Norfolk & Washington Steamboat Co. v. Davis

12 App. D.C. 306, 1898 U.S. App. LEXIS 3161

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 8, 1898
• Docket: No. 739
• Status: Published

Opinion

Mr. Chief Justice Alvey

delivered the opinion of the Court:

This action is brought for an alleged libel published by the authority of the defendant, the present appellant, against the appellee, the plaintiff in the court below. The libel complained of is contained in a letter written by John Callahan to K. C. Murray, dated August 23,1893. It was in reply to a letter of Murray, written from Norfolk, Va., and dated August 21, 1893, that the letter of Callahan was written. These two letters will be found set out in full by the reporter, in the prefatory statement of this case.

It appears that the defendant is a corporation and was, in 1893, operating a line of steamers between Washington City, D. C., Fortress Monroe, and Norfolk, Va., and at the time the letter containing the alleged libel was written Callahan was the general superintendent and manager of the defendant’s line of steamers, with full authority to employ and discharge all employees of the company, from the commanders of the steamers to the lowest subordinate in the service. The plaintiff Davis had been for several years prior to that time captain of the steamer “Washington,” one of the steamers of the line, and remained in such employment until August 21, 1893, when he was notified by Callahan that his employment by the company would terminate at the end of that month.

It also appears that Murray was the friend of Davis, and upon being informed by the latter that he had been discharged or relieved from the command of the steamer “ Washington,” Murray thereupon immediately wrote the letter to Callahan of August 21, 1893, and which letter brought forth the letter from Callahan of the 23d of August, 1893. This letter from Callahan, as will be observed, professes. on its face to speak for the company, and is signed by him as the general superintendent of the company. And whether it was written under such circumstances as to bind the company for the consequences of its publication is one of the principal questions in the case.

The letter to Murray is alleged to be libelous, and it doubtless is so, for it contains grave charges against the plaintiff as to his want of efficiency and capacity as commander in the management of the steamer from which he had been discharged. Murray is not shown to have been in any manner interested in the affairs of the defendant company, nor in any employment that the plaintiff was seeking to obtain at the time; his only interest being of a mere personal friend, desiring to Sid, as far as he could, the success of one whom he regarded as worthy and meritorious.

In the declaration it is alleged that the plaintiff had been engaged in the business and profession of a captain and pilot on various steamers carrying freight and passengers on the Chesapsake Bay and the Potomac River, and other tributaries of said bay, and had held a license as a pilot on said bay and river for many years; that before the committing by the defendant of the grievances hereafter mentioned, he had been in the employ of the defendant for a long time, to wit, two years and a half, in the capacity of captain on one or more of the defendant’s steamboats, and had faithfully performed his duty in such employment; and that the plaintiff, before the committing by the defendant of the grievances hereafter mentioned, had quitted and left the service of the defendant, and was likely to be retained and employed by the board of the Chesapeake and its tributaries of the State of Virginia as captain of the Virginia oyster fleet; yet the defendant, well knowing the premises, but contriving and wickedly and maliciously intending to injure the plaintiff in his character and reputation, as a captain and pilot as aforesaid, and to bring him into public scandal and disgrace, etc., published the letter heretofore referred .to, written to said Murray. And in the second count of the declaration, it is alleged that by means of the committing of said grievances the plaintiff has been greatly injured in his good name and character, and brought into public scandal and disgrace with and among all to whom he is in anywise known, and been caused to be believed and suspected to be inefficient and wholly unfit to be employed in the line of his business and profession as a captain and pilot as aforesaid; and by reason whereof the plaintiff has not only lost and been deprived of the support and emoluments which might and otherwise would have accrued to him by reason of his being so employed but also has remained and continued, and is still out of employment, and deprived of the opportunity of supporting himself by means of his business and profession, and has been and is by and on account of the said premises otherwise greatly injured and damnified, to the sum, etc.

To each count of the declaration the defendant pleaded not guilty.

At the trial the letters heretofore referred to were given in evidence by the plaintiff, and there was evidence on both sides introduced reflecting upon the question, whether the letter of Callahan to Murray was written within the scope of the authority delegated to him by the defendant company, or whether that letter had been subsequently approved by the company or the president thereof. There is no dispute or question as to the fact that the letter was written and sent by Callahan to Murray. That fact is conceded. But, assuming that the letter had been written by Callahan, within the scope of his authority as superintendent, or that the writing of the letter had been approved by the defendant, and the latter was therefore liable, unless exonerated by privilege, the principal ground of defence relied on by the defendant is, that the occasion of the writing and publishing of the letter was privileged, and that the only question left for determination was, whether the facts and circumstances given in evidence on the part of the plaintiff, were sufficient to show malice in fact on the part of the defendant, and thus overcome and defeat the supposed privilege of the communication.

Upon the close of the evidence, each party offered a series of prayers for instruction to the jury. The three prayers offered by the plaintiff were all granted, while of the thirteen prayers offered by the defendant, only the second, fifth and eighth were granted, and all the rest were refused. The court gave a separate instruction in lieu or place of the thirteenth prayer offered by the defendant. All the prayers offered, both by plaintiff and defendant, will be found set out in full by the reporter, in the statement of the case. The verdict and judgment being against the defendant, it has appealed, and, as grounds for reversal of the judgment, has assigned seven errors, most of which have reference to the rulings of the court denying the privilege claimed for the communication from Callahan to Murray.

Before proceeding to consider the specific errors assigned, it would seem to he proper to state a few of the general well-settled principles of law, applicable to the facts of the case. The onus of proof, of course, was upon the plaintiff to establish the fact of the publication of the letter containing the libel declared on, and that the letter was written and published under such circumstances as to render the defendant liable therefor. We do not understand it to be seriously argued that the letter is not libelous, and if the circumstances of its publication be such as to make it the act of the defendant, by its authorized agent, that the plaintiff would not be entitled to recover, unless, indeed, the occasion of the writing and publishing the letter afforded to the defendant or its agent a qualified privilege for the communication. But it is contended on the part of the defendant, 1st, that the letter to Murray was not the act, or the authorized act, of the defendant, but was the mere personal act of Callahan, the general agent and superintendent of the defendant; and, 2d, that if the letter was written under such circumstances as to make it the act of the defendant, there were facts and circumstances that afforded a qualified privilege that would exempt the defendant from liability.

In regard to the first of these contentions, that of the absence of authority in Callahan to bind the defendant by the letter to Murray, we must bear in mind the fact that Callahan appears to have been invested with general and almost supreme authority in the management of the operative affairs of the line of steamers. He had full and complete authority in respect to the employment and discharge of all the employees engaged about the steamers; and it was in the exercise of this authority that he discharged the plaintiff from his position as the commander of the steamer “Washington.” The letter of Murray to Callahan had reference to the authority of the latter as general superintendent, for by that letter Callahan was requested to reinstate the plaintiff in his former position. But instead of simply replying to the letter that he deemed it to be to the interest of his company to put some other person in the place of the plaintiff, Callahan thought proper to go into many circumstances and occurrences that he must have known would disparage and throw discredit upon the plaintiff as a commander of a steamer. This he was not asked to do by the letter from Murray. The letter from Callahan to Murray professes upon its face to have been written by virtue of his position of general superintendent of the defendant; and the subsequent refusal of those in authority to interfere when the matter was brought to their attention was a fact, not without weight, to be considered by the jury, in determining the question wheter the letter was written and published within the scope of the authority delegated to Callahan as general agent and manager, or by the subsequent approval of the defendant company. The question was very fully and fairly submitted to the jury, and they have found adversely to the contention of the defendant.

Seeing, then, according to the finding of the jury, that the defendant is liable for whatever is actionable in the letter written by its superintendent, Callahan, the next question is, do the circumstances of the case show that the letter complained of was written upon an occasion that entitled the defendant to the benefit and protection of a privileged communication? And while all disputed facts were required to be submitted to the jury, the question of privilege was one of law for the court to decide. It is argued that because Murray had taken a special interest in his friend, the plaintiff, and had recommended him for appointment to the position of captain of the Virginia oyster fleet, he therefore' had a special interest in the matter of the discharge of the plaintiff from the service of the defendant company, and, consequently, there was a duty, at least of a moral nature, on the part of the superintendent of the defendant, to make the communication to Murray. But to this proposition we can not accede. We know of no well-recognized authority that carries the principle of privileged communication to such an extent. There was no duty either legal or moral that required the making of the communication to Murray, and there was no such interest in Murray as would have entitled him to request such communication even if he had been disposed to make it; but he made no request for the communication of the matter complained of by the plaintiff. The reason assigned by Callahan for the extended communication is stated in the letter to Murray. He says: “I have written you at greater length than I anticipated, but it was necessary in order to show you and other friends a few of the reasons only which necessitated the removal of Capt. Davis.”

There has been considerable diversity of opinion as to what constitutes a privileged occasion and how far the occasion will justify communication; and some of the cases have carried the privilege to a great extent. But, as said by the Supreme Court, in the case of White v. Nicholls, 3 How. 287: “It is difficult to conceive how, in society where rights and duties are relative and mutual, there can be tolerated those who are privileged to do injury legibus soluti; and still more difficult to imagine, how such a privilege could be instituted or tolerated upon the principles of social good. The privilege spoken of in the books should, in our opinion, be taken with strong and well-defined qualifications. It properly signifies this, and nothing more: That the excepted instances shall so far change the ordinary rule with respect to slanderous or libelous matter, as to remove the regular and usual presumption of malice, and to make it incumbent on the party complaining to show malice, either by the construction of the spoken or written matter, or by facts and circumstances connected with that matter, or with the situation of the parties, adequate to authorize the conclusion. Thus, in the case of Cockayne v. Hodgkisson, 5 C. & P. 543, we find it declared by Parke, Baron, ‘That every wilful and unauthorized publication injurious to the character of another is a libel; but where the writer is acting on any duty, legal or moral, towards the person to whom he writes, or is bound by his situation to protect the interests of such person, that which he writes under such circumstances is a privileged communication, unless the writer be actuated by malice.’ So, in Wright v. Woodgate, 2 Cr. M. & R. 573, it is said, ‘a privileged communication means nothing more than that the occasion of making it rebuts the prim,a facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff, and throw's upon him the onus of proving malice in fact; but not of proving it by extrinsic evidence only; he has still a right to require that the alleged libel itself shall be submitted to the jury, that they may judge whether there is evidence of malice on the face of it.’ ”

The question whether a letter or other communication, addressed by one party to another, is within the privilege of communication, depends not only upon the occasion that calls forth,the publication, but also upon the -character of the communication itself. A party may have a privilege and a protection in making a communication in regard to the qualities or character of another person, but if he abuse that occasion, and goes much beyond what is required or proper in his statements relating to that other person, the occasion will not protect him. A communication is only privileged within the rule when made in good faith, in answer to one having an interest in the information sought ; and it will be privileged, even if volunteered, when the party to whom the communication is made has an interest in it, and the party by whom it is made stands in such relation to him as to make it a reasonable social duty, or at least proper that he should give the information, as a just and reasonable means to guard the person receiving the information against an act or dealing that might be prejudicial to him. This appears to be substantially the result of the authorities, or of the best considered cases; though each cáse depends more or less upon its own special circumstances, and especially as those circumstances may reflect upon the relation of the parties, and the question of bona fides of the party making the communication. Cockayne v. Hodgkisson, 5 C. & P. 543; Todd v. Hawkins, 8 C. & P. 88; Sunderlin v. Bradstreet, 46 N. Y. 188; 2 Greenl. Ev., Sec. 421. This question has been recently considered by this court in the case of Bailey v. Holland, 7 App. D. C. 184; and also in a recent English case of Hebdilch v. McIlwaine, 2. L. R. Q. B. Div. (1894) 54, decided by the Court of Appeal, in which cases the general principle just stated is fully maintained.

The mere friendly relations of the parties being insufficient to create a duty on the part of the superintendent, Callahan, to write the letter to Murray, there was nothing in the case that justified or brought the voluntary communication within the rule of privileged communication; and the court below was entirely right in refusing to submit the question of what was claimed to be a privilege, to the consideration of the jury. York v. Johnson, 116 Mass. 482 ; The Count Joannes v. Bennett, 5 Allen, 169; Krebs v. Oliver, 12 Gray, 239; Byam v. Collins, 111 N. Y. 143. As was well said in the last-mentioned case, “every one owes a moral duty, not to become a volunteer in a matter in which he has no legal duty or personal interest, to defame another, unless he can find a j ustification in som e pressing emergency. ’ ’

Now, with the general principles that we have just stated kept in view, there can be but little difficulty in disposing of the several assignments of error relied on by the defendant. The first error assigned, predicated of supposed error in the instructions granted at the instance of the plaintiff, has no ground of support on the facts of the case. It necessarily follows from what we have already said, that there was no question of privileged communication in the case; and the court below having so decided, there were no facts relating to such question to be submitted to the jury. The instructions granted fully submitted all the facts that in any manner reflected upon the question of the liability of the defendant company for the act of Callahan in writing the letter to Murray. The question whether Callahan wrote and mailed the letter to Murray in his character of general superintendent of the affairs of the defendant company, and in the ordinary course of his duties as such superintendent, was upon the whole evidence submitted to the jury, and, in addition to the instructions granted on the request of the plaintiff, the jury were further instructed upon the question of the defendant’s liability and under ■what state of facts the defendant would not be liable for the act of Callahan in wilting the letter. By the fifth prayer for instruction, and granted on request of the defendant, the court directed the jury, “that, if the jury shall find from the whole evidence that the letter set forth in the declaration was written by Callahan in reply to the letter in evidence signed by K. C. Murray and addressed to the Hon. John Callahan, and that the writing and publication thereof were the personal and independent acts of said Callahan in reference to the communication addressed to him personally (if the jury shall find that such commnication was addressed to the said Callahan personally), and that the reply thereto set forth in the declaration was not written or published by the said Callahan in the course of his duties or service as genera,! superintendent of the defendant company, and was not after such publication approved or ratified by the defendant (if the jury so find), then the said Callahan is alone responsible for all the consequences of the writing and publication of said letter and the plaintiff is not entitled to recover in this action.” And further, as if to multiply instruction, and to emphasize the contention of the defendant as to its nonliability for the act of Callahan in writing the letter, the court, by the eighth instruction asked and granted at the instance of the defendant, directed the jury lí that in this case it is a question fon the jury to determine whether the corporation defendant authorized the publication of the letter set forth in the declaration, and whether it ratified the publication of said letter after the same had been made, and whether said publication was made by its servant or agent in the course of his employment, and whether the writing and publication of said letter was within the scope of the duties of such servant or agent; and if the jury shall find from the whole evidence that the defendant corporation did not authorize the writing and publication of said letter, and did not ratify the same or the publication thereof after the same had been published, and that the writing and publication of said letter was not made by said Callahan within the scope of his duties or authority as general superintendent of the defendant company, then the plaintiff is not entitled to recover in this action.” And, finally, the court, in lieu of the thirteenth prayer offered by the defendant, instructed the jury in terms that substantially covered the whole case, and which instruction was decidedly in support of the contention of the defendant. The instruction was in these terms: “In order for the plaintiff to recover in this action, the burden is upon him to prove to the satisfaction of the jury by preponderance of the evidence that said Callahan wrote and published the letter complained of for and on behalf of the defendant and in the course of his duties as general superintendent thereof, or that said defendant subsequently ratified and approved the said act of the said Callahan, directly or indirectly, and that the damages, if any, resulting to the plaintiff from the publication thereof (the letter) arose from the publication of said letter by the defendant.”

Now, with these instructions before them, it is hardly conceivable that the jury could be misled as to the ground upon which they might find their verdict for either plaintiff or defendant, as they might conclude from the whole evidence. The whole question of fact was fully aiid clearly presented to them; and under the instructions of the court there were but two material questions for their consideration and determination: 1st, whether the defendant was liable for the act of Callahan in writing and publishing the letter; and, 2d, if they should find for the plaintiff, what amount of damages should be awarded. With respect to the first of these questions, enough has already been said; and it only remains to examine the instructions of the court in respect to the principles upon which the damages could be assessed, in the event that the verdict was found for the plaintiff.

All question of special damages, as declared for in the declaration, was entirely eliminated from the case a,nd withdrawn from the consideration of the jury by the second prayer offered by the defendant, and which was granted by the court. This instruction was founded upon the idea that there was an entire absence of evidence of any such special damage as that claimed in the declaration. But this left the declaration good for all such general damages as the nature of the wrong declared for would justify the jury in awarding the plaintiff as compensation merely. For the law is well settled that where the libel is actionable per se, as where the words employed imputed to the master of a vessel the want of skill, or that he was frequently drunk, and therefore unreliable and untrustworthy, the action is maintainable without either allegation or proof of special damages. Irwin v. Brandwood, 33 Law J. Ex. 257. indeed, where the libel is in itself actionable, no proof of special damage is necessary to enable the plaintiff to recover, although, special damage be alleged. The plaintiff can not, in that case, however, any more than where the special damage is the gist of the action, gave evidence of any merely consequential damage which is not alleged in the declaration. Herrick v. Lapham, 10 Johns. 281-284. But where the libel is in itself actionable, no special damage need be laid or proved; the law in such case presuming that the publishing of the libel has in itself a natural and necessary tendency to injure the plaintiff. Malachy v. Soper, 3 Bing. N. C. 382. And where in an action for libel or slander the cause of action is proved against the defendant, the jury are not limited to nominal damages merely, though no evidence is given on behalf of the plaintiff; and where the libel is actionable without the averment of special damages, the jury may take into consideration not only the injury that has arisen, but that which may thereafter arise from the publication of the libel. Ingram v. Lawson, 6 Bing. N. Cas. 212; Tripp v. Thomas, 3 B. & Cr. 427; Mayne on Damages, 626. This is because no subsequently accruing injury from the libel would afford a new ground of action to the plaintiff.

The court below in its instructions to the jury was careful to limit the inquiry as to the measure of damages that could be allowed; and clearly defined the distinction between general and special damages in such cases. By granting the second prayer, of the defendant, as we have already stated, all question of special damage for the possible rejection of the plaintiff in his application for the position of captain or commander of the oyster fleet of Virginia was put out of the case. And the court was careful to instruct the jury that there was no ground shown upon which exemplary damages could be allowed; and then told the jury that they should confine themselves, in considering the question of damages, if they should find for the plaintiff, to giving him what would fairly and fully compensate him for the injuries which he had suffered, taking into consideration the different elements to which the court had referred. And the court then proceeded in its instruction, and said:

“And in that connection you should give him only such damages, if you find for him, as have accrued to him by the publication of this libel by the defendant. I mean by that that there is some evidence here tending to show that Capt. Davis himself read this letter to some friends, and you will remember the extent of that evidence. I do not undertake to say exactly what it is, but if you should be of opinion that the damages wore increased by any publication he gave he would not be entitled to recover for any damage to him which his own publication of it occasioned. He would only be entitled to recover such damages as the publication by the defendant occasioned.”

These restrictive and qualifying instructions, when read in connection with'the general instruction upon the subject of damages, would seem to have guarded the rights of the defendant amply. By the general instruction on the measure of damages, the jury were directed that “in estimating the damages they should render their verdict for such sum as the jury believed from the evidence would fully and fairly compensate the plaintiff for the injury suffered by him by reason of the writing and sending of the said letter to said Murray, including injuries, if any, done thereby to the plaintiff in his occupation and calling as ship captain and pilot, and his mental suffering arising out of the statements and accusations contained in the said letter, and the tendency thereof to bring the plaintiff into disgrace and disrepute among the men of his calling and his Mends and acquaintances and the community in general in which he resides.”

It thus appears that the question as to the mode of assessing the damages, with the limitations and restrictions contained in the instructions to the jury, was most fairly submitted to the jury; and that there was no error in respect of any of the rulings of the court as to what was the proper measure of damages. To have granted the third and fourth prayers of the defendant would have tended to mislead the jury rather than instruct them, in view of all the instructions given upon the subject of damages..

With respect to the sixth assignment of error relating to a question of evidence raised in the course of the trial, the record shows that the matter upon which the question arose was ruled out by the court, and that there is in fact no such question here as that attempted to be presented. The statement made by the plaintiff and produced and read, so far as it was intended, by that means to prove the falsity of the libel complained of, was incompetent evidence, and when first produced the court restricted its admission to a single purpose, and did not allow it to prove the falsity of the libelous matter sued on. The counsel for the defendant appear to have understood that the object of the testimony of the plaintiff, in regard to the statement made and offered in evidence, was to prove the falsity of the libel sued on, and hence, without any plea of justification, but under the plea of not guilty, proposed to go into proof of the truth of the libelous matter; to which the plaintiff objected, and the objection being sustained by the court, the defendant noted an exception to the ruling. Whereupon, counsel for the plaintiff, to remove all question and difficulty upon the subject, in open court, withdrew from the record what was said by the plaintiff as to the truth of the statement produced by him and read in the hearing of the jury. The court then remarked: “That is considered out. I instructed the jury at the time that it was evidence of nothing, except so far as it might tend to show that Captain Davis attempted to bring to the attention of the board of directors this alleged libel. ” The defendant still claimed the benefit of the exception reserved; but it is manifest, that, as the subject matter upon which the exception was based was withdrawn from the record, the exception presents no question for review here.

Upon fall review of this case, we find nothing to warrant a reversal of the judgment appealed from, and that judgment must be affirmed; and it is so ordered.

Judgment affirmed.