
    W. D. Jacobs, Respondent, v. Transcontinental & Western Air, Inc., a Corporation, and William Maxfield, Appellants.
    No. 40749.
    216 S. W. (2d) 523.
    Division One,
    December 13, 1948.
    Rehearing Denied, January 7, 1949.
    
      
      Harry L. West, Harold L. Warner, Jr., Garrett é Buark and Walter A.- Raymond for appellants.
    
      Harry C. Clark and Louis W. Iirings for respondent.
   [523]

DOUGLAS, P. J.

Plaintiff recovered judgment for $500 actual and $2,500 punitive damages in an action for libel. -Defendants appealed tq the Kansas.City Court of Appeals. That court affirmed the. judgment,, and transferred the case here because its decision conflicted with a ruling of the Springfield Court of Appeals. 205 S. W. (2d) 887.

We consider a ease transferred from a court of appeals the same as an original appeal. Art. V, Sec. 10, Constitution 1945. We find the judgment should be reversed for the reason the words complained of are not libelous. ..

- Plaintiff entered the employment of the defendant T. W. A. as a polisher of airplanes. He described his duties in this manner: “I took a cleaning compound [524] and polished the 'dust and dirt off of them so they shine, and I kept that up all day. ’ ’; .líe' was paid '40 cents an hour for a 48 hour week. Then he was promoted to be an airship ’s cleaner- at 42 cents an hour. He did. this work for almost a year until he ivas promoted to be-an apprentice mechanic at 44 cents an hour. As an apprentice mechanic he cleaned airplane parts that came off old airplanes. He would take the-parts to..the .steam, room where he would steam them. Then with a cleaning compound he would remove all the smudge so the parts could be repaired and used again. This work took hiiri all over the 'plant.. ' '

Plaintiff, while working as a cleaner, tried to join the Airline Mechanics Association, the union which’'represented most of the employees, but was refused admission by the association because he was not eligible. Those who worked as polishers, cleaners, and as less than Class “G” mechanics were not admitted to-membership' in the-association. After.the members of the association had received- a wage increase, the polishers and cleaners became dissatisfied. This group, including plaintiff, took steps to find--a-union -to- represent -them. Plaintiff and'others solicited memberships for a CIO union which was to be. chartered-at-defendant’s-plant.- They passed -out- membership applications and literature and solicited members: -On’August 19th, plaintiff joined the CIO Unión, and on-Augfist' 20th, he-whs discharged from his job. The-following day he received'his final'páy'check and a letter of dismissal officially terminating his services. The letter was signed by defendant Maxfield, a T. W.-A..official.' T " ■

Within two or three days after his discharge from T. W. A., plaintiff was employed at the Cudahy.packing-house in the cleaning department. .-He received 70^- an hour- which:'was -increased to. 75$, then to 78%‡.. He worked there until May, 1944, when-he qfiit. 7 Then he worked for the Kansas City Structural Steel -Company for ■ 86$ an- hour. From there he-went- to Work for the Coihmon'wealth, Aircraft Corporation, for 85^5 an hour. : -Then -he went -back to farming in Oklahoma. . "• ' - "

Copies of the letter of dismissal about which plaintiff complains were sent as interoffice correspondence to two employees'of T.’W. A., and á copy was-also sent to the' association: The letter ’was as fqilów’s:

“Interoffice Correspondence' .
■ ‘‘Transcontinental & Western Air;'Inc!
“To: Mr. W.- D. Jacobs-
Sent From: Kansas City
“C” Apprentice
“At: -Clock No. 312,-
Kansas City,
Date: August 21, 1941 ' '
“Your-File'No.: ■
Our File No:
“Subject:''Termination-of-Services
“It' has--been necessary to terminate--your services effective 4:00 P. M:, August 20, -1941:' ; ' ■ ■ ‘
‘ ‘ This action was taken after considering- and investigating reports of -Maintenance Department Supervisory- Personnel to the effect that you have, during your working hours, been neglecting your assigned duties and-causing a loss of efficiency-on the phrt of other employees by-unnecessary loitering in-the hallway and-in--the'hangar.
■ “"Wé regret that it has-been, necessary-to take this action but it is necessary that all T1-W-. A-..-employee's attend-to their- assigned duties in'-a-spirit of willingness and cooperation.:
“Before.receiving-your final pay éheclq it .will be.necessary to turn in all -T. W!«A. equipment in yo'ur possession and receive 'a Maintenance Department-Clearance Sheet from-Mr.-Putnam.-
-(-Signed) •,¥m..Maxfield
System Superintendent of-Maintenance.”
WM:W
cc-:--G. A. Putnam
-L- M. Reed-
i'A.M.A.”--'

• Plaintiff states- in his petition that the statements in the letter charging-him with neglecting his--duties, causing 'loss' -of -efficiency'by the other employees, ■ and failing to cooperate were false. He ■ asserts as his round for-recovery;; “That said [525]--words-in said letter were libelous and'in defamation • of - plaintiff's 'skill, capacity ¿nd fitness to perform and-.discharge his'dirties'as'-polisher and that said language directly tended to prejudice plaintiff in his trade, business and employment by imputing'to‘him a want of knowledge, skill, capacity and fitness >to' perform- and' discharge the-duties of his job and-were-Therefore actionable per - se-’’ Plaintiff' further alleges in his petition that-as'a-result of- the publication-Of-the letter plaintiff’s reputation-has been-injured and-prejudiced-in the pursuit of his tra-dé, business and employment and that he will be unable to secure gainful employment-as-a mechanic in-■ his-community: '

The-initial- question for -decision is whether the words of the letter are libelous .On their face so That 'the mere use' of the words without more is sufficient to-sustain--an-action for damages,' that is, whether the -wordstare- ácti-onable per se." I-f the words are no't actionable per se, defendants’; motions -for directed verdict should have been sustained because, plaintiff has pleaded-no 'extrinsic-facts’"in order to show a libelous meaning.of the words-used'so asdo-make -them actionable': The question whether the letter -was libelous was' not discussed by the Court,of Appeals.'but-has been preserved for appellate review:

Plaintiff bases his action npon injury to him in his -trade, business and employment caused by the libelous words. He does not charge that he was exposed “to public hatred, contempt .or ridiéule” or:-was deprived ‘ ‘ of the benefits of public confidence and social intercourse, ’ ’ the statutory definition of libel which is punishable as' an, offense. Sec. 4758, R. S. 1939, RSA.

False words tending to injure a person in his profession,"trade or employment are ordinarily actionable, and sustain- a recovery of money damages. We have expressed the rule in these words* -“The publication of false statements or language, whether'written or - oral, which directly tend to prejudice or injure -a person in his profession, trade, business, or employment, by imputing to him á want) of-knowledge, skill, capacity or fitness to preform or discharge the duties thereof, is actionable per se.” Heitzeberg v. Von Hoffmann Press, 340 Mo. 265, 100 S. W. (2d) 307, 309. In a much earlier case we pointed out that words to be actionable per se must-be such¿‘ if-true, as would disqualify a person or render him less fit properly to fulfill the duties incident to the special character he has assumed. Words to be actionable as -disparaging a person in his calling must touch him in his office, profession or trade. They must impeach either his skill or knowledge, or his official or professional conduct.., We said-that every false charge is not libelous but must come within the definition. Legg v. Dunleavy, 80 Mo. 558. It is stated in the Restatement of Torts § 573 that for defamation of a person in his trade the disparaging words to be actionable per se must affect the plaintiff iii some way which is peculiarly harmful to one engaged in his trade. - ‘Disparagement of a general character, equally discreditable to all .'persons, is not enough unless the particular quality disparaged is - of such. 'a' character that it is peculiarly valuable in the plaintiff !s business or profession.” \ , - - .

A writing claimed to be libelous must be interpreted), from fits four corners. Hylsky v. Globe Democrat, 348, Mo. 83, 152 S. W. (2d.) 119; Kleinschmidt v. Bell, 353 Mo. 516, 183 S. W. (2d) 87. It must be: given its ordinary meaning in the plain and popular sense.) .Words claimed to be libelous “will be construed fairly by their.natural import, according to the ideas they were calculated' and intended tc convey to those to whom they were addressed, and -pinned- down to some one commonly accepted meaning, one generally understodd. ” Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S. W. 1143.

Coming now to the facts .of this case, we, may first observe -that' this is a situation where plaintiff has not lost his position because of the libelous statements of some third person. He lost his position be-cause [526] his employer discharged him: for reasons of -its own:-. The-statement he claims was libelous accompanied his 'dismissaly-was not the. cause .of it. So we have for determination the question whether the statement will thereafter tend t'o injure plaintiff in- his-trade. - -

lix the letter-of-’dismissal defendants-did not impute to plaintiff a want'of knowledge, skill, capacity or'fitness to perform tbe duties of án airplane polisher or mechanic which-"he claims as his trade. The letter-'did not touclr on-plaintiff’s qualifications or ability to perform his'work.- I-n Tact it made no ref erence-:of any kind to the character or 'quality of the-work performed by him.- The charge was that plaintiff had been neglecting his duties-which-meant 'in this-case that he was ¡not devoting his full-time to--them.’ This does not disparage plaintiff’s- ability, and skill-to perform his work when he devoted his-time to'it, particularly since the-letter ’goes on to explain the very way life was neglecting his duties.’ - It-charges him with' loitering in the hallway and'in the hangar.' Taking.the whole Statement together^ as we must, thére is -nothing' defamatory in charging plaintiff with neglecting his duties because he -loitered unnecessarily in the hallway and' the-hangar, and by.doing so decreased the efficiency, of other employees. There is no imputation of disgrace arising from’ the word loiter. sit-is commonly understood-to mean to linger," to delay, to be slow moving.- -Then thb letter- goes’bn'to's'aythat'all T. W. A. employees should “attend to their’assigned'duties-in’a spirit of willingness.and cooperation:”. So'the charge may-be restated in- this way,that plaintiff did.hot cooperate-because-he- neglected his duties and interfered with other employees in performing theirs by loitering in the hallway and-in-the hangar.- <■ Certainly there is nothing, in this charge .that in any way imputes dishonesty, disloyalty; unreliability, or, unworthiness of trust to plaintiff. '--It in no -wise touches his character or his reputation.-dlt-im-pútes-no quality which impairs his performance of the duties of his trade. I-t imputes no incompetence or unfitness, .no .lack of: skill .or ability. . -It does -not prejudice him in his trade. It does: not touch his-skill or ability in his work either as an-airplane polisher-or mechanic.- It-imputes--no' quality or attribute of character, which would injure him in his- relations -with an employer. It,does mot defame.him...-. Therefore; -it is ndt libelous.'=

..Plaintiff relies, on-'the:■ decision! of Chambers v. National Battery Co., 34 F. Supp. 834. An opinion» by Judge Albert L. Reeves found that a charge of “indifference, lack of -cooperation,- carelessness, and-lack,’of. ability” was libel per se. However,■' that language differs from d-he' charge in-the-present ease--because it touches the plaintiff’s ability. = But. Judge Reeves also- held that á statement that plaintiff’ “wont play ball with me’-’- was■■ not harmful or prejudicial. We understand that-statement-to charge' the-plaintiff in that ease with refusing to- cooperate.

- A-clearance card furnished a¡'railroad employee on his discharge which stated: “Cause -of leaving service, unsatisfactory service; eon-' duct, good”--.was-hotMbeloiis- per se, Ill. Cent. R. Co. v. Ely, 83 Miss. 519. 35 So. 873.

The language complained of in this case is of common understanding. It is unambiguous. It is not capable of double meaning. Since it is not libelous the trial court should have directed a verdict for defendants. Under the circumstances the court was clearly authorized to find as a matter of law the letter was not libelous. The rule is well settled in this state where the meaning of the words claimed, to be libelous is unambiguous whether or not they will reasonably admit of. a libelous construction is in the first instance a question, of law for the court. Ukman v. Daily Record Co., 189 Mo. 378, 88 S. W. 60; Lee v. W. E. Fuetterer Battery & Supplies Co., 323 Mo, 1204, 23 S. W. (2d) 45; Patterson v. Evans, 254 Mo. 293, 162 S. W. 179; Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S. W. 1143; Cook v. Pulitzer Pub. Co., 241 Mo. 326, 145 S. W. 480. And it is the rule, generally that the court determines whether a communication is [527] capable of a defamatory meaning. Restatement, T,or.ts, § 614. .

There was a provision in the Constitution of 1875, Art. II, Sec. 14, and repeated in.Constitution 1945, Art. I, Sec. 8, which states that in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts. But this provision does not in any way affect the power of the court to decide as a matter of law that-the statement claimed to be libelous is not capable of a defamatory meaning. The constitutional provision stems from Fox’s Libel Act adopted by the English Parliament in 1792. The act was adopted to correct a practice which had grown up in England in the trial of, criminal libel prosecutions. Before the adoption of the act, it. had become the usual practice that the judge, not the jury, should find and adjudge that the matter complained of was a libel. The judge, would submit to the jury only the questions of proof of the publication, .proof, of the innuendoes, and proof of the other necessary averments But. this practice was stopped by Fox’s Act which required the whole case be left to the jury, just as any other criminal case. . Thereafter under the act the jury would find a general .verdict on.the whole case, not a special verdict on the question of publication and the truth of the innuendoes. See State v. Armstrong, 106 Mo. 395, 16 S. W. 604, and Oakes v. State, 98 Miss. 80, 54 So. 79, 33 LRA (NS) 207. But the act did not deprive a judge of the authority to direct the jury to acquit because the case had failed in- law. Capital and Counties Bank v. Henty, 7 Appeal Cases (1882) 1. c. 775.

■ ;The conclusion follows that the action of the trial court in submitting the case to the jury instead of directing a verdict for defendants, was erroneous. -The opinion of the Kansas City Court of Ap'peals affirming the judgment for plaintiffs should be quashed. ■ The judgment of the trial court in favor'of plaintiff should be reversed. It is so ordered.

The judgment is reversed.

All concur.  