Tennessee Coal, Iron & Railway Co. v. Kelly

DOWDELL, C. J. — Under the authority of Trimble v. Anderson, 79 Ala. 514, the writing set forth in the complaint and averred to be libelous is not per se libelous, and without the averment of special damages there would be no cause of action. Special damages are alleged, in that it is averred that the said writing caused the plaintiff to be discharged from his employment as a laborer at the sawmill of Waggoner & Hannon. The complaint avers that the defendant wrongfully caused the plaintiff to be discharged from his employment, and on this the claim for damages is predicated. The undisputed evidence shows that the sawmill which was being operated by Waggoner & Hannon in cutting and sawing timber on the defendant’s land was closed down on the 3rd day of July, 1906, and was never after that day operated by Waggoner & Hannon, but was after that time operated by the defendant. The letters which the plaintiff claims to have caused his discharge from the employment of Waggoner & Hannon were not written until July 5th, two days after the mill shut down on the 3rd. The plaintiff’s employment was by the day, and during the time he was at work he “ivas hauling logs for Waggoner.& Hannon, and helping his father build some houses for them”; “he was paid $1.50 per day, and was paid whenever he wanted it, and didn’t quit, but supposed he could quit whenever he wanted to; that he was working by the day.” Plaintiff was not at work on the 4th day of July, but on that day was fishing on the river with his father. [382] Waggoner testified that, after the mill was shut clown on . the 3rd of July, it was-never again operated by Waggoner & Hannon; that it was voluntarily turned over by them to the defendant, which afterwards operated it. This witness also testified that, “while the sawmill in question was owned by the firm of Waggoner & Hannon, it was run under the supervision of the defendant’s superintendent.” This testimony is undisputed. The witness testifies that Waggoner & Hannon while operating the sawmill, employed their own labor and paid for it; but he also testifies that, Avhen they contracted with the defendant to operate the sawmill on its land, there was an understanding that they were not to employ any one who was objectionable to the defendant. The writer is of the opinion, in which Justice Anderson concurs, that the defendant was entitled to the general affirmative charge as requested. The pleadings and issues in this case are the same as the pleadings and issues in the case of Tennessee Coal, Iron & Railroad Co. v. Henry Kelley, 163 Ala. 348, 50 South. 1008. Likewise the evidence in the íavo eases, on questions going to the merits, is substantially the same. The principles of law stated in the cited case are applicable here. Charge 5, held good in that case, and the refusal of which to the defendant constituted reversible error, is substantially the same as charge 8, in this case, Avhich was refused to the defendant.- Justices Simpson, McClellan, Mayfield, and Sayre concur in the conclusion that the refusal of charge No. 8 Avas error. Reversed and remanded.