Jenkins v. So. Ry. Co. , 130 S.C. 180 ( 1924 )

I concur with Mr. Justice Cothran's opinion upon the questions raised by the appeal.

There is another matter in the case not presented by the exceptions, but evidenced by the undisputed facts, that in my judgment should be passed upon.

In considering the question now being raised for the first time in this opinion, differing as it does from the points deemed necessary to be passed upon by the learned Judge, and also differing from the questions raised by the appellants' attorneys, and upon the advisability of now passing upon it, I find myself unhappily not in accord with the members of this Court. I apprehend that some grave difficulty has been overlooked by me in reaching my conclusions, but if it exist I have been unable to discover it, and I can but give expression to my understanding of the law.

Nowhere in the case was the law of privileged coommunications either charged by the Judge or, so far as the record shows, called to his attention. The case was apparently tried upon the theory that the words were actionable and were not privileged.

In the first place, it is well to note that there is a distinction between written and oral scandal. The first will lie for words that hold one up to public shame and contumely; not so in the case of slander. In 1812, in the principal case of Thorley v. Lord Kerry, 4 Taunt., 355; 3 Camp., 214 (S.C., 13 R.R., 626), Lord Mansfield said the distinction had been recognized for over a century, having first been announced in the time of Charles II, and, whilst he was inclined to criticize the distinction, he said he was bound by the law as he found it and as it had been announced as representing the views of Lord Hardwicke, Hall, and Holt, C.J.

This distinction that an action may be maintained for words written, for which an action could not be maintained if they were merely spoken, has been recognized in practically all of the States and in this State in Mayrant v.Richardson, 1 Nott McC., 347, 9 Am. Dec., 707.

The statements set out in the complaint even if they be regarded as amounting to slander, and upon that question I express no opinion, are clearly privileged. The Earle of Halsbury says:

"An occasion is privileged where the person who makes a communication has an interest or a duty (legal, moral or social, of perfect or imperfect obligation) to make it to the persons to whom he does make it; and the person to whom he does make it has a corresponding interest or duty to receive it." Volume 18, p. 686, § 1263.

And based his definition upon the leading cases of Toogoodv. Spyring (1834) 1 Cr. M. R., 181 where Parke, B., defined "a statement made on a privileged occasion as a statement made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned." In Harrison v. Bush (1855) 5 E. B., 344, the Court said:

"A communication bona fide made upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminatory matter which without the privilege would be slanderous and actionable. `Duty' * * * cannot be confined to legal duties, * * * but must include moral and social duties of imperfect obligation,"

— and in accord is Lord Esher's opinion in Pullman v. Hill Company (1891) 1 Q.B., 524. The American authorities are to the same effect. Briggs v. Garnett, 111 Pa., 404;2 A., 513; 56 Am. Rep., 274. Montgomery v. Knox,20 Fla., 372. Press Co. v. Stewart, 119 Pa., 584; 14 A., 51.Halstead v. Nelson, 36 Hon (N.Y.) 149. Van Wyck v.Aspinwall, 17 N.Y., 190. Brow v. Hathaway, 13 Allen (Mass.) 239. Stallings v. Newman, 26 Ala., 300; 62 Am. Dec., 723.

Nor is a privileged occasion destroyed by the fact that third persons happen to be present. "I am not aware that it was ever deemed essential to the protection of such communication that it should be made to some person interested in the inquiry alone and not in the presence of a third person. If made with honesty of purpose to a party who has an interest in the inquiry (and that has been very liberally construed), the simple fact that there has been some casual bystander cannot alter the nature of the transaction. The business of life could not well be carried on if such restraints were imposed on this and similar comunications and if, on every occasion on which they were made, they were not protected unless strictly private. Toogood v. Spyring, supra, by Parke, B., and Lord Ellenborough in the case of Dunmanv. Bigg, 1 Camp., 268, said: "The communications of business are not to be beset with actions of slander"; which were cited with approval by Lord Chief Justice Campbell in Taylor v. Hawkins, 16 Q.B., 308. And the tendency of all modern Courts is to widen the application of the rule, or at least to interpret it with an eye to the convenience and general welfare of society. A different situation would have been presented had the defendant sought the opportunity of making the statements in the presence of third persons.

Where a statement is a qualified privilege, there can be no recovery, unless malice is shown, and what do I mean by malice in this sense? If a man make a statement not on a privileged occasion, he is presumed to mean the legal effect of his words; and his is legal malice. But, where the occasion is a privileged one, as in this case, there must be proof of malice in fact. This was determined to be the law and the distinction between ordinary slander and slander under privilege as far back as the case of Bromage et al. v. Prosser, 4 Barn. C., 247 (1825). Beeler v. Jackson, 64 Mr., 593; 2 A., 916. Weatherston v. Hawkins, 1 Term. R., 110. Childv. Affleck, 9 Barn C., 403.

In a case of absolute privilege, as for instance in Court proceedings, comments by the Judge, jury, witness, or counsel, no amount of malice in fact will render the libeler or slanderer liable. Moore v. Mfg. Nat. Bank et al.,123 N.Y., 420; 25 N.E., 1048; 11 L.R.A., 753. Keeley v. GreatNorthern Ry. Co., 156 Wis. 181; 145 N.W., 664; L.R.A., 1915C., 986.

It was necessary in this case, being one of qualified privilege, in order for the plaintiff to recover, to prove, not only that the statements of the agent were false, but that he was actuated by malice in fact. What does the record show? The defendant Cooper was the agent of the Southern Railway Company at the station of Kline. As such it was his duty to follow the rules established by the Southern Railway Company for the protection of its interest in the service of its patrons.

One of these rules was that in the shipping of watermelons the freight had to be paid in advance, or a bond, of course approved by the railway company, furnished for the payment of all freight charges. The plaintiff, not having the money to pay the freight on five carloads of watermelons, went to a Mr. Rizer, who had furnished a bond for a similar purpose, to get permission to use his bond for the purpose of covering the freight charges on his five cars of watermelons. Mr. Rizer was not in Kline, but was seen at Barnwell, where, in the presence of a witness, he affixed his signature to the paper authorizing such use of his bond. Late that evening, and only a few minutes before the time for closing the office, the plaintiff approached the defendant Cooper in front of the station, and there in the presence of others presented him this order signed by Rizer. The agent took the order, and, after taking a few steps toward the station, said to Jenkins: "I can't take this. That is not Rizer's signature." And when Jenkins insisted it was his signature and had been witnessed the agent then said: "I don't believe that is the witness' signature," and, "I won't ship on that." It is to be noted that neither Rizer nor the witness Brabham were present. When a paper is presented purporting to be the order of another for permission to ship on his credit, the duty is incumbent upon the person presenting such an order of proving its genuineness.

The defendant Cooper owed a duty to the Southern Railway, and that was to protect the interest of the Southern Railway. As he had such a duty, his act became, and his words are understood, under the law of qualified privilege, and therefore could not be the subject of suit, unless made in actual malice. What evidence is there of malice? A paper is presented to him asking for credit under the bond of another which it was his duty then and there to accept or decline.

It makes no difference that in his arriving at a conclusion he made a mistake. He and the railway company would only become liable in the event that his decision was the result of malice in fact, and here is an absolute failure of any evidence whatever to show such malice. On the contrary, it affirmatively appears that the Southern Railway Company and the plaintiff were on good terms, if a corporation can be said to be on good terms with a person. It had extended to him credit. He had no cause of complaint against it. No feeling existed between him and the representatives of the railway company. It was the duty of the agent of the company to be sure that an order demanding a valuable right was a genuine order, and, if he fell into error, as he did, neither he nor the railway company are responsible.

Suppose a man presents a check at a bank made payable to his order, and the teller refuses to cash it unless he has himself identified it. Will that make the teller and the bank responsible in a suit for damages? Suppose a man presents a note to a bank with an endorsement on it, and the cashier refuses to accept the indorsement, doubting the genuineness of the signature, does the cashier and the bank become liable in an action for damages for slander where such statement is made in the hearing of others who happen to be present on the theory that the refusal to accept it is in effect to charge him who presents it with the crime of forgery? Clearly not.

In the ordinary conduct of affairs he who presents the signature of another should be prepared, if called upon, to prove its genuineness, and he who is to pass upon the genuineness of the signature does not render himself liable in an action for damages for the exercise of his honest judgment, whether he be right or wrong. The presence of malice must be shown. When the agent in this case made the statements alleged, he but discharged a duty. Immediately thereafterwards the plaintiff applied to him the vilest of all epithets. The defendant Cooper turned and walked into his office, where the plaintiff followed him, again applying the same epithet, and yet within a few minutes after this great indignity had been placed upon the defendant he had shipped several of the cars of watermelons, and the next morning completed it by shipping the balance. Does this show malice? He did not even show the very reasonable and natural resentment that an ordinary man situated as he was, undergoing what he had, would have shown. Is this Court without authority to correct this clear oversight? Has it no power beyond the passing upon of the questions raised by the appeal?

I am not unaware that this Court has said in a number of cases that only questions raised by exceptions will be finally passed upon by this Court. Beasley v. Newell, 40 S.C. 16;18 S.E., 224. State v. Robinson, 40 S.C. 553;18 S.E., 891. Ramseur v. Moore, 43 S.C. 304; 21 S.E., 81. Aultmanv. Salinas, 44 S.C. 299; 22 S.E., 465. Southern Ry.Co. v. Howell, 89 S.C. 391; 71 S.E., 972, Ann. Cas., 1913A., 1070. Stewart v. W.U. Tel. Co., 93 S.C. 119; 76 S.E., 111. Watkins v. A.C.L. Ry. Co., 97 S.C. 148;81 S.E., 426; and Jefferson v. Southern Express Co., 103 S.C. 75;87 S.E., 209. I apprehend that the rule had its origin in the twofold purpose of giving notice to counsel of the questions to be raised and the purpose of protecting the Court for failure to pass upon a question not called to its attention.

But in this case the question raised is not a collateral one, nor is it one of subtlety; on the other hand, it is the very gist of the case, and its being considered on appeal ought not to be a surprise to counsel; and for the other purpose of the rule I am not seeking protection for failure to pass upon a question not called to my attention. On the other hand, I am seeking to decide the question, on the answer to which the substantial rights of the litigants rest, and I venture to think it was never the intent by those decisions to limit the power of this Court in the case of patent error disclosed by the entire record.

In Elliott v. Rhett, 5 Rich., 405; 57 Am. Dec., 750, Judge Wardlaw said the rule was for the attorneys and not for the Court, a direction on the method of presenting cases, rather than a limitation of the power of the Court itself. However this may be, there is no reason why the Court should abdicate its common-law right in a case where a plain mistake has been made, which error is not before it by way of exception, and, where on error found upon a ground duly presented to the Court which necessitates the remanding of the case for a new trial, to call to the attention of the trial Court the law that should govern in the retrial of the case. In the great case of Hadley et al. v. Baxendale et al., 9 Exch., 341; 23 Law J. Exch., 179, Alderson, B., said:

"We think that there ought to be a new trial in this case; but in so doing we deem it to be expedient and necessary to state explicitly the rule which the Judge at the next trial ought, in our opinion, to direct the jury to be governed by when they estimate the damages."

And I am of the opinion that this Court has authority, in a case where error is found upon exception taken which leads to a new trial, to call to the attention of the trial Judge errors found from which no exception was taken, with instruction to correct in the new trial. This is a practice that goes back far in the history of appellate Courts.