Neely v. Payne

Sykes, J., delivered the opinion of the court. The appellant, as plaintiff in the circuit court, brought suit against the Director General of Railroads, the Louisville & Nashville Railway Company, and the American — 861 — Railway Express Company for damages for slander and libel. There are three counts contained in the declaration. As originally drawn, in the first count of the declaration the plaintiff attempted to charge a slander under the actionable word statute. Section 10, Code of 1906 (section 1, Hemingway’s Code). A demurrer was properly sustained to this count because a corporation cannot be held liable under this statute. Dixie Fire Ins. Co. v. Betty, 101 Miss. 880, 58 So. 705. With the leave of court this count was amended by striking out those portions of it relating to the statutory slander, and was left as a count under the common law. The demurrers of the express and railroad companies were again interposed and sustained to this count and the demurrer of the Director General as to it was overruled. Among other grounds of demurrer to this amended count are these: First, because said count seeks to recover upon several and separate causes of action; third, because no facts are alleged showing any publication of the alleged libelous matters. This count of the declaration in substance alleges that the "plaintiff was a telegraph operator in the employ of the Director General in the operation of the Louisville & Nashville Railroad; that one R. N. Blaize at the time in question was the agent of the Director General of Railroads and also of the Louisville & Nashville Railway Company and the American Express Company, at Pass Christian, Mississippi, and as such agent he had charge and control of the depot, the telegraph business and the express business at this place; that these defendants acting through their agent Blaize for the purpose of insulting and injuring the plaintiff charged him with being a thief and having stolen a sum of money ; and that the agent Blaize, as agent of these defendants, several times in the presence of others made these charges. In another para-' graph of this count it is alleged that the defendants, acting through Blaize, reported either by message, letter, or orally to the assistant superintendent of the Louisville & Nashville Railroad, and also to W. Graham, another employee of the defendants, and to certain officials of the express com — 862 — pany, that the plaintiff had stolen a sum of money out of the depot, all of which charges were calculated to lead to a breach of the peace, and were insulting. In another paragraph it is further charged that this agent, in pursuance of a desire to injure the plaintiff’s reputation and good name, discharged plaintiff and took out of the pay due him the sum of twenty dollars, charging and accusing him at that time of having been a thief and having stolen this amount. It will be noted that in these three separate paragraphs of this count of the declaration it is attempted to hold these defendants liable for three or more separate and distinct publications of a slander. In the first and third instances the attempt seems to be made to charge a slander published to people not in the employ of any of these defendants, while in the second instance it is' attempted to charge a slander made by an agent to other agents of the corporation. Each publication of a slanderous charge presents a cause of action, and should be stated in a separate count of the declaration. An entirely different defense, namely, that of a privileged communication, could be interposed to an alleged slander by an ageilt made or published to another agent of the same employer, while this defense, of course, could not be interposed where the slander is published to a stranger. It will also be noted that the attempted charges of every one of these alleged slanders are entirely too general, vague and indefinite. That different causes of action should be contained in different courts has been decided by this court in the case of Illinois Central R. R. Co. v. Abrams, 84 Miss. 456, 36 So. 542. The demurrer of the Director General should have been sustained to this amended count The second count of the declaration is for an alleged libel contained in the following letter written by R. N. Blaize to Leo Murtagh as follows: “Dear Leo: Yours 12th, received. When speaking to your brother Edward I did not say that you could get your job back here, but if you would write or go and see Mr. Boykin that I would help you to get reinstated. — 863 — “As far as your innocence is concerned no one ' ever doubted it, but still at the same time, your actions at the time, in shielding Neeley placed you in a bad light. ^“The mere fact that you confessed to Mr. Spradley and I, that you helped him reseal the package, is evidence enough of being an accomplice. “Neely told Mr. Boykin that you enticed him into the job. You told so many conflicting stories at the time, that it would baffle any one. “When I approached you and told you that Neely said some one else was in the office that night besides himself, meaning you, you became enraged, and said that if he accused you of having anything to do with the theft that you would knock hell out of him. “I felt so safe and sure of your innocence after making such a statement, that I had never given you a thought about having anything to do with the robbery, but the very next morning, when you were brought face to face with Neely and Mr. Spradley you caved in, and told him that you had rifled the package with Neely, but did not take anything, and also admitted that you resealed them. “I have letter from Neely admitting his guilt, but still insists that he was not alone in the job. “All of my report to Mr. Bose and Mr. Boykin I have exonerated you of having anything to do with the robbery, being a victim only of Circumstances, that is trying to shield a thief, and ruining your own reputation. “Some ugly things have been said about my character by you and your mother. “The mere fact of the whole matter is that too much talking was done by you and her. “Accusing me of such a damnable lie as balling you out at the Greek’s corner, and other things as bad is enough to make my heart turn to stone. “What I had to tell you I told you in private in my office where no one could hear it, and if you repeated it to outsiders you-made the blunders. — 864 — “If you write Mr. Boykin and ask for reinstatement, and the matter is referred to1 me you can rest assured that I will help you out. “As I told you before Neely is a natural born crook, and if you had exposed him at the time, as you should have you would be working here today, instead of bearing the burden of his thievery. “I showed Mr. Boykin some time ago all the letters received from Neely admitting his guilt, and he seems to be of the same opinion as I, that is you were led into a trap by Neely after he had already committed the crime. , “The best thing to do would be to take a trip to Mobile and explain the matter to him thoroughly, and I feel sure that he will help you out. “Yours truly, “(Signed). R. N. Blaize, Agent.” The defendants claimed, first, that they would prove that the contents of this letter about the plaintiff were true; and, second, that the letter was not written by Blaize while acting as ¿he agent of any of the defendants or within the scope of his employment. The case was submitted to the jury on this count upon these two issues, and a verdict was returned in favor of the Director General. Briefly stated the material facts as testified to are as follows: L.. Y. Neely and Leo Murtagh were in the employ of the Director General, as telegraph operators. Neely went on duty at four o’clock p. m. and was relieved at twelve o’clock by Leo Murtagh. Blaize was the station agent generally in charge of the. railroad and express business. The express packages were placed in a closet which opened into the room where the telegraph operators worked, the door of this closet was usually kept closed and locked. The telegraph operators had nothing to do with the express packages and had no right to go into this closet. The' testimony for the plaintiff, as detailed by himself and Leo Murtagh, is to the effect that shortly after he went on duty he noticed that the door to the closet was open, and that an express — 865 — package had become unsealed and was partially open. When Leo Murtagh relieved him at 12 o’clock he told him about this fact, and the two together took the package, put it on the table of the room where they worked, opened it, found it was some sort of a “punching board” with different kinds of prizes; among others there were several ten or twenty-dollar gold pieces made into watch fobs. The plaintiff himself testified that they noticed some of these gold pieces and also noticed that some of the prizes were missing; that he and Murtagh took nothing out of the package, and after examining it resealed it with black sealing wax and put it back in the closet. Neither of these witnesses notified any one the next morning about finding the package unsealed and about their opening and resealing it. The package was delivered to the consignee the next morning. The plaintiff, according to his testimony, happened to go into the store of the consignee just about the time the package wrns delivered and helped the consignee check up the missing articles. The consignee at once notified Mr. Blaize that these articles were missing. Mr. Blaize-testified that the package was sealed when he left his office in the afternoon, but it was sealed with red sealing wax; that he locked the door to the express closet and left the key in a drawer in the office; that the only sealing wax in tbe office where these operators worked was black sealing wax. He at once began an investigation, which resulted in the questioning of these boys several times. They at first denied all knowledge of the matter, but finally admitted taking the package out of the express room, opening it, and examining its contents, but denied taking any gold pieces therefrom. One of the defendants’ witnesses testified that the plaintiff admitted to him that he and Murtagh discussed taking some-of tbe gold pieces and also a watch, but did not take them. The testimony for the defendant further showed that the adopted mother of Leo Murtagh was a sister of Mr. Blaize; that the letter was written after these men had been discharged from the service, and that the agent Blaize had nothing whatever — 866 — to do with the employing or discharging of telegraph operators. The testimony further shows that both Leo Murtagh and his stepmother, Mr. Blaize’s sister, were trying to get Mr. Blaize to interest himself in getting Leo Murtagh another position with the railroad. Mr. Blaize further testified that these two men admitted their guilt to him, and agreed to pay for what had been stolen from the package if he would try to hush the matter up. There is other testimony in the record, both oral and some letters written by the plaintiff to Blaize. From all of which testimony we unhesitatingly say that the jury were warranted in believing that Neely and Murtagh had taken some gold pieces from the package; in other words, that the jury could believe the truthfulness of the charges made in the letter. Second, it was a proper question for the jury to say whether or not in writing the letter Blaize was acting as the agent of the Director General within the scope of his employment, or that it was merely a personal letter. There was'no error committed by the court in favor of the defendant in submitting these questions to the jury upon the second count. The third count alleges that the agent Blaize accused the plaintiff of having stolen a sum of money from the depot; that this accusation was made to George Cronovich, marshal of the city of Pass Christian. There is no testimony whatever to support this alleged slander to Cronovich. Upon the trial of the cause the plaintiff offered to prove that the agent Blaize, in a telephonic conversation with his sister, Mrs. Murtagh, stated to her that it was a good thing these two young men had to deal with him; otherwise they would both have been behind the bars for stealing at that time. Over the objection of the defendant this testimony was excluded, because there was no specific charge in the declaration of this alleged slander. The plaintiff was denied the privilege of amending his declaration by making this charge. We think the court was correct in declining to allow this amendment during the — 867 — trial. It was another separate and distinct alleged publication of a slander, and the defendant could not have been prepared at that time to meet it. From all of the facts in the case it does not appear that the plaintiff by exercising reasonable diligence could not have ascertained that he could make such proof and have amended his declaration before the trial. The circuit court certainly did not abuse-its discretion in refusing to allow this amendment. Upon motion of the defendants, the express company and the railroad company, the suit was dismissed as to them, and only submitted to the jury with the Director General as the defendant.- This action of the court was proper. This suit was brought after the passage of the Transportation Act (41 Stat. 456) by Congress. Section 206 of this act reads as follows: “Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use, or operation by the president of the railroad or system of transportation of any carrier . ! . of such character as prior to federal control could have been brought against such carrier, may, after the termination of federal control, be brought against an agent designated by the President for such purpose, which agent shall be designated by the President within thirty days after the passage of this act.” It will be noted that the above section of this act expressly provides that after the termination of federal control suits may be brought against an agent designated by the President for such purpose. This act is mandatory, and suits of this character must be brought alone against the agent designated by the President, and not against the carriers. This question is set at rest in the case of Mo. Pac. R. R. Co. v. Ault, 255 U. S. -, 41 Sup. Ct. 593, 65 L. Ed. 647. Under this Ault Case there could not have been any recovery of punitory damages againso the Director General. In this case this question was submitted to the — 868 — jury and the jury returned a verdict in favor of the defendant. It therefore follows that the judgment of the lower court is affirmed. Affirmed.