Opinion
No. 40263.
November 5, 1956.
1. Libel and slander — evidence — sustained finding that local insurance agent did not make defamatory statements ascribed to him by insured.
In action by insured, whose insurance was cancelled because of allegedly unfavorable credit rating, against insurer, its general agent, and its local agent for libel and slander, evidence sustained finding that local agent did not make the defamatory statements ascribed to him by insured.
2. Libel and slander — letter written to local agent of insurer by general agent concerning financial condition of insured — not libelous — qualifiedly privileged communication.
Letter, which was written to local agent of insurer by general agent of insurer, and which stated that in view of report concerning financial condition of insured and insured's credit rating, insurer desired to have insurance cancelled, was not libelous, and even if letter had been libelous it was a qualifiedly privileged communication written by the general agent to his local agent about a matter in which both were interested and would not form the basis of a libel action, by insured, in absence of showing of malice.
3. Libel and slander — evidence — credit report forming basis of letter — properly admitted.
In such action, Trial Court properly admitted in evidence credit report which formed the basis of the letter.
4. Appeal — damages — refusing to permit plaintiff to show defendant's financial condition — not prejudicial error — where jury's verdict denied plaintiff actual damages.
Where jury's verdict denied plaintiff right to recover even actual damages, alleged error in refusing to permit plaintiff to show financial worth and condition of one of the defendants was not prejudicial error.
Headnotes as approved by Holmes, J.
APPEAL from the Circuit Court of Newton County; W.E. McINTYRE, Judge.
Melvin, Melvin Melvin, Laurel; Laurel G. Weir, Philadelphia, for appellant.
I. The Trial Court erred in sustaining objections to the testimony offered on behalf of the plaintiff to establish the net worth of the defendant, which said objections and ruling of the Court appear in the stenographer's notes; and the Court erred in refusing to permit the plaintiff to introduce the evidence showing net worth of the defendant insurance company at the close of plaintiff's testimony and at the close of defendant's testimony. Inter-State Co. v. Gary, 122 So. 756.
II. The Court erred in overruling objections to certain questions and answers made by the witness, W.J. Perryman, in reference to his alleged Retail Credit Company's report as to the reputation and character of the plaintiff, all of which appears in the stenographer's notes.
III. The Court erred in permitting the defendant to introduce into the record the Retail Credit Company report, which was unsigned, was purely hearsay testimony and was improperly admitted as evidence and was prejudicial to the plaintiff.
IV. The Court erred in failing and refusing to exclude from the jury certain questions asked and answers made by the witness, W.J. Perryman, and the defendant, Charles E. Foster, as this testimony was highly prejudicial to the rights of the plaintiff. Alabama V. RR. Co. v. Searles, 71 Miss. 744, 16 So. 255; Barclay v. Smith (Miss.), 36 So. 449; Board of Levee Comrs. v. Nelms, 82 Miss. 416, 34 So. 149; Citizens Bank of Coldwater v. Callicutt, 178 Miss. 747, 174 So. 78; Illinois Cent. RR. Co. v. Ruffin (Miss.), 3 So. 578; Johns-Mansville Products Corp. v. Cather, 208 Miss. 268, 44 So.2d 405, 408; Long v. Griffith, 113 Miss. 659, 74 So. 613.
V. The Court erred in granting to the defendant all and singular the instructions requested by the defendant and given by the Court.
VI. The Court erred in granting to the defendant instructions on the question of privileged communication. Farley v. Bufkin, 159 Miss. 350, 355, 132 So. 86; Great Atlantic, Pacific Tea Co. v. Majure, 176 Miss. 356, 167 So. 637, 638; Krebs v. McNeal, 222 Miss. 560, 76 So.2d 693, 699; Kroger Groc. Baking Co. v. Harpole, 175 Miss. 227, 238, 166 So. 335; Louisiana Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705, 708; Missouri Pac. Transp. Co. v. Beard, 179 Miss. 764, 176 So. 156, 159; Montgomery Ward Co. v. Skinner, 200 Miss. 44, 25 So.2d 572, 577; Natchez Times Pub. Co. v. Dunigan, 221 Miss. 320, 72 So.2d 681; Reliance Mfg. Co. v. Graham, 181 Miss. 549, 179 So. 341; Sumner Stores of Miss. v. Little, 187 Miss. 310, 192 So. 857; Scott-Burr Stores Corp. v. Edgar, 181 Miss. 486, 177 So. 766; Sheffield v. Journal Pub. Co., 211 Miss. 294, 51 So.2d 479, 481.
VII. The verdict of the jury is contrary to the law and evidence.
VIII. The verdict of the jury is against the weight of the evidence.
IX. The answer of the defendant is not responsive to the pleadings, and the evidence is not responsive nor contradicts the answer filed by the defendants. Calvert Fire Ins. Co. v. Swain, 217 Miss. 773, 65 So.2d 254; Jarnigan v. Fleming, 43 Miss. 710; Chap. 230 Sec. 4, Laws 1948; 33 Am. Jur., Sec. 246 p. 227. Sanford Alford, Philadelphia; Joseph S. Mead, Birmingham, Alabama, for appellees.
I. After testimony has been received into evidence, objections thereto come too late, and the appropriate procedure would be to move to strike out or exclude the testimony. Wilson v. Owens, 2 Miss. (1 How.) 126; Skinner v. Collier, 5 Miss. (4 How.) 396.
II. It is only where punitive damages are properly allowable that evidence of the wealth of a defendant may be shown in an action for defamation. Interstate Co. v. Garnett, 154 Miss. 325, 122 So. 373; Pullman Palace-Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53.
III. Assignments of error which are not argued in appellant's brief are deemed waived on appeal. Kennedy v. Little, 191 Miss. 73, 2 So.2d 163; E.L. Bruce Co. v. Brogan, 175 Miss. 208, 166 So. 350.
IV. In an action for defamation, where there is shown to be a qualifiedly privileged occasion, the question of awarding punitive damages is improperly submitted to the jury, where there is no evidence showing actual malice. Scott-Burr Stores v. Edkar, 181 Miss. 486, 165 So. 623, 177 So. 766.
V. A written report, although not between the parties, is nevertheless admissible where it constitutes a part of the res gestae. Wells v. Shipp, 1 Miss. (Walk.) 353; Stovall v. Farmer's Mechanic's Bank, 16 Miss. 305, 8 Sm. M. 305.
VI. Any piece of evidence, apart from the consideration of its inherent truth vel non, is admissible where it is completely consistent with and relevant to the probandum thereby sought to be established. State ex rel. Dist. Atty. v. Ingram, 179 Miss. 485, 176 So. 392; Meridian Star v. Kay, 211 Miss. 536, 52 So.2d 35.
VII. Where appellant fails to argue alleged errors on appeal, they will be considered waived. Kennedy v. Little, supra; E.L. Bruce Co. v. Brogan, supra.
VIII. Where the language of an allegedly libelous writing is not susceptible of being construed to be libelous, and there are no allegations that it was intended or understood other than it is commonly understood, the question is one for the Court and should not be submitted to the jury. Heralds of Liberty v. Rankin, 130 Miss. 698, 94 So. 849; Manasco v. Walley, 216 Miss. 614, 63 So.2d 91; Morehead v. U.S.F. G. Co., 187 Miss. 55, 192 So. 300.
IX. Where a questioned instruction correctly states the law applicable to a qualifiedly privileged occasion and there is shown to exist such an occasion, its giving cannot be error. Scott-Burr Stores v. Edgar, supra; Holliday v. Maryland Casualty Co., 75 So. 764; Louisiana Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705; Missouri Pacific Transp. Co. v. Beard, 179 Miss. 764, 176 So. 156.
X. The giving of an instruction which conflicts with a properly given instruction more favorable to appellees, would not constitute reversible error. Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800; Teche Lines v. Britt, 176 Miss. 681, 170 So. 294.
XI. Even though charges may be inartificially drawn, if they express correct statements of law which have ample basis in the evidence, their giving would not constitute prejudicial error. Clary v. Breyer, 194 Miss. 612, 13 So.2d 633.
XII. In passing upon a ruling of a Lower Court, the Supreme Court will look to the whole record, and if in the light thereof, no harm appears to have resulted to appellant from the ruling complained of, it will not constitute grounds for reversal, even though it may have been erroneous when made. Metzger v. Sessions, 198 Miss. 892, 23 So.2d 746.
XIII. Where there is evidence supporting the view that an alleged defamatory communication was made in good faith, without actual malice, and concerning a subject matter in which the parties had a mutual interest, the Trial Court properly instructed the jury as to the law applicable to occasions of qualified privilege. Reliance Mfg. Co. v. Graham, 181 Miss. 549, 179 So. 341; Missouri Pacific Transp. Co. v. Beard, supra; Louisiana Oil Corp. v. Renno, supra; Grantham v. Wilkes, 139 Miss. 777, 100 So. 673; Illinois Cent. RR. Co. v. Wales, 177 Miss. 875, 171 So. 536; Gardner v. Standard Oil Co., 179 Miss. 176, 175 So. 203; New Orleans Great Northern RR. Co. v. Frazer, 158 Miss. 407, 130 So. 493; Kroger Groc. Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335; Cartwright-Caps Co. v. Fischel Kaufman, 113 Miss. 359, 74 So. 278; C.I.T. Corp. v. Correro, 192 Miss. 522, 6 So.2d 588; Lucas E. Moore Stave Co. v. Wells, 111 Miss. 796, 72 So. 228; Holliday v. Maryland Casualty Co., supra; Scott-Burr Stores v. Edgar, supra.
XIV. The Supreme Court will not interfere with a verdict unless it can say with entire confidence that the verdict is without substantial support of believable evidence. Tri-State Transit Co. v. Moore, 188 Miss. 722, 196 So. 231; Westbrook v. Corneil, 199 Miss. 118, 23 So.2d 753.
XV. It is beyond the power of the reviewing court to disturb a verdict based upon conflicting evidence. Saenger Theatres Corp. v. Herndon, 180 Miss. 791, 178 So. 86; C. R. Stores v. Scarborough, 189 Miss. 872, 196 So. 650; Faulkner v. Middleton, 186 Miss. 355, 188 So. 565.
XVI. The Supreme Court will set aside the jury's verdict only when it is contrary to the great weight of the evidence. Mississippi Power Light Co. v. Tripp, 183 Miss. 225, 183 So. 514; Montgomery Ward Co. v. Windham, 195 Miss. 848, 17 So.2d 208.
XVII. Where the jury's verdict has the approval of the Trial Judge, the Supreme Court will not disturb it unless the preponderance of the evidence against the verdict is so great as to indicate that passion, prejudice or corruption entered into its rendition. White's Lbr. Supply Co. v. Collins, 186 Miss. 659, 192 So. 312.
XVIII. Where a person ordinarily the agent of another steps aside from the agency and engages in a matter completely personal to him, torts committed by him at such time are not the responsibility of his erstwhile principal. Stovall v. Jepsen, 195 Miss. 115, 13 So.2d 229; Jefferson v. Yazoo M.V. RR. Co., 194 Miss. 729, 11 So.2d 442; Hahn v. Owens, 176 Miss. 296, 168 So. 622.
XIX. The Supreme Court will not set aside a verdict in favor of a particular defendant unless it could say that the verdict in favor of such defendant was against the great weight of the evidence, even though it should consider that as to another defendant, the verdict should be set aside. Horn v. Guthrie (Miss.), 21 So.2d 813; Sikes v. Thomas, 192 Miss. 647, 7 So.2d 527.
XX. If for no other reason, evidence as to the truth of alleged slanderous remarks should be admitted in mitigation and diminution of the amount of damages allowable. Jefferson v. Bates, 152 Miss. 128, 118 So. 717; Sec. 1479, Code 1942.
This is an action for libel and slander brought by the appellant, E.L. Miley, in the Circuit Court of Newton County against the appellees, Charles E. Foster, a resident of Newton County, Implement Dealers Mutual Insurance Company, a non-resident corporation domiciled in the State of North Dakota and doing business in Mississippi, and W.J. Perryman and Company, Inc., a non-resident corporation domiciled in the State of Alabama and having its principal office in Birmingham, Alabama.
The trial in the court below resulted in a jury verdict and judgment for appellees, and from the judgment entered, this appeal is prosecuted.
The case arose as follows: The appellant and his brother, Monroe Miley, operated a meat market in the rear of the Jitney Jungle store in Union, Mississippi. W.J. Perryman and Company, Inc., was the general agent for the Implement Dealers Mutual Insurance Company for the territory embracing Mississippi, and appointed Charles E. Foster as the local agent of the company in Union, with authority to accept risks and countersign and service policies of insurance. In the course of his business, Foster wrote and delivered to the Mileys a policy of insurance in the Implement Dealers Mutual Insurance Company covering their meat market, effective January 1, 1955. Thereafter Foster received the following letter from W.J. Perryman and Company, Inc.:
"January 26, 1955
"Mr. Charles E. Foster Foster Mutual Insurance Agency Box 222 Union, Mississippi
Dear Mr. Foster:
Re: Implement Dealers No. 41227 E.L. M. Miley
We have recently only been able to complete an engineering report of the above risk and in view of the information which we have received, we will be unable to continue this liability.
Our report covers the financial condition of the insureds and their credit rating and in view of the information which we have, we will have to ask to be relieved of liability without any delay.
The early receipt of the policy as evidence of cancellation will certainly be appreciated.
Yours very truly,
W.J. Perryman Company, Inc. s/ K.L. Williams Chief Underwriter" KLW/fb
Upon the receipt of said letter and pursuant to the instructions therein contained, Foster promptly mailed to the Mileys a notice of cancellation, dating the same January 31, 1955, and making the cancellation effective February 5, 1955. The policy contained a provision permitting either the insuror or insureds to cancel the policy on prescribed notice. Foster and the appellant were personal friends. Foster traded at the appellant's market and had other policies of insurance in force which he had written for the appellant, notably, insurance on the appellant's residence and garage. After issuing the notice of cancellation, Foster called on the appellant at his meat market to show him the letter by way of explanation as to why he was required to issue the notice of cancellation, and to offer to write the insurance in another company. After showing or reading the letter to the appellant, Foster wrote the insurance in another company and the appellant paid the premium thereon, and this insurance and the other policies which Foster had written on the appellant's residence and garage were continued in force. Later this suit was filed. The appellant charged in his declaration that the letter in question was libelous and that the contents thereof were untrue and that it was written maliciously with intent to injure the appellee in his good name, fame, and reputation; that Foster read the letter to the appellant in his meat market in a loud voice in the presence of others, and angrily and maliciously charged the appellant in the presence of others with being dishonest and not paying his debts and with committing a crime by burning a building to collect the insurance thereon.
The appellees filed separate answers, denying that the letter in question was libelous, or that it was written maliciously, and averring that the contents thereof were privileged, and denying that Foster had made the charges against the appellant as alleged in the declaration.
The proof as to what was said by Foster to the appellant in the meat market was in conflict. The appellant testified that on the occasion when Foster called on him in the meat market Foster publicly and in the presence and hearing of others uttered the defamatory statements as alleged in the declaration, and he introduced several witnesses to corroborate him. On the other hand, Foster categorically and specifically denied that he made the statements which the appellant ascribed to him in his declaration and in his testimony, and denied that he had any malice toward the appellant, but on the contrary, testified that he and the appellant were friends and that he wanted to retain his friendship and his insurance business. Banks McNair, a witness for the appellees, testified that he was a mutual friend of the appellant and Foster, and when he learned of the suit he accompanied the appellant to Foster's office; that Foster was not in his office but that a copy of the declaration was on his desk; that he went over the declaration with the appellant and asked him if the charges in the declaration were true and if he had made them, and he said that the charges were not true and that he had not made them and that he would see his lawyer about the matter.
In submitting the case to the jury, the court instructed the jury that the contents of the letter in question were not libelous and left to the determination of the jury the question as to whether Foster had made the defamatory statements ascribed to him in the declaration. This question was resolved by the jury in favor of the appellees.
(Hn 1) The appellant contends that the verdict of the jury is against the overwhelming weight of the evidence. We do not think so. The evidence on the question as to whether Foster made the defamatory statements ascribed to him was in conflict and clearly presented a question for the jury's determination, and there is ample evidence to support the verdict of the jury.
(Hn 2) We are of the opinion that the court correctly instructed the jury that the letter in question was not libelous. A casual reading of the letter discloses that it contains nothing of a defamatory nature. If the letter had been libelous, however, it was clearly a qualifiedly privileged communication written by the general agent to his local agent about a matter in which both were interested and would not form the basis of an action in the absence of a showing of malice. In the case of Louisiana Oil Corporation, et al v. Renno, 173 Miss. 609, 157 So. 705, the Court defined a qualifiedly privileged communication as one made in good faith without malice by a person having an interest in or duty respecting the subject to a person having a corresponding interest or duty, though containing otherwise slanderous matter.
In the very recent case of Killebrew v. Jackson City Lines, Inc., 82 So.2d 648, the Court said: "In the absence of proof that the words were spoken by motives of spite, ill will, malicious purpose, or of a wanton disregard whether the words were true or false, the privilege of the occasion is not destroyed," citing Louisiana Oil Corporation, et al v. Renno, supra, and Scott-Burr Stores Corp. v. Edgar, 181 Miss. 486, 177 So. 766.
That the writer of the letter was not actuated by malice, spite, ill will or a wanton disregard whether the words written were true or false is inescapable from the evidence. W.J. Perryman and Company did not even know the appellant. The letter was written upon information furnished by a reliable credit reporting agency, and there is nothing in the evidence to indicate bad faith on the part of the writer of the letter.
(Hn 3) The appellant further contends, however, that the court erred in admitting in evidence the credit report which formed the basis of the letter. We find no merit in this contention. The evidence is undisputed that it is a matter of common business practice for insurance companies to have investigated the credit rating of prospective insureds, and of business concerns generally to make fair investigation as to the credit standing and reputation of those with whom they contemplate doing business. And it is further undisputed in the evidence that the reporting agency who made the report was a reputable agency. We think that the general agent of the insurance company had the right to rely upon this report. If one to whom a credit report is made by a reputable agency must before relying upon the report ferret out the accuracy of the information contained in the report, then the entire purpose and function of a reporting agency would be defeated. If for no other reason, the report was admissible, competent and pertinent on the question of the good faith and freedom from malice on the part of the writer of the letter.
(Hn 4) It is further contended by the appellant that the court erred in not permitting him to show the financial worth and condition of the appellee insurance company. This evidence was of course offered under the issue of punitive damages. Without other discussion that might be made of this complaint, it is sufficient to say that in view of the jury's verdict which denied the appellant the right to recover even actual damages, the action of the court in sustaining the objection to said evidence was harmless and does not constitute reversible error.
We have carefully considered the exceptions of the appellant to a number of the court's instructions and find in them no basis for reversal.
Considering the record as a whole, we are of the opinion that the case was properly submitted to the jury under instructions which correctly announced the applicable controlling principles of law, and that the record reveals no reversible error. The judgment of the court below is therefore affirmed.
Affirmed.
McGehee, C.J., and Hall, Kyle and Gillespie, JJ., Concur.