MIMS v. METROPOLITAN LIFE INS. CO., 200 F.2d 800

STRUM, Circuit Judge. This is an action for libel brought by appellant against appellee, a corporation. The trial court entered

summary judgment for defendant below on the ground, amongst others, that there was no publication of the alleged libel, from which judgment plaintiff appeals. After about 32 years in the employ of defendant company as a branch manager and in other capacities, plaintiff was discharged. He suspected that the reason for this discharge was his refusal to contribute $1.00 to the campaign fund of Senator Taft of Ohio, as suggested in a chain letter sent by defendant’s supervisor of agencies in New York to a group of local agency managers, one of -whom in turn forwarded a copy to plaintiff.

In February, 1950, plaintiff replied to the agent from whom he received the copy that he was not in sympathy wiLh Senator Taft’s policies, and declined to contribute. When plaintiff’s services were discontinued early in 1951, he wrote to his friend Senator Sparkman of Alabama, asking the latter to investigate the cause thereof.

Pursuant to this request, and with plaintiff’s knowledge and approval, Senator Spark-man directed a letter of inquiry to the defendant’s president in New York, summarizing Senator Sparkman’s understanding of the situation, and concluding: “I shall appreciate your attention to this matter and your giving me such information as you may care to give.” Defendant’s president replied at length by letter, denying that plaintiff’s discharge was in any way due to his refusal to contribute to the campaign fund, and stating in effect that it was due to inefficiency and to unsatisfactory production in the branch agencies of which plaintiff was manager from 1934 to 1951, so that it finally became necessary to discontinue plaintiff’s services.

The letter concludes that the only mistake made by defendant was in giving plaintiff so long an opportunity to make good, in the hope that he might improve. That letter is the basis of this suit. Plaintiff asserts that the statements therein are false, made with malice, and are therefore libelous and unprivileged. The letter in question was dictated by the president of the defendant company to a company-employed stenographer, who wrote it. It was then mailed to Senator Sparkman in reply to his inquiry, and was received and read by him in Washington, D. C.

Plaintiff relies on these circumstances as a sufficient publication to support an action for libel against the corporate defendant. It is not charged that the letter was seen by any other person. Publication is essential to libel, and the publication must be made to one or more third parties. It is held in New York that dictation of a libelous letter by an individual to his own employee constitutes a sufficient publication in an action against the individual who dictated the letter, as in such circumstances the stenographer is a third party. Ostrowe v. Lee, 256 N.Y. 36, 175 N.E. 505; Horovitz v.

Weidenmiller, Sup., 53 N.Y.S.2d 379; Nelson v. Whitten, D.C., 272 F. 135. But this is not such a case. Here, the letter was written by, and the action is against, a corporate defendant which can act only through its agents. Both the person who dictated the letter, and the stenoggrapher who transcribed it, were employed by and acting for the corporation in the performance of a single corporate function, each supplying a component part thereof. When the letter was thus dictated and transcribed, it was not the act of two individuals acting separately.

It was one corporate entity acting through two instrumentalities, neither of whom is a third party as respects the corporation, because each is acting as a part of the corporate entity in the performance of a single corporate act, the production of the letter, in the regular course of their duties. This court, has held that where the1 language complained of was communicated only hy one corporate officer to another in the regular course of the corporation’s business, such communication did not amount to a publication which would support an action for libel. Biggs v. Atlantic Coast Line R. Co., 5 Cir., 66 F.2d 87.

Although there is one case to the contrary, Bradley v. Conners; 169 Misc. 442, 7 N.Y.S. 2d 294, the weight of authority in New York, where the letter in question was dictated and transcribed, is that mere dictation of libelous matter by a corporate officer or employee to a stenographer also employed by the corporation, in the regular course of the corporation’s business, is not such a publication as will support an action for libel against the corporation itself,, as in such circumstances the stenographer is not a third party. Wells v. Belstrat Hotel Corp., 212 App.Div. 366, 208 N.Y.S. 625; Owen v. J. S.

Ogilvie Pub. Co., 32 App.Div. 465, 53 N.Y.S. 1033; Loewinthan v. Beth David Hospital, Sup., 9 N.Y.S.2d 367. This rule is harmonious with our own holding in Biggs v. Atlantic Coast Line R. Co., supra. This is not such a case as Kennedy v. James Butler, 245 N.Y. 204, 156 N.E. 666, in which a corporate defendant ' communicated libelous matter to employees' who had no

part in producing the writing, thus exceeding the normal necessities of preparing the writing. If the language of this letter had been communicated to an employee of the corporation whose duties were unconnected with the process by which the letter was produced, such communication might be regarded as an actionable publication. But such is not the case here. Upon the authorities above cited, we hold that there was no sufficient publication of the letter in New York.

We have been directed to no decision squarely in point in the District of Columbia, as to whether writing the letter to Senator Sparkman, in the circumstances here involved, would constitute publication, although that jurisdiction follows the established general rule that it is essential to liability for either libel or slander that the defamatory language be communicated to some one other than the person defamed. Washington Annapolis Hotel Co. v. Riddle, 83 U.S.App.D.C. 288, 171 F.2d 732. Compare National Disabled Soldiers’ League v. Haan, 55 App.D.C. 243, 4 F.2d 436.

It is the law of Alabama, however, which is the state of the forum in which this action was brought, and the state of which plaintiff is a citizen, that if the' language complained of was uttered only to the complaining party or to his agent representing him in the matter discussed in the communication, it is not such a publication as will support an action for slander. Particularly is this true where the communication was solicited by the plaintiff or his agent. McDaniel v. Crescent Motors, 249 Ala. 330, 31 So.2d 343, 172 A.L.R. 204.

This rule prevails in many other jurisdictions, though there is authority to the contrary. See note, 172 A.L.R. 208. In making the inquiry above mentioned, Senator Sparkman was acting at the express request of plaintiff and with his approval, — virtually as plaintiff’s alter ego. Defendant’s president replied to the person through whom the inquiry was thus made. The letter complained of having been solicited by plaintiff, through his representative Senator Sparkman, plaintiff thereby impliedly consented that defendant reply through the same representative.

In contemplation of law it was a reply to the plaintiff himself. Without plaintiff’s solicitation, the letter would not have been written. Upon the authorities above cited, we hold that there was no sufficient publication in the District of Columbia. The statements in the letter sued on do not exceed the scope of the inquiry so as to render the publication actionable because excessive, within the doctrine of Massee v. Williams, 6 Cir., 207 F. 222. Plaintiff asserts that the language of the letter was uttered with malice, thus destroying the qualified privilege which would otherwise attend it.

But we do not reach the matter of privilege or malice until publication has been established, which here has not been done. Affirmed.