Opinion
No. 34826.
March 9, 1942.
1. LIBEL AND SLANDER.
A statement to one of two dealers in electric refrigerators by agent of corporation purchasing deferred payment contracts and notes from dealers, with whom it stored refrigerators not paid for by purchasers thereof, while trying to adjust business controversy as to storage place of refrigerators removed by dealers from their place of business, that "You know you all are holding stolen property," did not exceed such agent's privilege and hence did not constitute "slander" entitling such dealer to recover damages from corporation.
2. LIBEL AND SLANDER.
A corporation agent's statement, "That is right," in reply to electric appliance dealer's question, "Do you mean to tell me I was an honest man before I went into the appliance business, but now I am a crook?" while agent was trying to adjust business controversy as to storage place of electric refrigerators removed from dealers' place of business, at which corporation stored them after failure of purchasers thereof to pay purchase money notes sold to corporation by dealers, was invited and hence authorized by such dealer, so as to bar his recovery of damages from corporation for slander.
3. LIBEL AND SLANDER.
One inviting statement concerning him by another cannot claim that he was slandered thereby, unless it appears that privilege extended by such invitation was abused and made occasion for maliciously publishing matter defamatory of person extending invitation.
4. LIBEL AND SLANDER.
A person cannot be allowed to entrap people into making statements to him on which he can take proceedings for slander.
5. LIBEL AND SLANDER.
To recover damages from corporation for slander on count of declaration, alleging that corporation's agent said, concerning plaintiff and another, to third person, "That is what we get for financing a couple of thieves," jury must believe that such agent used identical or synonymous words alleged and it is not sufficient that same general idea was conveyed by words used. The words "thieves" and "crooks" not being synonymous.
6. LIBEL AND SLANDER.
In action for slander, whether defendant corporation's agent referred to plaintiff and another in statement to third person as a "couple of thieves," as alleged in declaration, or as a "couple of crooks," was for the jury on conflicting evidence.
APPEAL from the circuit court of Leflore county, HON. S.F. DAVIS, Judge.
R.A. Jordan and Porter Peteet, both of Greenwood, and William A. Goodman and C. Rudolph Johnson, both of Memphis, Tenn., for appellant.
A communication made in good faith and on a subject matter in which the person making it has an interest, or in reference to which he has a duty, is privileged if made to a person or persons having a corresponding interest or duty, even though it contains matter which without this privilege would be slanderous, provided the statement is made without malice and in good faith.
17 R.C.L. 341; N.O. G.N.R. Co. v. Frazer, 158 Miss. 407, 130 So. 493; Newell on Slander and Libel (4 Ed.), Sec. 341; Gatley Libel and Slander 193.
See, also, Louisiana Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705; Gardner v. Standard Oil Co., 179 Miss. 176, 175 So. 203; Missouri Pacific Transport Co. v. Beard, 179 Miss. 764, 176 So. 156; Reliance Mfg. Co. v. Graham, 181 Miss. 549, 179 So. 341; Scott-Burr Stores Corporation v. Edgar, 181 Miss. 486, 177 So. 766; 36 C.J., Libel and Slander, 1242, Sec. 208.
A person who instigates or procures a libelous communication to be published against himself, for the purpose of predicating a suit for damages on it, cannot recover in such an action. If the inquiry is made as a trick for the purpose of inducing the defendant to utter a slander, the words thus elicited are not a ground of action.
17 R.C.L. 321; Rudd v. Cameron, 26 Ont. L. Rep. 154, Ann. Cas. 1913A, 618; Ridgeway State Bank v. Bird (Wis.), 202 N.W. 170, 37 A.L.R. 1343; 36 C.J. 1246-7.
Going now to the second count of the declaration, the proof shows that the exact words charged in that count were not spoken nor were synonymous words spoken, and that Rogers, to whom they were published, did not understand that appellee was being charged with the crime of grand larceny. The declaration charges that Abrams said to Rogers: "That's what we get for dealing with a couple of thieves." Shelton's testimony, which must be taken as true, is that Abrams said: "That's what we get by dealing with a couple of crooks." All thieves can probably be classed as crooks, but all crooks are not thieves. The words are not synonymous and under authority of the case of Baldwin Piano Co. v. Jones, 152 Miss. 254, 119 So. 182, the verdict would have been for appellant if the jury accepted Shelton's testimony as set forth above. So it follows that the lower court was in error in granting the peremptory instruction on this count.
W.H. Montjoy and Alfred Stoner, both of Greenwood, for appellee.
It will be observed that appellant contends that the declarations were qualifiedly privileged. It is our contention that in this statement appellant is in error, for the reason that the slanders were made recklessly and indifferently and were made to and in the hearing of those who had no interest whatever in the matter. In the second place, even though it be conceded that the declarations were qualifiedly privileged, we submit that the privilege was grossly abused, especially since appellee, himself, had nothing to do with storing the property and there was no evidence that he knew anything about it.
A communication is privileged only when due regard to the interest of the person making it renders it necessary.
Love v. Commercial Casualty Co., 26 F. Supp. 481.
Counsel cite Louisiana Oil Company v. Renno, 173 Miss. 609, 157 So. 705. We submit that the opinion in this case also upholds the contention of appellee.
A communication which goes beyond the occasion exceeds the privilege. The statement must be sincerely made, but this alone will not justify the person making it; there must be facts and circumstances which reasonably impose on him the duty to make the statement.
Louisiana Oil Company v. Renno, 173 Miss. 609, 157 So. 705.
Counsel cite authorities on the point that a communication made in good faith and on a subject matter in which the person making it has an interest, or in reference to which he has a duty, is privileged, if made to a person or persons having a corresponding interest or duty, even though it contains matter which, without this privilege, would be slanderous, provided the statement is made without malice and in good faith. We submit that the facts in the case at bar do not support the text for the following reasons: First, the slanderous remark to Rogers was not made in good faith; secondly, it was not made on a subject matter in which Rogers had an interest, because he had not been employed by the Correros for three weeks, and because Abrams knew that the property was removed from the place of business and stored three weeks after Rogers left the employment of Correro, and knew that Toney Correro had written the C.I.T. Corporation informing them of the removal at the time the property was removed, and knew, therefore, that Rogers had no duty and no concern with the transaction, and knew that the storing of the merchandise was done by Toney Correro and that appellee, Phillip Correro, had nothing to do with it, and further, because the statement, "That is what we get by dealing with a couple of thieves," was made with malice and was not made in good faith. All the proof shows that the Correros were men of good reputation and character at the time they began to transact business with the C.I.T. Corporation and that they remained of good character, although Abrams, by his slanderous remarks, besmirched their reputations.
Argued orally by R.A. Jordan, for appellant, and by Alfred Stoner, for appellee.
This is an action for slander brought by the appellee against the appellant. The declaration contains two counts. At the close of the evidence the appellant requested but was refused an instruction charging the jury to find for it on the first count, and another to find for it on the second. The court then directed the jury to return a verdict for the appellee after assessing his damages, and there was a verdict and judgment accordingly.
The first count of the declaration charges that Abrams, an agent of the appellant, said of and to the appellee, "You know you all are holding stolen property," and in answer to the following inquiry then made of him by the appellee, "You mean I was an honest man until I went into the appliance business, and now I am a crook?" replied, "You are right."
The second count charged that Abrams said to another, "That's what we get for dealing with a couple of thieves." The statements in both counts were alleged to have been made while Abrams was about the appellant's business.
The evidence discloses in substance the following: The appellee and his brother, Toney Correro, were engaged, under the name of Dixie Refrigeration Engineering Company, in the business of selling electrical appliances, particularly refrigerators, at retail in Greenwood, Mississippi, Toney being the manager thereof. They would sell refrigerators by written contract on deferred payments, taking notes therefor and retaining the title thereto until all of these notes were paid. These contracts and notes would be sold by the Correros to the appellant, which was doing business in Memphis, Tennessee, and which thereafter collected the payments due thereon. On the failure of any purchaser to pay for the refrigerator purchased by him, the appellant would take possession of it and either sell it under the provisions of the contract or store it with the Correros at their place of business in Greenwood, who would hold it subject to the appellant's order.
When the matters hereinafter to be stated occurred, the Correros had in their possession and were supposed to have at their place of business several such refrigerators that had been repossessed by the appellant.
An agent of the appellant would at intervals visit the Correros and check the number of the appellant's refrigerators then in their possesion. A dispute arose between the appellant and the Correros in which the latter claimed that the appellant owed it several hundred dollars on the notes of their customers sold by them to the appellant, but which the appellant denied. While this controversy was unsettled, Shelton, an agent of the appellant, visited the Correros for the purpose of checking the refrigerators then in their possession. He discovered that no refrigerators belonging to the appellant were at the Correros' place of business and on inquiring of Toney Correro where they were, obtained no satisfactory information relative thereto. The fact was that the refrigerators had been removed by the Correros from their place of business and stored elsewhere, but where they refused to disclose to Shelton, who then telephoned this information to the appellant at Memphis, resulting in Abrams, another agent of the appellant, going to Greenwood to Shelton's assistance. They called on Phillip Correro at a place other than where the refrigerator business was conducted, and were informed by him that he knew nothing of the matter as it was attended to by his brother Toney. By appointment Abrams, Shelton and the two Correros met at the Correro place of business the next night. This place consisted of a room considerably longer than it was wide, with an office about half way its length enclosed with beaverboard extending some distance up with lattice from there up, but not to the ceiling. There was one door from this office into the main room. Just before the conference began in this office an employee of Correro named Terney was requested by Abrams to leave the office. This he did, and according to Abrams and Shelton the door of the office was then closed. But according to the evidence for the Correros it was left open. Without the knowledge of Abrams or Shelton Terney remained in the main room just outside of the office, as also did Sam Correro, a brother of Phillip and Toney. Both of them said they heard words alleged to have been spoken by Abrams on which the first count of this declaration is predicated. This conference lasted for quite a while but ended where it began. In the course of it, and after he had failed to induce the Correros to disclose where they had stored the refrigerators, Abrams, according to Phillip and Toney, said to them, "You all know you are holding stolen merchandise." According to Terney and Sam Correro, he said, "Do you know you are holding stolen merchandise?" Then, according to all of the appellee's witnesses, "Phillip jumped up and said, `Do you mean to tell me I was an honest man before I went into the appliance business and now I am a crook?" And Abrams replied, `That is right.'" According to Abrams and Shelton, Abrams' reply was, "If you want to take it that way, it is all right with me." According to the appellee's evidence Abrams was mad and spoke in a loud tone of voice, both of which were negatived by the appellant's evidence. The reason given by the Correros for refusing to tell Abrams or Shelton where they had stored the refrigerators was that they intended to hold them as security for the money they claimed the appellant owed them.
The Correros, without the knowledge of Abrams or Shelton, had placed a recording machine where a record would be made of this conversation. The next morning Toney showed them a record on which he said the conversation of the night before was recorded. On being asked while on the witness stand, "For what reason did you have this recording device?" he replied, "I knew when they came down this time they were going to be as mad as the dickens, and I expected them to use some language which they had been accustomed to using on several other occasions." He further said that the machine failed to record the conversation so that it could be reproduced from the record.
These statements by Abrams were made on a privilege occasion while he, as the appellant's agent, was trying to adjust a business controversy between it and the appellee. The first did not exceed the privilege, and the making of the second was invited, and therefore authorized, by the appellee. One cannot invite another to make a statement concerning him and when his request is complied with claim that he was slandered thereby, unless it appears that the privilege extended by the invitation was abused and made the occasion of maliciously publishing matter defamatory of the one extending the invitation. That "a plaintiff is not to be allowed to entrap people into making statements to him on which he can take proceedings," requires no supporting authority, but if desired it may be found in Kroger Grocery Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335; Odgers on Libel and Slander (5 Ed.), 294; 23 Am. Jur. (Libel and Slander), Sec. 129; and 36 C.J. (Libel and Slander), Sec. 215; Note to Chistopher v. Akin, 46 L.R.A. (N.S.) 104. The appellee should not have been permitted to recover on the first count of his declaration.
The appellee's evidence in support of the second count of his declaration was given by Rogers, a former employee of the Correros, who said that Abrams and Shelton called on him at his residence and asked him if he could assist them in locating the refrigerators, and during the conversation relative thereto Abrams said to him, "That is what we get for financing a couple of thieves." According to the evidence for the appellant what Abrams then said was, "That is what we get by dealing with a couple of crooks." In order for the appellee to recover on this count the jury must have believed that Abrams used the identical or synonymous words alleged in the appellee's declaration. "It is not sufficient that the same general idea is conveyed." Jones v. Edwards, 57 Miss. 28; Baldwin Piano Co. v. Jones, 152 Miss. 254, 119 So. 182. The words "thieves" and "crooks" are, of course, not identical and are not synonymous. All thieves probably are crooks, but all crooks are not necessarily thieves. If the jury accepted the appellant's version of the language used by Abrams, the appellee was not entitled to recover on this second count, and the jury should have been permitted to resolve this conflict in the evidence. The appellee's request for a directed verdict should not have been granted and the appellant's request for a directed verdict on the first count of the declaration should have been granted.
Reversed and remanded.