Adams v. Cameron

Action for libel. It is alleged, in plaintiff’s complaint, that, from August, 1891, to September, 1895, plaintiff was employed as brakeman in the service of the Southern Pacific Company and from September, 1895, to December 31, 1910, he was in its service as conductor upon the trains of said railroad company which, among other places, were, in 1910, being regularly operated between South Vallejo and Suisun; that, on December 31, 1910, plaintiff was in said service as train conductor between said last named points and was receiving as compensation the sum of $184.50 per month; that, on December 1, 1910, defendant wrote, signed, and published and caused to be delivered to and read by Charles S. Fee, then the general passenger agent of said railroad company, a letter containing false and defamatory matter concerning plaintiff as follows, to wit:

“Los Banos, Cal., December 1, 1910.

“Mr. Charles S. Fee, San Francisco. Dear Sir: Sunday afternoon on train from Napa Junction to Suisun a passenger was spoken to in very rough language by Conductor Adams, simply because he had by mistake gotten on that train, expecting to go to Santa Rosa. The passenger was a well dressed sober man, evidently a foreigner. A moment later in reply to another passenger’s speaking about the heat of the car Mr. Adams used loud and very vulgar language in referring to the trainmen’s reasons for having it hot. I observed that the reasons for Mr. Adam’s language in both instances was that he seemed to be much under the influence of liquor. On two former occasions within the past six months I have noticed similar exhibitions of coarse and disagreeable deportment on the part of Mr. Adams and each time that he is under the influence of liquor. On other occasions I have had reason to think Mr. Adams a very decent, kindly man, and I would therefore be very sorry to have him hardly dealt with for the faults mentioned, but think that a caution against drink during hours of duty at least would be

of value to him, as well as to your road and the public. You may show this to him if you wish to do so.

“Very Respectfully,

“W. H. Cameron,

“Napa, Cal.”

That said letter, after the delivery thereof to said Fee, was by him exhibited to sundry persons then employed by said railroad company and thereafter, on December 31, 1910, “this plaintiff by reason of the false and defamatory matters set forth in said letter, was discharged from the employ of said railroad company on the ground that he was guilty of conduct unbecoming a conductor, whereby the plaintiff has lost at all times since December 31, 1910, the said sum of one hundred and eighty-four and 50/100 dollars per month, which otherwise would have accrued to him, and the plaintiff will continue to lose said sum each month because of said discharge ; that plaintiff has no trade or occupation other than that of a railroad brakeman and conductor, and that by reason of his said discharge ... it will be impossible for this plaintiff to secure re-employment with said railroad company or employment with any other railroad company in this state”; that the railroad companies which operate in this state maintain a system of exchange references by which each company is notified of the causes for the discharge of an employee of hny other railroad company and that when a conductor has been discharged because of conduct unbecoming a conductor no other railroad company will employ such discharged person in any capacity; that plaintiff is 47 years of age and that “a rule, custom and practice prevails among railroad companies operating in the state of California, and by which they are controlled and guided in the employment of servants, not to employ any person either as brakeman or conductor who has passed the age Of forty-five years; and that by reason of the premises and the said acts and words of the defendant, this plaintiff has been permanently deprived of the income' and earnings which would otherwise accrue to him from his employment as a railroad conductor in said state of California, to plaintiff’s damage in the sum of $15,000.00”; plaintiff also alleges “that in addition to the special injury and damage . . . plaintiff has been injured and damaged in his good name, reputation and feelings, by the said acts

Defendant almits the publication of said letter but denies that it contained false or defamatory matter concerning plaintiff; admits that the conductor alluded to in said letter was the plaintiff but denies that the matters therein stated “were or are false or untrue” or that at the time defendant wrote said letter he knew that said matters were false or untrue; defendant also denies separately the averments of the complaint relating to plaintiff’s alleged service in said railroad company, the facts alleged as to his discharge and its present and future effect upon his earning capacity, the alleged system of the exchanging of references and of the alleged rule of refusal of railroad companies to employ discharged employees of other roads or because of having reached the age of 45 years or any other age and denies that plaintiff has been permanently or otherwise injured or deprived of employment by reason of his said alleged discharge. Further answering, defendant avers that “all the matters and things concerning the plaintiff herein, contained in” said letter “were and are true.” Further answering, defendant alleges that “he, as a party interested, wrote to said Charles S. Fee as the general passenger agent of said Southern Pacific Company, a party also interested, advising him of the uncivil and discourteous conduct of Conducter Adams, ... on the afternoon of the twenty-seventh day of November, 1910”; that defendant, when he wrote said letter, “had reason to believe, and actually did believe, that said plaintiff, as the conductor on said train on said twenty-seventh day of November, 1910,” did use the language and do the acts set forth in said letter and was under the influence of liquor as therein stated and that defendant wrote said letter in good faith ‘ ‘ and in the honest belief that each and every statement contained in said letter was true”; that said railroad company at the times mentioned had a notice posted in the cars of said train requesting that any uncivil or discourteous treatment suffered by any patron of said company, by reason of any acts or conduct of its servants, be reported to said company, and that defendant wrote said letter in obedience to said request and in the honest belief that all he wrote was true and without any malice or ill-will toward plaintiff.

The jury returned a verdict for plaintiff in the sum of five thousand dollars, and answered the interrogatories as follows: 1. “Yes.” 2. “No.” Defendant appeals from the judgment on the verdict and from the order denying his motion for a new trial.

Plaintiff testified to his service with the Southern Pacific Company as alleged in the complaint and that he was dismissed from the company’s service, December 31, 1910, and was receiving as wages at that time $184.50 per month; that he was, at the time of the trial (November 14, 1912), and had been, since September 16, 1912, employed by the state on the belt railroad and was receiving one hundred dollars per month for his services. He testified that, returning, on December 31, 1910, to South Vallejo, on his regular run, he was told to report to Mr. Ketcham, assistant superintendent of the western division at Oakland Pier; he complied and went to see Mr. Ketcham, January 3, 1911. “I says, ‘What is the trouble?’ ‘Well,’ he says, ‘we have decided to dispense with your services.’ I says, ‘What for?’ ‘Well,’ he says, ‘you have been accused of using profane language, treating a well-dressed foreigner as a culprit and being in a drunken condition on the train. ’ I told him the report was false and I was not in the habit of using profane language under any circumstances and I was not a drinking man, very seldom took a drink unless I figured it was for medical purposes; and as far as treating a well-dressed foreigner or anybody else as a culprit was foreign to my nature at all stages of the game. ‘Well,’ he says; ‘that is my decision—Mr. Whitney’s orders. ’ Mr. Whitney is the superintendent of the western division of the Southern Pacific Company.” He was asked to give his reply when told in substance the charges against him. Defendant objected as immaterial, irrelavant, and incompetent. The court overruled the objection and

In his cross-examination his explanatory letter to Campbell was introduced by defendant in which he admitted having taken a drink of whiskey and glycerine at his home on the morning of November 27, 1910, and in his further examination explained that he had a bad cold and had been advised by his physician to use this «mixture and he admitted having taken another drink at his home at about 11 o’clock, which was two or three hours before the occurrence on the train referred to in the Cameron letter. He testified that nothing was said to Mm by the officials of the Southern Pacific Company about his having been under the influence.of liquor on other occasions than the twenty-seventh day of November and that he knew of no other charge made by the company.

Witness H. M. Philbrick testified that he was a railroad conductor and working for the Southern Pacific and was

The foregoing presents substantially the evidence in chief introduced by plaintiff.

1. At its conclusion, defendant moved for a nonsuit “based upon the ground that there was no proof as to the falsity of the charges, or any of them contained in alleged libelous letter.” There was at that stage of the trial no very direct proof given although evidence of the fact was admitted in rebuttal. The plaintiff, however, in his examination, did state that the charges in the Cameron letter were untrue: Defendant’s contention is that in an action for libel the falsity of the publication must appear either by presumption or proof; citing Cranfill v. Hayden, 97 Tex. 544 , [ 80 S. W. 609 ] : that there are no presumptions in this state other than those expressly declared by law; citing Davis v. Hearst, 160 Cal. 143 , [ 116 Pac. 530 ] : that there is no statute declaring that falsity is presumed where a charge made “has a tendency to injure one in his occupation.” Hence the claim that it was error to deny the motion.

“Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ. Code, sec. 45.) It seems clear to us that the charges made by defendant were libelous per se and were actionable, and we think it a well-established rule that in such case the burden was put upon defendant to prove the truth of the charges and no burden rested upon plaintiff to prove their falsity. The supreme court said, in Dixon v. Allen, 69 Cal.

2. Error is claimed in overruling the objection to plaintiff’s stating what he said to Keteham when he reported to him as directed. He stated in substance the conversation before any objection was made. Besides, in giving the conversation in greater detail, during which he explained how and why he came to take a drink of whiskey and glycerine and made what defense he could, he was but seeking to justify himself and effect reinstatement. The objection urged is that it was self-serving and tended “to prejudice the officials of the railroad company in the eyes of the jury. ’ ’ It seems to us that this testimony bore upon the question of plaintiff’s discharge and its connection with the charges made by Cameron.

3. With more seriousness, defendant urges error in allowing plaintiff to show what he did to obtain employment from other railroad companies. It is true, as claimed by defendant, “that one who utters a slander is not responsible, either as on a distinct cause of action, or by way of aggravation of damages of the original slander, for its voluntary and un

4. In this same connection, error is urged in permitting evidence of custom among railroads as to employment. The objection lies to the evidence of custom in the employment of persons of certain ages and the non-employment or refusal to employ persons dismissed for cause. The rule for estimating the damages in this case is found in section 3333 of the Civil Code, for there was no charge of fraud or malice or claim for vindictive or exemplary damages. The code rule is thus stated: “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. ’ ’

Defendant puts his point interrogatively as follows: ‘1 How can the fact, if it be a fact, that the railroad companies in this state have established a rule not to employ any one over the age of 45 years, or how can the fact, if it be a fact, that the railroad companies in this state refused to employ plaintiff because of his wrongful discharge by the Southern Pacific Company, be said to be the proximate cause of the alleged

As already suggested, it was plaintiff’s light to show that he could not get employment by another railroad company to avoid a possible presumption that, so far as his occupation concerned him, he had suffered no damages. We cannot see that he was precluded from showing that he was prevented from obtaining work by the act of defendant which caused his discharge, any more than he would have been precluded from showing some physical disability caused by defendant’s act. We have examined the cases cited by plaintiff and while we do not doubt the soundness of the principle on which they rest, the facts there shown presented circumstances clearly too remote, speculative, and contingent to admit of their constituting a proximate cause of the damages claimed. No claim is here made of the injury resulting from the wrongful act of third parties—the companies refusing to employ plaintiff. As for defendant not knowing the rules or customs referred to, the section of the code expressly provides that the damages “is the amount which will compensate for all the detriment proximately caused thereby (the injury), whether it could have been anticipated or not.” The complaint was not framed on the theory of defendant’s responsibility for a breach of these rules of railroad companies, but because of the libel he was discharged and because the grounds of his discharge shut him off from obtaining em

5. Error is claimed because plaintiff was permitted in rebuttal to give in evidence the opinions of witnesses that they had never seen plaintiff under the influence of liquor or witnessed any coarse or disagreeable deportment on his part. At least two of these witnesses were on the train at the time of the alleged misconduct and one of them in the smoking car where it occurred. Both of these witnesses talked with plaintiff and discovered no evidence of his being under the influence of liquor. The one who was in the smoking car testified to facts directly contradictory of the charges made by defendant. The station agent at South Vallejo testified to his close personal contact with plaintiff on the day mentioned by defendant and saw him when he went on duty and particularly when he made his reports. His testimony was that he discovered no indication of plaintiff’s having used liquor on that day. These witnesses clearly were competent and their testimony was relevant. Plaintiff himself testified that the charges were untrue. Several witnesses who were frequent patrons of the road, some of them daily passengers on commutation tickets, were permitted to testify to plaintiff’s sobriety and general courteous treatment of passengers for the six months prior to November 27, 1910. Plaintiff contends that the evidence was admissible to controvert the charge made by defendant that he had observed ‘1 on two former occasions within the past six months” plaintiff’s coarse and disagreeable deportment and his being then under the influence of liquor. These witnesses were examined as to what they observed during this period. Their opinion was not sought but what they actually saw in frequent meetings of plaintiff when on duty. They were not called as character or opinion witnesses. Defendant’s charge was indefinite as to the day he observed plaintiff’s conduct. The evidence may not have been very persuasive but it furnished the only available means open to plaintiff to meet the charge.

6. Error is assigned because the court refused to rule that the Cameron letter was a privileged communication. It appeared that notice was posted in the cars inviting passengers

Doubtless, where the undisputed facts establish the privileged character of the alleged libelous publication, it then becomes a question of law. But where the facts are disputed or the question of privilege is one of mixed fact and law, the question is for the jury. (Carpenter v. Ashley, 148 Cal. 422 , 423, [7 Ann. Cas. 601, 83 Pac. 444 ]; Townshend on Libel, 3d ed., p. 332.) Besides, one cannot escape responsibility for a falsehood under the claim of privilege. (Dauphiny v. Buhne, 153 Cal. 757 , [ 126 Am. St. Rep. 136 , 96 Pac. 880 ] ; Jarman v. Rea, 137 Cal. 339 , [ 70 Pac. 216 ]; Tanner v. Embree, 9 Cal. App. 481 , [ 99 Pac. 547 ].)

Defendant asked an instruction that the letter in question was a privileged publication. The court refused but instructed the jury quite fully and correctly, we think, as to what constituted a privileged publication and under what circumstances the law will pronounce a communication privileged. " The question was for the jury to determine under the facts and law as explained by the court.

7. Defendant’s requested instructions marked A, B, C, D, and E were given, as modified by the court, numbered respectively 5, 6, 11, 12, and 13. It is stated in defendant’s brief that the modification “consisted in injecting into each a qualification to the effect that before libelous matter can be privileged it must appear that it was and is substantially true. ’ ’ Instruction numbered 5 will sufficiently show whether there is merit in defendant’s point. It is as follows:

“Section 47 of the Civil Code, relating to privileged communications, declares that ‘A privileged publication is one made—Subd. 3. In a communication, without malice, to a person interested therein, by one who is also interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive of the communication innocent, or who is requested by the person interested to give the information. ’ I therefore instruct you that if you find from the evidence in this case that the alleged publication was substantially true and was made by the defendant upon a matter in which he was interested to a person who was, or persons who were, also interested therein, or who being interested therein requested him to

give such information, and that said communication was made by defendant in good faith, without malice and in the honest belief that the statements therein contained were true, then I instruct you that your verdict must be for the defendant. ’ ’

Defendant stated in his letter facts of his personal observation and knowledge. He justified by alleging that they were true. The instruction placed the issue of the truth or falsity of the publication before the jury with the direction that if the publication was found to have been substantially true and was made without malice and in the honest belief that it was true, their verdict should be for defendant. We think this is a correct statement of the law. A person may not willfully utter a libelous publication falsely assailing the character of another and shield himself under the claim of privilege. The instruction as .offered omitted all question of the truth or falsity of the publication. As was said by the trial court in his charge to the jury, in a recent somewhat celebrated libel case: “The whole law concerning libel is woven around the question of whether the charge made is true or not.” It may not be overlooked that at defendant’s request the question of malice and honest belief in the truth of his publication was answered against him. But if the publication was false we cannot see that honest belief in its truth or malice in its utterance should shield defendant.

8. Finally, the sufficiency of the evidence to support the verdict is challenged. It is contended that the only ground upon which the verdict can be sustained is that the jury were influenced by prejudice and passion. Among the implied findings which it is claimed were necessary to the verdict and were unsupported some will be noticed. It is said that the jury must have found that plaintiff was discharged by reason of the letter written by defendant. We cannot give space to a recital of all the facts supporting such finding. Whitney, it is true, testified that he discharged him and that the letter had nothing to do with it for he did not know of its existence when the order was made. There is abundant evidence tending to show that the charge made by defendant was the matter under investigation and that no other report or charge was called to plaintiff’s attention or appeared to be under investigation. When plaintiff reported to Ketcham, assistant superintendent, on January 3, 1911, as he.was told

It is urged that Ketcham and Whitney both told him, as plaintiff admitted, that he was “accused of using profane language, treating a well-dressed foreigner as a culprit, and being in a drunken condition on the train” and that Whitney told him, “You are discharged on account of that report.” It is urged that the phraseology here used shows that his discharge was not on account of defendant’s letter. The evidence was that no report or charge other than the Cameron letter was under investigation. The evidence, we think, was sufficient to justify the jury in finding that defendant’s let

No inference can reasonably be drawn from the amount of damages awarded by the jury that the verdict was inspired by prejudice and passion. The loss of wages alone would amount to nearly the sum awarded. But his loss of earnings was not the only element of damages recoverable. He was entitled to recover for injury to feelings and reputation as well as to the loss of business. (Sweet v. Post Pub. Co., 215 Mass. 450 , [Ann. Cas. 1914D, 533, 47 L. R. A. (N. S.) 240 , 102 N. E. 660 ].)

The judgment and order are affirmed.

Burnett, J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 10, 1910, and the following opinion then rendered thereon:

The application for a hearing in this court after decision by the district court of appeal of the third district is denied. We deem it proper to say in denying the application that we do not approve what is said in the opinion of the district court of appeal with reference to the action of the trial court in modifying certain requested instructions relative to privileged communications, said court having modified same by “injecting into each a qualification to the effect that before libelous matter can be privileged it must appear that it was and is substantially true.” We are satisfied, however, that the error of the trial court in this regard must be held to be immaterial, in view of the express finding by the jury that in the writing and publication of the letter the defendant was actuated by actual malice toward plaintiff (see Civ. Code, sec. 47, subd. 3), which finding we deem sufficiently sustained by evidence.

Shaw, J., Sloss, J., Lawlor, J., and Melvin, J., concurred.