Hamilton v. United States Pipe & Foundry Co.

213 F.2d 861, 34 L.R.R.M. (BNA) 2543, 1954 U.S. App. LEXIS 4055

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 25, 1954
• Docket: 14956
• Status: Published

Opinions

HOLMES, Circuit Judge.

The appellant sued the appellee, in a complaint and amended complaint containing nineteen counts, for damages for breach of contract, for libel and slander, and for refusal to pay him his accrued increment under a pension plan allegedly due him as compensation for services rendered appellee by the appellant while said plan was alleged to be in full force and prior to his discharge by the appellee. Jurisdiction of the action depends solely upon diversity of citizenship between the parties, the amount involved being over three thousand dollars exclusive of interest and costs. Consequently, the decision of this case is governed by the laws of Alabama, since the contract was made and was to be performed in that State, and all the tortious acts and injuries complained of by the appellant were done and performed by the appellee in Alabama, '

At a pretrial hearing, the court below reviewed its order, previously made, overruling the defendant’s motion to dismiss the suit; and, in lieu thereof, the court sustained said motion as to counts 13, 14, and 16, and overruled it as to counts 8, 9, 10, 11, 12, 15, and 17; it also overruled the defendant’s alternative motion to strike as to counts 8, 9, 10, and 11.

Thereafter, a jury was selected and the case stated to the jury by counsel, no objection being made by either side to anything said in the statement of the ease to the jury. After a plenary trial was had in which many witnesses, including the appellant, testified, the court below gave a peremptory instruction to the jury to return a verdict for the defendant, which was done, and judgment entered accordingly. The reasons for its ruling were orally stated by the court to the jury at the time of giving the peremptory charge. They are contained in the record, and seem to us to be correct and adequate. This is true to such an extent that we find it unnecessary to add anything of our own composition.

We agree that the letter, which was the basis of the libel, was conditionally privileged and that no malice was shown; also that there was no evidence from which the minds of fair and impartial jurors could infer, as a fact, the existence of malice at the time of the publication of such letter. In addition, the language of the letter was not libelous per se. The appellant had no right to require appellee to retain him in service; and, under the provisions of the pension plan, the appellant had no rights thereunder after the termination of his services. These and other reasons were assigned by the district judge for his granting- a direction to the jury to return a verdict for the defendant, as was done and on which the judgment appealed from was entered. We concur in the views expressed by the judge for his action, and we find no reversible error in the record.

Accordingly, the judgment is affirmed.

Affirmed.