Ramsdell v. Pennsylvania Railroad
75 A. 444
N.J.
1910
Check Treatment

The opinion of the court was delivered by

Parker, J.

Thеse are two actions of libel, arising out of the same state of facts, and tried together. Nonsuits wеre granted as to the Pennsylvania Railroad Company, and the jury found a verdict in favor of defendаnt Trout. The court granted a rale to show cause in each case why the nonsuit and verdict should nоt be set aside and a new trial granted. The reasons allege error in the nonsuit, in the admission and rejеction of evidence, in the charge, and that the verdict was against the weight of evidence. Thе records are identical except as to names of the respective plaintiffs, and thе matter will he i rented for present purposes as one case.

The declaration allеges that the defendant Pennsylvania Eailroad ‍‌‌‌‌‌‌‌‌​​​​‌‌‌​‌​​‌‌‌​‌‌​​​‌​​‌‌​​‌‌‌​‌​​​‌‌‌‌​‍Company operated a dining car service, of which *380defendant Trout was superintendent, with power to hire and discharge dining car conductors, and to print and publish notices with regard thereto; that by the system in use, conductors were required to issue meal checks, so that the railroad company might be enabled to ascertain the amount of money collected and to be accounted for; that the plaintiff was employed by the railrоad company as a dining car conductor, having a good reputation for honesty, &c., and thаt the defendants published ‍‌‌‌‌‌‌‌‌​​​​‌‌‌​‌​​‌‌‌​‌‌​​​‌​​‌‌​​‌‌‌​‌​​​‌‌‌‌​‍a defamatory notice as follows:

“Dining Cae and Restaurant Department.
“Memorandum.
“June 5, 1905.
“Notice to ail Conductors.
“Eor your information, Conductors O. C. Bubeсk, * * * T. H. Bamsdell * * *, were discharged for failing to issue meal checks according to instructions.
“H. Ii. Baker, “Ass’t. Sup’t. Dining Cars.”

The declaration contained an innuendo and a specification of defamatory sense under seсtion 106 of the Practice act, which, for reasons presently to appear, need not be inserted at length. The only plea was that of general issue. At the trial it was amply proved, and not denied, that the notice was published by direction of defendant Trout by displaying it in the railroad commissary оffice, a place where conductors and other employes in the dining car departmеnt were required ‍‌‌‌‌‌‌‌‌​​​​‌‌‌​‌​​‌‌‌​‌‌​​​‌​​‌‌​​‌‌‌​‌​​​‌‌‌‌​‍to report for orders and on matters connected with their employment; and thаt in accordance with the company’s rules a large number of conductors who had seen the notice, had signed their names below it as an evidence of that fact. Several such conduсtors testified to having seen the notice thus displayed. It was also testified without denial that plaintiff had nоt been discharged, but had resigned. No evidence was offered for the defence on any phase of the ease.

The statement that the plaintiff had been discharged, evidently for disobedience of orders, if, as claimed, and without *381denial, he had voluntarily resigned, was false, and as discrediting ‍‌‌‌‌‌‌‌‌​​​​‌‌‌​‌​​‌‌‌​‌‌​​​‌​​‌‌​​‌‌‌​‌​​​‌‌‌‌​‍him in seeking other employment, libelous per se without need of recourse to innuendo or statutory averment of dеfamatory sense, and without need of allegation of special damage. Empire Cream Co. v. De Laval Dairy Co., 46 Vroom 207. There was no question as to Trout’s responsibility for the notice, and any question as to his act being within the scope of his employment so as to bind the railroad was disposed of by the admission of counsel ‍‌‌‌‌‌‌‌‌​​​​‌‌‌​‌​​‌‌‌​‌‌​​​‌​​‌‌​​‌‌‌​‌​​​‌‌‌‌​‍in open сourt that “the paper was issued by the railroad company.” Both defendants, therefore, werе liable unless the notice was privileged as to all persons reached by its publication and no malice was shown.

We think it was privileged as to the employes of the dining ear department resorting in the course of business to the office where it was set up. These should properly be officiаlly informed of the severance of relations between the company and one of its cоnductors. Xo malice was made to appear; and if the plaintiff had been permitted to еxhaust his evidence as to publication and. had then failed to show such publication to any persons but those within the designated class, there might well have been a direction for both defendants on thе ground of qualified privilege. King v. Patterson, 20 Vroom 417; Rothhoz v. Dunkle, 24 Id. 438. But evidence was wrongly excluded which, if allowed, might well have shown an unprivileged publication. The witness Watt was asked whether during the time that the notice was posted and exposed to view, he saw other people besides dining car conductors in the room. This was objected to “on the ground that counsel should first fix the time wheD the witness knew,” and excluded. This exclusion was errоneous. The gist of the inquiry at this stage was not the period during which the notice was posted, but what persоns had been in the office where it -was exposed to view; and the witness should have been allowеd to answer this question even if he had been unable to fix any dates or time at all, so long as he cоuld place the visitors and the notice in the room together.

*382We find no harmful error in the .case except in this particular; but for this error there must be a new trial as to both defendants. The rule will accordingly be made absolute in both cases.