242 F. 794 | 6th Cir. | 1917
Action of libel by defendant in error against the 35 plaintiffs in error and Slagle, who was subsequently dismissed from the case, resulted in a verdict and judgment thereon for $3,400.
The. parties were all members of the Erwin, Tenn., local of the Brotherhood of Locomotive Firemen and Enginemen and were employed as firemen on the Carolina, Clinchfield & Ohio Railway, which had its operating headquarters there. By custom-, the preferred runs and promotion to eneinemen were confined to white men, and, subject to-examination, were given on the basis of seniority. Cousifis was senior to 32 of the 36 defendants. As only white men were admitted to the brotherhood, applicants for membership were required to answer the question of race. Cousins had stated that he was a white man. After an investigation of rumors that-he was a mulatto, he was expelled from the local on the charge of having falsely answered questions. Thereupon the following letter, which constituted the alleged libel, was written and sent on behalf and at the request of all of the defendants to the master mechanic of the railway:
Brotherhood of Locomotive Mremen and Enginemen,
Clinchfield Lodge No. 763.
December 30, 1913.
Mr. H. F. Staley, M. M., Erwin, Tenn. — Dear Sir: Some time ago evidence c.ame into our possession of Isaac Cousins not being full-blooded white, and by a unanimous vote of the members of the B. of L. E. & E. he, Isaac Cousins, was expelled from the Brotherhood on account of falsely answering questions. By request of the Brotherhood I, as chairman, ask that the run he holds be vacated on rthe grounds that he is a nonpromotable man. If you desire any further evidence of the above being one-quarter negro, please notify us at once, and we will furnish you with same.
Yours respectfully, W. L. Spratt, Chairman.
. This letter resulted in Cousins’ loss of the preferred run and his transfer to a nonpreferred run.
In the caption of the declaration Cousins was alleged to be a citizen of North Carolina and the defendants citizens of Tennessee. The declaration was in three counts: The first, which the jury was in substance instructed to disregard, was based upon the theory that the letter charged a crime in plaintiff’s having married and lived with a white woman in Tennessee, contrary to the. Tennessee statute. The third count was based upon the theory of malicious interference with plaintiff’s contract of employment. The second, upon which the trial clearly appears to have proceeded, alleged the libel in general terms, and also specified the loss of the preferred run as special damages. We proceed to a consideration of the alleged, errors.
4. The evidence, while conflicting, so abundantly justified the submission of the issues made in this count to the jury, that it is unnecessary to review it here.
9. We are unable to understand the persistence of counsel in assigning as error the refusal of the court to give an alleged requested instruction, despite the statement of the trial judge, in his memorandum opinion on the motion for a new trial, that no such instruction was requested at the conclusion of the charge. The record fails to disclose such a request at any time.
Judgment affirmed..