26 Haw. 196 | Haw. | 1921
OPINION OF THE COURT BY
This case comes before tbis court on an interlocutory bill of exceptions. To tbe plaintiff’s amended bill of complaint tbe defendant demurred upon tbe grounds
“Schofield Barracks, H. T., Nov. 15, 1920. “Mr. O. C. Craves, Supt,
American Railway Express Co.,
Honolulu, H. T.
“Hear Sir:
“The following is in accordance with your request of Friday last that I put in writing the complaint I made to you of Mr. George Rice,” (meaning this plaintiff) “Station Agent at Castner, in regard to his abuse of the Star-Bulletin delivery boys: . '
“This complaint, as you will know, Avas made to you instead of the Oahu Railway & Land Company because the papers” (meaning thereby the copies of said newspaper published and circulated by the defendant as afore*200 said) ■ “are delivered by the American Railway Express Company, and any dealings with the Agent” (meaning thereby this plaintiff, as agent for said Oahn Railway & Land Company) “at that point are more or less dealings with the Agent” (meaning thereby this plaintiff as agent, for the specific purposes aforesaid, of the American Railway Express Company) “of the American Railway Express Company than of the Oahn Railway & Land Company.
“One day recently, in the presence of several witnesses, whose names are Robert Sutton, Carl Oleclma, Arthur Alana, and one other whose name can he furnished, Mr. Rice” (meaning this plaintiff) “struck William Harkins full in the face because he happened to cross in the path of Mr. Rice” (again meaning this plaintiff).
“Friday, November the 12th, William Harkins came to the depot in the performance of his duties” (meaning thereby the performance of the said Harkins’ duties in connection with receiving and delivering copies of defendant’s said newspaper, as delivery hoy as aforesaid) “and upon his arrival there saw that a keg of R. R. spikes had been overturned. Having nothing else then to do he set about to pick them up. Mr. Rice” (meaning the plaintiff) “came out of the station, saw him picking up the spikes, accused him of upsetting the spikes and was about to strike him when the lad protested his innocence. Mr. Rice” (meaning this plaintiff) “then called him a God damned liar and cursed him, using names not fit to he used in the presence of a youngster of his age, much less to him.
“William Harkins is the nine-year-old son of Chaplain Harkins of the 3rd Engineers, and is. one of the best known, best liked and best behaved youngsters in Scho-field Barracks. Most of the officers and their families know this boy and will vouch for him, including, I believe, General Kuhn. And if this boy’s parents kneAv the abuse their son was subject to while at the R. R. depot they would never allow him in that vicinity again. I have promised the boy that I would take steps to have Mr. Rice” (meaning this plaintiff) “restrained from further*201 abuse if be would not tell bis parents, for tbe present at least.
“On another day recently, Mr. Rice” (meaning tbis plaintiff) “struck Carl Oleckna full in the stomach because tbe boy got in bis way while pulling bis paper bag from under tbe freight depot, where they were accidentally thrown by tbe baggage man. I arrived immediately afterwards and each boy there” (meaning thereby each of tbe said delivery boys, hereinabove mentioned, who were then and there present in connection with their said duties) “testified to what this boy told me, which is as I have given it to you here.
“Nearly every boy” (meaning thereby nearly every one of said delivery boys) “that has business that brings him to the station at Castner can testify to abuse that he at some time or other has been subject to by Mr. Rice” (meaning this plaintiff). “These boys can be met there at or about four o’clock of any week day, and questioned by any one who wishes to test the veracity of this report.
“It is very difficult as it is to secure delivery boys, and actions of this kind on the part of Mr. Rice” (meaning this plaintiff) “certainly will not help to remedy the situation. I am sure that Major Lannemiller, Captain Kin-nard, Chaplain Harkins, or others, whose sons are now carrying routes for the Star-Bulletin, will not allow their sons in that vicinity if they learn what has already happened to other boys.
“Trusting that some steps will be-taken to restrain Mr. Rice” (meaning this plaintiff) “from further abusing any delivery boys, and thanking you in advance for any attention you give this matter, I am,
“Very truly yours,-
(Signed) “F. J. DeGlercq,
“Schofield Representative, “Star-Bulletin.”
that said C. 0. Graves did duly, on the 16th day of November, 1920, receive said letter through the mails and did read the same as it was intended by said agent of defendant that he should; that the defendant further on the 15th day of November, 1920; acting by and through
To the decision and order sustaining the demurrer the plaintiff excepted and was allowed his interlocutory bill of exceptions which is now before this court.
If the circuit judge was right in either of his conclusions the exception will have to be overruled since special damages are not alleged. One of plaintiff’s contentions is that the letter in question is libelous per so as having a tendency to injure him in his employment. Defendant admits that a libel which has a tendency to injure one in his office, profession, calling or trade is libelous per se, but argues that the letter in question has no such tendency. The letter complained of contains direct and unmistakable language which shows that its intent and purpose was to attack the conduct of Mr. Eice in his employment. “I put in writing the complaint I made to you of Mr. George Eice, station agent at Castner, in regard to his abuse o’f the Star-Bulletin delivery boys. This complaint * * * was made to you ⅞ * * because the papers are delivered by the American Eailway Express Company, and any dealings Avith the agent at that point are more or less dealings with the agent of the American Eailway Express Company than of the Oahu Eailway & Land Company.” This is a direct statement of the pur-' pose of malting the complaint—that is, as Mr. Eice Avas acting as the agent of the American Eailway Express Company in receiving the papers, it Avas proper that any complaint made of him in his capacity as agent should be made to that company. The letter also very carefully shoAvs that the boys who are alleged to have been abused by Mr. Eice were at the depot in the performance of their duties as carriers of the paper and the complaint alleges that as agent it was the duty of the plaintiff not to interfere with or abuse said delivery boys but to assist in
In Wilson v. Cotterman, 65 Md. 190, 3 Átl. 890, it is said that the actionable character of the language must be tested by the question whether it imputes to the plaintiff the want of any qualification such as- a clerk ought to have, or any misconduct which would make him unfit to discharge faithfully and correctly the duties of clerk. In Darling v. Clement, 69 Vt. 292, where the plaintiff kept a school for boys, the court held it libelous per se to accuse him of sucking a rum bottle and failing to prevent the hoys stealing apples. The court said the natural and reasonable tendency of the words was to injure plaintiff in his trade and business. In Williams v. Davenport, 42 Minn. 393, 44 N. W. 311, 18 Am. St. Rep. 519, the alleged libel' referred to “the ungentlemanly and discourteous conduct” of a member of a theatrical party. The complaint alleged that the words were used concerning plaintiff in his professional character and that courtesy and gentlemanly conduct are especially necessary to the pursuit of his calling. The complaint was held to be good and the publication libelous in fact. In Hrdlicka v. Warner, 175 N. W. (Minn.) 299, the plaintiff was a rural mail carrier and the defendant wrote a letter to the Post-office Department complaining that plaintiff threatened boys of draft age that if they joined the nonpartisan league they would be sent to France. The court said: “The court charged the jury that the letter was libelous
Tested by the principles announced in these decisions we think it must be held that the letter in question is libelous per se. A station agent who abuses almost every boy “that has business that brings him to the station” is certainly unfit to perform the duties of his employment. Naturally the railroad officials would not Avant such an agent. They employ station agents to wait upon and assist those who call at the station on business and not to assault or otherwise abuse them. The charges contained in the letter are sufficient if true to show unfitness to perform the duties which plaintiff is employed to perform and therefore have a tendency to prejudice him in his employment.
The conclusion above reached renders it unnecessary for us to consider the argument that the letter is libelous per se as imputing to plaintiff the commission of a crime involving moral turpitude and also that it is libelous per se as holding him up to scorn and ridicule and to feelings of contempt and execration.
We have only to consider now whether the libel is
We conclude that the circuit judge erred in both of
The exception therefore is sustained.