Summary
In Renno the Mississippi Supreme Court considered whether a supervisory employee who explained to other employees that Renno was dismissed because he was a "bootlegger" was a communication which enjoyed a qualified privilege.
Summary of this case from Garziano v. E.I. Du Pont De Nemours & Co.Opinion
No. 31421.
December 3, 1934. Suggestion of Error Overruled January 14, 1935.
1. CORPORATIONS.
Employee in charge of oil company's bulk sales station and distribution of its products to its service stations, under contract requiring him to furnish equipment for delivery thereof, employ assistants, including service station attendants, approved by company and pay their salaries, for commissions on sale of products, held agent of company, not independent contractor.
2. CORPORATIONS.
Statement of oil company's distributing agent at meeting of its service station keepers and truck drivers that former station keeper was discharged because he was bootlegger held made while acting within scope of his employment, and hence binding on company.
3. LIBEL AND SLANDER.
Communication, made in good faith without malice by person having interest in or duty respecting subject-matter to person having corresponding interest or duty, is privileged, though containing otherwise slanderous matter.
4. LIBEL AND SLANDER.
Occasions on which public policy requires that man, honestly stating what he believes to be truth about another, without indirect or wrong motive, be protected against liability for slander, as where he and person to whom statement is made have legitimate common interest in subject-matter, are "occasions of qualified privilege."
5. LIBEL AND SLANDER.
Question of privilege in action for slander is for court on undisputed facts but, if facts are disputed, question whether necessary facts exist must be submitted to jury.
6. LIBEL AND SLANDER.
Statement of oil company's distributing agent at meeting of its service station keepers and truck drivers that former station keeper was discharged because he was bootlegger held qualifiedly privileged as matter of law.
7. LIBEL AND SLANDER.
Qualifiedly privileged statement is presumed to have been made in good faith, and burden of showing bad faith is on plaintiff in action for slander.
8. LIBEL AND SLANDER.
Communication, made in good faith, fairly, impartially, and without exaggeration or introduction of irrelevant defamatory matter, is privileged, though otherwise slanderous.
9. LIBEL AND SLANDER.
Communication, which goes beyond privileged occasion on which it is made, is not privileged.
10. LIBEL AND SLANDER.
To justify statement, otherwise slanderous, as privileged, it must not only be sincerely made, but there most be facts and circumstances reasonably imposing duty to make statement.
11. LIBEL AND SLANDER.
Agent's denial of his alleged slanderous statement concerning corporate principal's former employee and testimony as to his subsequent statement, also denied, that he was going to see that such employee did not get employment with other companies, held sufficient to take to jury questions of bad faith and malice in action for slander.
12. LIBEL AND SLANDER.
Statements of oil company's distributing agent to two of its service station keepers that former keeper of one of their stations was bootlegger held qualifiedly privileged.
13. CORPORATIONS.
Statement of oil company's distributing agent to keepers of two of its service stations that discharged keeper of one of such stations was bootlegger held binding on company.
14. LIBEL AND SLANDER.
Testimony of oil company's service station keepers as to statements by company's distributing agent that former station keeper was bootlegger, held competent in latter's action against such agent and company for slander.
APPEAL from circuit court of Hinds county.
HON.W.H. POTTER, Judge.
Action by Sam Renno against the Louisiana Oil Corporation and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Chalmers Potter, Walter W. Capers and Green, Green Jackson, all of Jackson, and H.C. Walker, Jr., of Shreveport, La., for appellants.
Failure to exclude testimony of witness Star constituted prejudicial error.
Courtney v. American Express Co., 113 S.E. 332, 24 A.L.R. 128; Interstate Co. v. Garnett, 122 So. 373.
The court erred in failing to exclude the testimony of the plaintiff and in failing to grant the peremptory instruction requested by the Louisiana Oil Corporation on the ground that the contract between J.E. Bowman and the Louisiana Oil Corporation created relationship of independent contractor, and as a matter of law the Louisiana Oil Corporation could not be held liable.
39 C.J. 1108; West Lbr. Co. v. Powell, 221 S.W. 339; Edmundson v. Coca Cola Co., 150 S.W. 273; Texas Co. v. Lewis, 144 So. 373; Watson v. Holiman, 153 So. 669; 39 C.J., page 1269, pars. 1453 and 1454; 14 R.C.L., page 71, par. 8; Texas Co. v. Brice, 26 Fed. 2d 164, 73 L.Ed. 555; Standard Oil v. Anderson, 212 U.S. 15, 53 L.Ed. 480; Burgess v. Standard Oil, 262 Fed. 767; Delaware Hudson, etc. v. Vanderpool, 292 Fed. 690; Gulf Refining Co. v. Wilkinson, 114 So. 503; Lumber Co. v. Pittman, 154 Miss. 1, 122 So. 191; Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Crescent Baking Co. v. Denton et al., 147 Miss. 639, 122 So. 191; Callahan Const. Co. v. Rayburn, 110 Miss. 107, 69 So. 669; Gulf Refining Co. v. Nations, 145 So. 327; Rogers v. Lewis, 144 So. 373.
The words alleged to have been uttered being communications to the Company's retailers concerning company business, a qualified privilege existed and no liability attaches.
17 R.C.L. 341; 36 C.J. 1265; Cartwright-Caps Co. v. Fischel, 74 So. 278, Ann. Cas. 1917E 985, L.R.A. 1918F, 566; Alabama V. Ry. Co. v. Brooks, 13 So. 847; Denver Public Warehouse Co. v. Holloway, 83 P. 131, L.R.A. (N.S.) 696; Grantham v. Wilkes, 100 So. 673; Myers v. Hodges, 44 So. 357; Hines v. Shoemaker, 52 So. 705; Vacicek v. Trojack, 226 S.W. 508; Moore v. Thompson, 52 N.W. 1001; Townsend on Slander and Libel (4 Ed.), sec. 287, page 512; Sharp v. Bolar, 45 S.W. 90; Bee Publishing Co. v. Shields, 94 N.W. 1029; Gattis v. Kilgo, 38 S.E. 931.
If the action is against joint defendants, other publications by a co-defendant are inadmissible to show malice on the part of the other defendant or defendants, where such publications have not been induced or authorized by the latter. Thus, in an action against a corporation and its agent, it is inadmissible to show evidence of other publications by the agent to establish malice on the part of the corporation.
37 C.J. 80; Courtney v. American Express Co., 113 S.E. 332, 24 A.L.R. 128.
The verdict of five thouand dollars is excessive.
Newell on Slander and Libel, secs. 780 and 790, page 881; 37 C.J. 128; Hines v. Shumaker, 52 So. 705.
Lotterhos Travis, of Jackson, for appellee.
The court did not err in failing to exclude testimony of the witness Starr.
37 C.J., page 79.
Proof that the defamatory statements declared on, or words of similar import, had been spoken or written at other times, is admissible to show malice, whether such statements were made before those for which damages are sought or afterwards, even after commencement of suit.
Newell, Slander and Libel (4 Ed.), sec. 287; 2 Abbott's Trial Evidence (2 Ed.), page 1802; 7 R.C.L., Corporations, sec. 684, page 684; 3 Abbott's Trial Evidence (4 Ed.), sec. 1180, page 1279; 1 Wigmore on Evidence (2 Ed.), sec. 403; McClave-Brooks Co. v. Belzoni Oil Works, 113 Miss. 500, 74 So. 332; 17 R.C.L., sec. 167, page 410.
Bowman was an agent of the Louisiana Oil Corporation and not an independent contractor, and the court did not err in refusing to grant a peremptory instruction for the defendant, Louisiana Oil Corporation.
Gulf Refining Co. v. Nations, 145 So. 327; Watson v. Holiman, 153 So. 669; Pan American Petroleum Corp. v. Pate, 157 Miss. 822, 126 So. 480.
The court did not err in declining to grant instructions requested by the defendants on qualified privilege.
The person speaking the slanderous words must be under a duty of making the communication to a certain other person, to whom he makes such communication, in the performance of his duty. In the case at bar Bowman and the Louisiana Oil Corporation owed no duty to the persons present at the sales meeting to state to them that Sam Renno had been bootlegging.
The appellants have completely failed to show that a privileged occasion existed when Bowman made the slanderous statements.
Appellants cannot claim that the court erred with reference to the matter of privilege, because the appellants did not plead privilege in the court below.
Y. M.V.R.R. Co. v. Watson, 104 Miss. 672, 61 So. 657; Sections 533 and 535, Code of 1930; 37 C.J., Libel and Slander, page 39; State v. Morgan, 59 Miss. 349.
No conceivable privilege could have existed except as between Bowman and Murphy, because Murphy was the man operating the station formerly operated by Renno and the gallonage of that station was under discussion when the slander was spoken. Murphy alone could have any interest in the gallonage at that particular station.
Even if it should be assumed that all of the other filling station operators who were present and in the employ of the Louisiana Oil Corporation could have had an interest in whether or not Sam Renno had been bootlegging because of some remote connection between that statement and the gallonage at their stations, and even if it should be assumed that Bowman owed a duty to all of these filling station operators to make the slanderous statement to them, yet we submit that no such duty could have been owed to the truck drivers and clerical employees who were present at the meeting.
Even on a privileged occasion the privilege would not protect from liability if a statement known to be false was made as being true. A denial of the fact of the statement, coupled with the fact that the appellants did not plead or attempt to prove a justification because of the truth of the slander, would destroy the right to rely upon a privilege, because the statement, if made, — and the jury has conclusively settled that proposition — could not have been made in good faith.
Hines v. Shumaker, 97 Miss. 669, 52 So. 705; Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 252; N.O. G.N.R.R. Co. v. Frazer, 158 Miss. 407, 130 So. 493; Hodges v. Cunningham, 161 Miss. 395, 135 So. 215.
The verdict of five thousand dollars was not excessive.
Doherty v. Price Mercantile Co., 132 Miss. 39, 95 So. 790; Interstate Co. v. Garnett, 154 Miss. 325, 122 So. 373, 122 So. 756; Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 252; 17 R.C.L., Libel and Slander, sec. 188, page 429.
Argued orally by Marcellus C. Green, for appellant, and by Fred Lotterhos, for appellee.
Appellee brought this action in the circuit court of Hinds county against appellants, Louisiana Oil Corporation and J.E. Bowman, to recover damages for an alleged slander uttered by Bowman, which appellee claims was done in the course of his employment as agent of the oil company. The trial resulted in a verdict and judgment in the sum of five thousand dollars against both appellants. From that judgment they prosecute this appeal.
These are the questions in the case: Whether or not appellant Bowman was an independent contractor, or the agent of the oil company acting within the scope of his authority, at the time of the utterance by him of the alleged slander. Whether or not the statement, if made, was a qualified privilege, and, if a qualified privilege, whether it was uttered in good faith. Whether or not the court erred in failing to exclude certain evidence offered by appellee, and whether or not the court erred in refusing certain instructions requested by appellants.
Appellant oil company was engaged in the Jackson territory in this state, as well as elsewhere in the state, in the sale and distribution of oil, gasoline, and other petroleum products. In the Jackson territory it owned or controlled by lease something like twenty service stations where its products were distributed by retail. It had a bulk sales station in the city of Jackson where its products were kept in bulk for distribution to the various service stations. Bowman was in the employ of the company; he was in charge of the bulk sales station, and had the supervision and control of the distribution of the products to the service stations. The respective rights and obligations of Bowman and the oil company were fixed by a written contract, the pertinent provisions of which are substantially as follows: It expressly names Bowman as the agent of the oil company in more than one place; it provides that he shall devote his entire time and energy to the sale of the oil company's products; that the oil company shall own or control by lease all the service stations; that all delivery equipment, including trucks, carrying cans, hose, funnels, etc., shall be furnished by Bowman, but shall be satisfactory to the oil company; that the oil company shall sell Bowman any of such equipment when needed at actual cost, plus ten per cent for handling charge and plus freight; that Bowman shall pay all operating expenses of the business in his territory; that he shall maintain an adequate and competent force and pay their salaries and expenses, but such force shall meet the approval of the oil company; that at the termination of the contract the oil company reserves the right to purchase from Bowman all the equipment, including trucks, carrying cans, hose, funnels, etc., at a price to be agreed upon; that Bowman shall have painted at least once a year, and more often, if the oil company requires it, all equipment used in the distribution and delivery of the products, for which the oil company agrees to furnish the necessary amount of paint, Bowman to furnish the labor for the painting which is to be done according to specifications of the oil company; that the price of all products handled by Bowman shall be determined by the oil company; that all sales shall be in the name of the oil company, and any credit sales shall be first approved by its credit department, Bowman to be responsible for the price of any credit sales not so approved; that Bowman's compensation shall be a commission on the sale of the products.
Under this contract, was Bowman the agent of the oil company, or an independent contractor? We are of opinion that under the authority of Gulf Refining Company v. Nations, 167 Miss. 315, 145 So. 327, and Texas Company v. Pete Mills, 156 So. 866, decided October 15, 1934, 171 Miss. 231, he was the agent of the oil company. The oil company owned the bulk sales plant and all the service stations, and all the products handled. Bowman furnished the necessary equipment for the delivery of the products, employed the force, including the service station attendants, and paid their salaries, but the entire force employed by him had to meet the approval of the oil company. Bowman's compensation was a commission. Under the contract he had little, if any, independence. The business and the manner by which it was carried on was the oil company's and not his. We think the further statement of the case in the following paragraph demonstrates that, when Bowman used the language in question, he was acting within the scope of his employment, and thereby bound the oil company as well as himself.
According to appellee's evidence, Bowman said, in the presence of probably twenty employees of the oil company, that he (appellee) had been discharged as keeper of one of the oil company's service stations in the Jackson territory because he was a bootlegger, meaning that he was engaged in the sale of intoxicating liquors in violation of both state and federal laws. Both of the appellants contend that this statement was made under circumstances and conditions which made it a qualified privilege — privileged if made without malice and in good faith. The necessary facts to develop this question are as follows: From time to time Bowman held meetings of all the service station keepers in the bulk sales station, and at such meetings the truck drivers attended. On the occasion in question there were present at the meeting station keepers and truck drivers and one Condon, who was the oil company's state sales manager. At this meeting, as was the custom, the business in hand was discussed. Bowman presided and called on each service station keeper for a report of his sales, the gallonage, and other matters connected with his station. They made their reports, and ways and means of increasing the business were discussed. Appellee had been one of the station keepers and had been discharged by Bowman. At the time of this meeting, Murphy was in charge of appellee's former station. In his report he stated, in substance, that, if his calls for intoxicating liquors were added to his calls for gasoline and other products handled at his station, his gallonage would be larger. Thereupon Bowman stated that appellee was a bootlegger, and had been discharged for that reason. This statement by Bowman was amply proven by witnesses for appellee who were present. Bowman and other witnesses on behalf of appellants denied outright that the statement, or anything akin thereto, was made.
A communication made in good faith and on a subject-matter in which the person making it has an interest, or in reference to which he has a duty, is privileged if made to a person or persons having a corresponding interest or duty, even though it contains matter which without this privilege would be slanderous, provided the statement is made without malice and in good faith. 17 R.C.L. 341; New Orleans Great Northern R. Co. v. Frazer, 158 Miss. 407, 130 So. 493; Newell on Slander and Libel (4 Ed.), sec. 341.
There are certain occasions on which a man is entitled to state what he believes to be the truth about another, and in doing so public policy requires that he shall be protected, provided he makes the statement honestly and not for any indirect or wrong motive. Such occasions are called occasions of qualified privilege, for the reason that the protection is not absolute, but depends entirely upon the honesty of purpose with which the statement is made. Among such statements is one made on a subject-matter in which the person making it, and the person to whom it is made, have a legitimate common interest. Gatley Libel and Slander, p. 193. The underlying principle is public policy. The question of privilege is for the court on a given state of facts; if the facts are undisputed, the court decides the question and instructs the jury peremptorily; if the facts are disputed, the court submits the question to the jury to determine whether the necessary facts existed. Newell on Slander and Libel (4 Ed.), secs. 345, 346 and 395.
We are of opinion that under the law the undisputed facts show that Bowman's statement was qualifiedly privileged. Whether the service station keepers should have abstained from the illicit sale of intoxicating liquors in their stations was properly a matter for consideration and discussion at the meeting. It pertained to the success of the business in hand and concerned all present. At appellants' request the court should have instructed the jury peremptorily to that effect. The court evidently treated the occasion as one not privileged, because it refused instructions requested by appellants to submit that question to the jury.
The occasion being privileged, the question then is whether or not the statement was made without malice and in good faith. Where is the burden of proof on this question? The presumption of good faith goes with the privilege; therefore, the burden of showing bad faith is on the plaintiff. Newell on Slander and Libel (4 Ed.), sec. 346, and cases in the note. If the communication has been made in good faith, fairly, impartially, without exaggeration or the introduction of irrelevant defamatory matter, the communication is privileged. It must be remembered, however, that, although the occasion be privileged, it is not every communication that is made on such occasion that is privileged. A communication which goes beyond the occasion exceeds the privilege. The statement must be sincerely made, but this alone will not justify the person making it; there must be facts and circumstances which reasonably impose on him the duty to make the statement. Id., secs. 394 and 402.
Was there sufficient evidence to go to the jury on the issue of bad faith? Bowman testified, and so did other witnesses for the appellants, that no such statement, or anything like it, was made at the meeting. The verdict of the jury, of course, meant that the statement was in fact made. There was no attempt on the part of appellants to show the probable truth of the statement, if made. We think it logically follows that Bowman's denial of the statement under those conditions tended to prove his bad faith, if such statement was made. It is true that appellee did not otherwise prove the bad faith, but it tended to prove itself, so to speak. To illustrate: On a privileged occasion A asks B if C is an honest man, and B answers that he is a thief; C sues B for slander, B denies making the statement, and makes no attempt to justify it, if made. May not it be reasonably inferred that, if the statement was made, it was made in bad faith? We think so. And, add to that what Bowman stated to Murphy on a subsequent occasion, which was also denied by Bowman. Murphy, as shown above, was one of the station keepers. Bowman was talking to him about the illicit sale of intoxicating liquors in the stations; he stated that he was going to see that appellee did not get employment with any of the major oil companies. Eagerness to prevent a former employee from obtaining other employment elsewhere has the appearance of malice. Newell on Slander and Libel (4 Ed.), sec. 407. On the same occasion Bowman stated to Murphy that appellee was a bootlegger, and on another occasion he made the same statement to Starr, another witness, which he also denied. Starr, at the time, was one of the station keepers. We think, for the reasons already stated, that these communications to both Murphy and Starr were qualifiedly privileged; that they were privileged to the same extent as the statement made by Bowman at the meeting in the bulk sales plant. The witnesses were discussing the business of their principal, how it should be conducted, and all were interested in that business. Those statements to Murphy and Starr were, therefore, just as much binding on the oil company as they were on Bowman. Appellants objected to the admission of their testimony. For the reasons stated, we think it was competent.
The controlling principles of law were not given the jury in the instructions. Without taking up and considering the given and refused instructions, it will be apparent at once from what we have said that that is true. On this record the only questions for the jury were whether or not the statement was made at the meeting, and, if made, whether made in good faith, and the amount of damages to be awarded if made and made in bad faith.
Reversed and remanded.