Summary
In Killebrew v. Jackson City Lines, 225 Miss. 84, 82 So.2d 648 (1955), a bus operator brought a suit for slander against his former employer, based on a conversation with his supervisor in which the supervisor accused the operator of taking fares.
Summary of this case from Bush v. MullenOpinion
No. 39732.
October 10, 1955.
1. Libel and slander — accusations — theft of bus fares — qualified privilege.
Where superintendent of Bus company, in presence of assistant, falsely accused employee bus operator of taking fares, but conversation occurred in private, closed room, as preliminary to discharge of employee, words were spoken on occasion of qualified privilege, and were not actionable slander.
2. Libel and slander — qualified privilege — accusations — in scope of privilege — made in good faith — without malice.
When an employer discusses with employee charges made against employee affecting his employment, a qualified privilege exists, and statements made within scope of privilege, in good faith, without malice, are not actionable slander.
3. Libel and slander — qualified privilege — accusations — truth or falsity irrelevant — absence of malice or bad faith.
Where qualified privilege from actionable slander exists, truth or falsity of communication is irrelevant as long as bad faith or malice is not present.
4. Libel and slander — qualified privilege — good faith — bad faith — presumptions — burden of proof.
Presumption of good faith goes with qualified privilege from slander, and burden of showing bad faith or malice is on plaintiff.
5. Libel and slander — qualified privilege — destroyed when.
Qualified privilege from actionable slander is not destroyed without proof that words were motivated by spite, ill will, malicious purpose, or with wanton and reckless disregard of truth.
6. Libel and slander — qualified privilege — where plaintiff invites accusations.
Where bus operator, who had been falsely accused of taking fares during course of privileged conversation with superintendent of Bus company, invited accusation by asking if superintendent was saying that he took the money, he could not claim he was thereby slandered.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, Judge.
Barnett, Jones Montgomery, Jackson, for appellant.
I. The Trial Court erred in granting the defendant's Instruction No. 3 that instructed the jury not to consider the falsity of the slander charge in arriving at their verdict.
II. The Court erred in granting defendant's Instruction Nos. 5 and 7 that told the jury that unless they believed from the preponderance of the credible evidence that R.J. Cortright spoke the "exact words as alleged in the declaration," then it was the duty of the jury to find for the defendant. Fritz v. Williams (Miss.), 16 So. 359; Sellers v. Powell, 168 Miss. 682, 152 So. 494; Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 252; 53 C.J.S., Sec. 194 p. 304.
III. The Trial Court erred in admitting evidence over plaintiff's objection to the effect that plaintiff had the right under the Union's contract with Jackson City Lines to arbitrate his discharge and to have his job restored to him with back pay if, as a result thereof, the charges were shown to be untrue.
IV. The proof in this case showed by a preponderance of the evidence that the false and slanderous charge was made and that it was slanderous per se and that it was published. Kroger Groc. Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335.
V. The Court erred in granting defendant's Instructions Nos. 5 and 7 for the further reason that such instructions conflict with the plaintiff's Instruction No. 1. Bridges v. Krapps, 214 Miss. 126, 58 So.2d 364; Columbus G. RR. Co. v. Phillips, 160 Miss. 390, 133 So. 123; Herod v. Carroll County, 171 Miss. 217, 157 So. 533; Hines v. Lockhart (Miss.), 105 So. 449; Illinois Cent. RR. Co. v. McGowan, 92 Miss. 693, 46 So. 55; Jackson v. Leggett, 186 Miss. 123, 189 So. 180; Jefferson Standard Life Ins. Co. v. Jeffcoats, 164 Miss. 659, 143 So. 842; Kansas City M.B. RR. Co. v. Lilly (Miss.), 8 So. 644; Rawlings v. Inglebritzen, 211 Miss. 760, 50 So.2d 630; Sellers v. Lofton, 149 Miss. 849, 116 So. 104; Solomon v. City Compress Co., 69 Miss. 319, 12 So. 239; Yazoo M.V. RR. Co. v. Cornelius, 131 Miss. 37, 95 So. 90.
Young Daniel, Jackson, for appellee.
I. The words charged, if spoken, were spoken on an occasion of qualified privilege, in good faith and without malice, and even if published, are not actionable.
A.R.J. Cortright, A.B. Smith, and appellant had an interest and corresponding duty in the subject matter and the occasion was, therefore, one of qualified privilege. Gardner v. Standard Oil Co., 179 Miss. 176, 175 So. 203; Kroger Groc. Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335; Louisiana Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705, 98 A.L.R. 1296; Montgomery Ward Co. v. Watson, 55 F.2d 184; Scott-Burr Stores Corp. v. Edgar, 181 Miss. 486, 177 So. 766; 33 Am. Jur., Sec. 171 p. 166.
B. The record in the present case contains uncontradicted evidence of good faith and is devoid of evidence sufficient to support an inference of actual malice. Louisiana Oil Corp. v. Renno, supra; Missouri Pacific Transp. Co. v. Beard, 179 Miss. 450, 176 So. 156; Montgomery Ward Co. v. Skinner, 200 Miss. 44, 25 So.2d 572; Montgomery Ward Co. v. Watson, supra; Scott-Burr Stores Corp. v. Edgar, supra; Willis v. McCarty-Holman Co., 187 Miss. 381, 193 So. 337.
C. The statement alleged was made in response to an inquiry by appellant and he cannot recover thereon. C.I.T. Corp. v. Correro, 192 Miss. 522, 6 So.2d 588.
II. Even if the words were spoken as alleged, and the privilege was exceeded, there was no publication. Kroger Groc. Baking Co. v. Harpole, supra; Scott-Burr Stores Corp. v. Edgar, supra; 33 Am. Jur., Sec. 90 p. 103.
III. A case will not be reversed for misdirection to the jury where the right result was reached. Hale v. Hinkle Mercantile Co., 159 Miss. 796, 132 So. 751; Hubbard v. Southern Ry. Co., 120 Miss. 834, 83 So. 247; Murry Chevrolet Co. v. Cotten, 169 Miss. 521, 152 So. 657; Powell v. J.J. Newman Lbr. Co., 174 Miss. 685, 165 So. 299; Sikes v. Thomas, 192 Miss. 647, 7 So.2d 527; Williams v. McClain, 180 Miss. 6, 176 So. 717; Rule 11, Rules of Supreme Court.
IV. Response to appellant's brief.
A. The Trial Court committed no error in instructing the jury that the truth or falsity of the slander charge was not in issue. Bass v. Burnett, 151 Miss. 852, 119 So. 827; Conroy v. Breland, 185 Miss. 787, 189 So. 814; Davis v. State, 108 Miss. 710, 67 So. 178; Montgomery Ward Co. v. Watson, supra; Taylor v. Standard Oil Co., 184 Miss. 392, 186 So. 294; Yazoo M.V. RR. Co. v. Decker, 150 Miss. 621, 116 So. 287; 33 Am. Jur., Sec. 117 p. 117.
B. If there is any error in appellee's Instructions Nos. 5 and 7, then such error is cured by other instructions. City of Meridian v. King, 194 Miss. 162, 11 So.2d 205; Clisby v. Mobile O. RR. Co., 78 Miss. 937, 29 So. 913; Tech Lines, Inc. v. Keller, 174 Miss. 527, 165 So. 203; Westerfield Meeks v. Catlett, 153 Miss. 228, 120 So. 458; Vol. II, Alexander's Miss. Jury Instructions, p. 61.
C. No error was committed in admitting evidence of appellant's rights under appellee's contract with the local labor Union. Johnson v. Walker, 86 Miss. 757, 49 So. 49.
APPELLANT IN REPLY.
I. In reply to appellee's Point I. Montgomery Ward Co. v. Skinner, 200 Miss. 44, 25 So.2d 572; 33 Am. Jur., Sec. 126 p. 124.
A. The case in question, although being ostensibly a case of privilege, nevertheless, the slanderous statements exceeded the exigencies of the occasion and, hence, any qualified privilege that may have existed in the case was lost and the slanderous statements lose their status as qualifiedly privileged. Hines v. Shumaker, 97 Miss. 669, 52 So. 705; Louisiana Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705; Montgomery Ward Co. v. Watson, 55 F.2d 184; Rape v. Mobile Ohio RR. Co., 136 Miss. 38, 100 So. 585, 35 A.L.R. 1422.
B. The defense of qualified privilege is not available to appellee for the reason that the privilege was lost by the statement being made within the hearing of those who had no interest in the subject matter nor were charged with any duty with reference thereto and who were within earshot at the instance of the appellee, Jackson City Lines. Arkansas Associated Telephone Co. v. Blankenship, 211 Ark. 645, 201 S.W.2d 1019; Invester v. Coe, 33 Ga. App. 6, 127 S.E. 790; Kroger Groc. Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335; Lanham v. Keyes, 31 Ga. App. 635, 121 S.E. 856; Montgomery Ward Co. v. Nance, 165 Va. 363, 182 S.E. 264; Perry Bros. Variety Stores v. Layton, 119 Tex. 130, 25 S.W.2d 319; Sheftall v. Georgia Cent. RR. Co., 123 Ga. 589, 51 S.E. 646; 53 C.J.S., Sec. 97 p. 154.
The appellant appeals from adverse judgment in his slander suit against the Jackson City Lines, and assigns several grounds for reversal. The appellee contends that it was entitled to a directed verdict, and, therefore, the jury returned the only verdict authorized by law. We state the facts most favorable to the appellant-plaintiff, inasmuch as we are of the opinion that appellee was entitled to a directed verdict.
Appellant was a bus operator for appellee. The security department of the parent company of appellee made a check of the appellee's operations, which was done from time to time in accordance with the company's policy. A written report of the results of this security check was made to appellee's superintendent of transportation. The person who made the security check was not known to the superintendent, but the head of that department of the parent company was known to the superintendent. This report was kept by appellee's superintendent, Mr. Cortright, under lock and key, and no one was permitted to see it except Smith, the assistant superintendent. Cortright and Smith examined the report, and at Cortright's direction, Smith saw the appellant and told him Cortright wanted to see him in his office. Smith and appellant went to Cortright's office. The door was closed. Appellant was asked to be seated, after which Cortright told him, "Killebrew, you had two passengers on your bus paid their fares and it did not go through the box (a fare box that rings when the money goes through); that was on April 30th." Cortright then said, "Killebrew, you know what that means." He also told Killebrew that there was another check on May 4th when another fare was paid that did not go through the box. Killebrew then asked: "Mr. Cortright, are you saying that I took the money?" Cortright replied, "Yes, you took the money." Killebrew denied it. Cortright stated, "The money was never deposited in the fare box, you are bound to have taken the money, it was not deposited in the fare box, they paid the fare." Killebrew said: "They paid the fare and it was not deposited in the fare box, and I was bound to have taken the money; is that what you are saying?" Cortright answered "yes" and again stated, "You know what this means." The appellant said, "Yes, it means I'm fired." Cortright then replied, "Yes, and to save the company and you some trouble you can turn in your badge." They had some further conversation to like effect and appellee turned in his badge and quit his job.
Appellant inquired who told Cortright that he had kept the money and Cortright told him that one of the company checkers turned it in. Thereafter, appellant told those who had asked him why he was fired, and told in all about four hundred people. The office where all this took place was the one regularly used by Cortright and Smith in directing the operation of the appellee's business. The room was air conditioned. The walls were about six inches thick and constructed of masonry. The door was one and three-quarters inches thick. There was a hole about the size of a half dollar in the wall between Cortright's office and the clerical office for a telephone cable. There was only one opening into the office, and that was a door leading into the clerical office in which there were several desks used by the ladies who worked for appellee. These desks were immediately outside and next to Cortright's office so that the persons sitting at these desks would be about eight feet from people sitting in Cortright's office, separated, of course, by the door and wall. Two ladies were working in the outer office on the occasion. Persons in the outer office could hear through the wall and door so that conversations had in Cortright's office could be heard in the outer office, at least in part. We think the proof in this regard would have authorized a finding that if one listened in the outer office, a conversation had in Cortright's office could be heard. The only two ladies who were in the outer office testified that they heard nothing of the conversation involved in this case. Appellant denied he ever took any fares and no proof was offered that he did, therefore, the charge that he took any fares was false as far as this record disclosed.
(Hn 1) The question is: Were the alleged slanderous words spoken on an occasion of qualified privilege without malice and in good faith? If so, they were not actionable.
There can be no doubt that the occasion was one of qualified privilege. The words were heard only by appellant and Smith. Smith was Cortright's assistant. They were all directly interested in the matter. It was the duty of Cortright and Smith to protect the interests of their employer. Appellant was the subject of the discussion. He was entitled to know why disceplinary action was being taken as to his handling of the company's money. Cortright was performing his duty; and the place was appropriate. The law guards jealously the right to the enjoyment of a good reputation, but public policy, good morals, the interests of society, and sound business demand that an employer, or his representative, be permitted to discuss freely with an employee, or his chosen representative, charges made against the employee affecting the latter's employment. (Hn 2) On such occasions there is a qualified privilege, and statements made within the scope of the privilege, in good faith and without malice, are not actionable. (Hn 3) The truth or falsity of the communication is not involved so long as there is no bad faith or malice. This case falls squarely within the rule as to qualified privilege. Scott-Burr Stores Corp. v. Edgar, 181 Miss. 486, 177 So. 766; Montgomery Ward Co. v. Watson, 55 F.2d 184; Kroger Grocery Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335; Louisiana Oil Corp. v. Renno, 173 Miss. 609, 137 So. 705.
(Hn 4) There was no proof of any actual or express malice. The jury could not have inferred malice or bad faith. The presumption of good faith goes with the privilege. The burden of showing bad faith or malice was cast upon the plaintiff. (Hn 5) In the absence of proof that the words were spoken by motives of spite, ill will, malicious purpose or with a wanton and reckless disregard of whether the words were true or false, the privilege of the occasion was not destroyed. Louisiana Oil Co. v. Renno, supra; Scott-Burr Stores v. Edgar, supra.
We have considered the case of Kroger Grocery Baking Co. v. Harpole, supra, wherein it was held that the circumstances were such that the witness Ramsey, who denied he heard the appellee charged with taking money, must have heard what was said, then there was presented a jury question on the question of publication. The Harpole case is not in point. Ramsey heard the conversation and was present within twenty feet of the speaker. The witness detailed the conversation but denied hearing the damaging part. The Court held: "It is clear from Ramsey's testimony that he heard this conversation, and if defamatory words were spoken, he heard them." Thus a jury issue was made. We have no comparable situation in this case.
(Hn 6) We have carefully considered the argument that Cortright exceeded the exigencies of the occasion. It is contended that Cortright could have called appellant into his office and fired him and this would have ended the entire matter; that Cortright's duty required him to do no more; that Cortright had no right to slander appellant in accomplishing the job of firing him. We cannot follow this argument for two reasons. First, in discipling appellant in the privacy of the superintendent's office, Cortright had the right to freely discuss the matter in which both had an interest. Killebrew had a right to know why he was being discharged, and it was the company's right to tell him. Secondly, Cortright simply related the facts as reported to him and never accused appellant of taking the company's money until appellant asked the direct question: "Mr. Cortright, are you saying I took the money?", to which Cortright replied, "Yes, you took the money." Then followed other conversation in which Cortright explained that since the fares were paid and did not go into the fare box, he was bound to have taken the money. To the extent of the latter part of the conversation wherein appellant was accused of taking the money, the appellant invited the charge, and cannot claim he was thereby slandered. C.I.T. Corporation v. Correro, 192 Miss. 522, 6 So.2d 588.
The case was submitted to the jury and a verdict was returned in favor of the defendant, the appellee here. We deem it unnecessary to examine into the instructions given the jury as to which appellant assigns errors. The appellee requested and was refused a peremptory instruction, which should have been given. The plaintiff having failed to make out a case, the judgment should be and is affirmed. Hubbard v. Southern Ry. Co., 120 Miss. 834, 83 So. 247.
Affirmed.
Roberds, P.J., and Kyle, Lee and Ethridge, JJ., concur.