McIntyre v. Cudahy P. Co.

| Ala. | Jan 23, 1913

ANDERSON, J.

The complaint contained 9 counts, many of which were added by amendment. Counts 1, 3, 4, 5, 6, 7, and 8 set up either the publication of the receipt in connection with Avords spoken as constituting a libel, or charge slander in the speaking of words in connection with the receipt. The written matter is not libelous per se, as the paper contains the most complete and innocent language. The language spoken, even though slanderous, does not import the essential of libel into said receipt, as the said language is not a charge as to the meaning of the receipt, but is independent language'in connection with the said receipt.

It is well settled in this jurisdiction, as well as others, that a corporation cannot commit slander, and can only become liable for the utterances of' its agents by expressly authorizing the slanderous utterance, or by approving or ratifying the said utterance. In the case of Singer Mfg. Co. v. Taylor, 150 Ala. 574" court="Ala." date_filed="1907-03-02" href="https://app.midpage.ai/document/singer-manufacturing-co-v-taylor-7362693?utm_source=webapp" opinion_id="7362693">150 Ala. 574, 43 South. 210, 9 L. R. A. (N. S.) 929, 124 Am. St. Rep. 90, this court, speaking through Tyson, C. J., said: .“By reason of the fact that the offense of slander is the voluntary and tortious act of the speaker, and is more likely to be the expression of momentary passion or excitement of the agent, it is, we think, rightly held that the utterance of slanderous words must be ascribed, ‘to the personal malice of the agent, rather than to an act performed in the course of his employment and in the aid or the interest of his employer, and exonorating the company unless it authorized or approved or ratified the act of the agent in- uttering the particular slander.’ — 10 Cyc. 1221. Mr. Odgers, in his work on Libel and Slander, states the doctrine in this language: ‘A corporation will not, it is submitted, be liable for any slander uttered by an officer, even though he be acting honestly for the benefit of the company, and within the scope of his duties, unless it be proved that the corporation expressly ordered and directed that officer to say those very words; for a slander is the voluntary and tortious act of the speaker.’ ” The trial court did not err in sustaining the demurrers to these counts.

It is well settled that, when the matter published is not liberous per se, the publication must result in special damage to the party complaining. The receipt in question not being libelous per se, therefore, when the plaintiff relies upon an innuendo, he’ must show special damages, and the failure to do so goes to his right of action and can be reached by a demurrer to the complaint, and which is a different proposition from the holding that nonrecoverable damages must be stricken and not questioned by demurrer to the complaint, if it claims recoverable damages. — Tenn. Co. v. Kelly, 163 Ala. 348" court="Ala." date_filed="1909-11-18" href="https://app.midpage.ai/document/tennessee-coal-iron--ry-co-v-kelly-7364545?utm_source=webapp" opinion_id="7364545">163 Ala. 348, 50 South. 1008; Labor Review Publishing Co., v. Galliher, 153 Ala. 364" court="Ala." date_filed="1907-12-19" href="https://app.midpage.ai/document/labor-review-publishing-co-v-galliher-7363135?utm_source=webapp" opinion_id="7363135">153 Ala. 364, 45 South. 188, 15 Ann. Cas. 674; Gaither v. Advertiser, 102 Ala. 458" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/gaither-v-advertiser-co-6515608?utm_source=webapp" opinion_id="6515608">102 Ala. 458, 14 South. 788. Count 2 does not show that plaintiff sustained any special damage and, as the publication was not libelous per se, the demurrer thereto was properly sustained.

The ninth count does set up special damages, but the facts set up as the innuendo do not render the publication of the receipt libelous. It is true, the complaint charges that the defendant falsely and maliciously “published in said writing that said goods had been received by this plaintiff for said partnership by virtue of said employment and had fraudulently converted same to his own use or to the use of another.” It must be noted that this is no charge as to the meaning of the receipt in connection with the facts, but is an averment of the contents of the receipt, and which is not borne out by the receipt, which is set out in bmc verba. It further avers that the words and figures, “O. K. Me.,” which appear together in the receipt, were intended by defendant to mean that the goods and chattels set out in said writing had been received, as aforesaid, by this plaintiff. Now the preceding averment does not charge the meaning of the receipt, or that the plaintiff fraudulently converted the goods, bnt merely charges that the receipt charges this fact, and a fraudulent conversion of the goods cannot be read in the alleged meaning of the publication by a mere reference to the precedingaverment, as the preceding averment only incorrectly avers the contents of the receipt, and not the meaning of same. The trial court did not err in sustaining the demurrer to this count.

The Judgment of the city court is affirmed.

Affirmed.

Dowdell, C. J., and Mayfield and Sayre, JJ., concur.