of the slanderous words, and defendant was responsible only in case the words were false and that malice existed.

"Therefore, with some possible qualifications, if the answer of the defendant did not go beyond the plaintiff's question, * * * the suit could not be maintained." Middlebyv. Effler, 118 Fed., 261; 55 C.C.A., 355, citing Odgm. Lib. S. 255 (3rd Ed.)

(3) As to the third question: The respondent appears to rely for the establishment of this element, solely upon the proximity of Wilkinson and the probability of his having heard the conversation. The parties do not agree upon the facts as to Wilkinson's location. The plaintiff first testified that Wilkinson was present; he then stated that Wilkinson "had left the room" but was standing by the open door; that the conversation was not in an unusually loud tone; that it could have been heard by any one then present. He does not state that Wilkinson could have heard it; there is no direct evidence that he did hear it; he was not a witness in the case. All sides agree that Wilkinson was requested to retire. In the absence of evidence that he did not hear or could probably have heard the conversation, and in view of the request that he retire from the room, so far as Wilkinson is concerned, there is no evidence tending to establish publication.

Although the respondent has made no other contention than that the element of publication was supplied by the proximity of Wilkinson, if the defense of qualified privilege should not be sustained, the uttering of the slander in the immediate presence and hearing of McLeod, though he was in collaboration with Tevis, we are inclined to think, supplied the element of publication. Assuming, however, that Wilkinson did hear the conversation, that fact suggests an inquiry as to its effect upon the character of the communication, if it should be otherwise established as qualifiedly privileged. In Fahr v. Hayes, 50 N.J. Law, 275; 13 Atl., 261, it is held that the fact that casual bystanders, not legally interested in the communication complained of, are present and hear it, is not of itself sufficient to remove the privilege.

"The fact that the slanderous language was incidentally overheard by persons in an adjoining room was not such a publication as would remove it from the protection of the privilege." McKenzie v. Burns Det. Agency (Minn.)183 N.W., 516.

See, also, to the same effect: Gildner v. Busse, 2 Ont. L. Rep., 561; Sheftall v. R. Co., 123 Ga., 589;51 S.E., 646; Pillard v. Oliver, Q.B., 474; Broughton v. McGrew (C.C.) 39 Fed., 672; 5 L.R.A., 406; Padmore v. Lawrence, 11 Ad. E., 380.

For these reasons the motion for a directed verdict should have been granted, and the judgment of this Court should be that the judgment of the Circuit Court be reversed, and the case remanded, with instructions to direct a verdict for the defendant under Rule 27 (90 S.E. xii).