Opinion
No. 33748.
June 12, 1939. Suggestion of Error Overruled July 8, 1939.
1. PLEADING.
In libel action against bank and president thereof, allegation of declaration that defendants wrote a letter to persons from whom plaintiff had borrowed personal property, demanding possession of property and claiming that bank held deed of trust against the property, was required to be taken in connection with allegation that in making demand defendants claimed that deed of trust had been executed by plaintiff.
2. LIBEL AND SLANDER.
A defamatory communication is made concerning the person to whom its recipient correctly or mistakenly but reasonably understands it as intended to refer.
3. LIBEL AND SLANDER.
Extrinsic facts may be relied on to show that a defamatory statement refers to a particular individual although the language used appears to defame no one.
4. LIBEL AND SLANDER.
To render a statement defamatory it is unnecessary that everyone recognize the particular individual referred to as the person intended, but it is sufficient that any recipient of the communication reasonably so understands it.
5. PLEADING.
On demurrer, all averments of declaration must be taken as true.
6. LIBEL AND SLANDER.
At common law, any written or printed language which tends to injure one's reputation and thereby expose him to public hatred, contempt, or ridicule, degrade him in society, lessen him in public esteem, or lower him in the confidence of the community, is actionable per se, and no special damages are necessary to be alleged or shown in order to prevail against demurrer or motion to exclude.
7. LIBEL AND SLANDER.
The truth of the matter alleged to be defamatory, whether in slander or in libel, is a good defense.
8. LIBEL AND SLANDER.
The meaning to be ascribed to an allegedly defamatory publication is that which the recipient would correctly or mistakenly but reasonably understand as intended to be expressed, provided the recipient did actually understand it in the defamatory sense.
9. LIBEL AND SLANDER.
In determining whether statement is defamatory, account is to be taken of all the circumstances under which publication was made, so far as circumstances were known to recipient.
10. LIBEL AND SLANDER.
In libel action, declaration alleging that defendants improperly inserted, in a deed of trust executed by plaintiff, a provision covering property which plaintiff had borrowed from third persons, and that defendants claiming under deed of trust wrote third persons, demanding possession of property, stated cause of action notwithstanding that defendant did not impute to plaintiff the commission of a specific crime and notwithstanding that the declaration did not allege special damages (Code 1930, sec. 3352).
APPEAL from the circuit court of Copiah county; HON. J.F. GUYNES, Judge.
M.S. McNeil of Hazlehurst, and R.L. Jones, of Brookhaven, for appellant.
When the plaintiff executed and delivered the deed of trust to Breland in his capacity as president of the Truckers Exchange Bank, she had both the moral and legal right to have said deed of trust remain in the condition in which it was at the time she executed and delivered same, and Breland and the bank owed her the duty of preserving the said instrument as it was executed and delivered, and the fraudulent and corrupt alteration thereof by the president of the bank was a violation of both this moral and legal right of the plaintiff.
Section 931, Code of 1930; Stokes v. Newell, 165 So. 542; Section 24, Constitution of Mississippi.
We submit that the defendants owed Mrs. Conroy the legal duty of refraining from altering the instrument as executed by her, and owed her the legal duty, if they filed it for record, to file it in the same condition as it was when she delivered it to them, and that the violation of this right proximately caused the injuries and damages stated in the declaration.
The defendants, as shown by the declaration, not only violated this right of the plaintiff but they falsely swore in the bankruptcy court that she had executed the deed of trust, and, as shown by the declaration, wrote letters to the owners of the property, falsely charging Mrs. Conroy had executed a deed of trust on their property.
Magouirk v. Western Union, 79 Miss. 632.
The announcement of the Mississippi Supreme Court in the case of Telegraph Co. v. Rogers, 68 Miss. 756, that damages for mental suffering are allowable "in cases of wilful wrong, especially those affecting the liberty, character, reputation, personal security, or domestic relations of the injured party" was followed in the Magouirk case, supra, and in U.S.F. G. Co. v. State, 121 Miss. 369, in which case a lady, on arrival at Wesson, Mississippi, delivered her suit case to a transfer man, and the town marshal suspecting the transfer man of transporting liquor illegally, searched Mrs. Hardy's suit case, and she sued, claiming damages for mental pain, suffering, shame and mortification.
Saenger Theatres, Inc., v. Herndon, 180 Miss. 791.
Certainly under the allegations of the declaration, the defendants were guilty of several wilful wrongs, and as a result of such wilful wrongs, the character and reputation of the plaintiff were affected.
One's reputation is within the constitutional guaranty of personal security.
12 C.J. 941, sec. 449; 36 C.J. 1148, sec. 11.
This is not the ordinary suit of libel and slander for words spoken or printed but is a suit for damages to the injured party naturally flowing from the commission of a criminal act. The declaration charges the defendants with having altered a deed of trust in violation of Section 931, Code of 1930, and charges and alleges that as a result of such forgery and subsequent acts, the plaintiff's reputation was injured, and she was caused to suffer embarrassment and humiliation.
The fact that the suit may be one of first impression in this state or one of novelty in the specific injury, does not take it from the general rules governing liability for a breach of duty of one person to another.
Teche Lines, Inc., v. Bateman, 162 Miss. 404; 16 C.J., page 97, sec. 68; 11 C.J., page 6, sec. 11.
Wherever there is carelessness, recklessness, want of reasonable skill, or the violation or disregard of a duty which the law implies from the conditions or attendant circumstances, and individual injury results therefrom, an action on the case lies in favor of the party injured, although there is some conflict of opinion where the negligence is the immediate cause of the injury. This is equally true where the neglect is of a corporate duty by a corporation.
11 C.J., page 7, sections 12 and 13; 1 C.J., page 972, sec. 67; Piper v. Hoard, 107 N.Y. 73, 1 A.S.R. 789; Kujek v. Goldman, 150 N.Y. 176, 55 A.S.R. 670; Foot v. Card, 58 Conn. 1, 18 Am. St. Rep. 258; Pierce v. Proprietors of Swan Point Cemetery, 10 R.I. 227, 14 Am. Rep. 667.
A right of action for slander or libel is personal to the bankrupt and does not pass to the trustee.
Dent v. Town of Mendenhall, 139 Miss. 271; 11 U.S.C.A., Sec. 110, note 33 to 340, 338; Dillard v. Collins, 25 Grat. (Va.) 343; Whitaker v. Gavit, 18 Conn. 527; Milwaukee Mut. Fire Ins. Co. v. Sentinel Co., 81 Wis. 207, 51 N.W. 440, 15 L.R.A. 627; Hancock v. Caffyn, 8 Bing. 358, 21 E.C.L. 318; Wright v. Greensburg First Nat. Bank, Fed. Cas. No. 18,078; Irion v. Knapp, 132 La. 60, 60 So. 719, 43 L.R.A. (N.S.) 940.
We respectfully submit that the lower court was in error in sustaining the demurrer, and that this case should be reversed and remanded for trial on its merits.
W.S. Henley, of Hazlehurst, for appellee.
Mrs. Conroy had a right to mortgage fixtures.
6 Am. Jur., pages 215 and 216; Baggett v. McCormack, 73 Miss. 552, 55 Am. St. Rep. 554, 19 So. 89; 2 Blackstone's Commentary page 452; Blue v. Herkimer Nat. Bank, 30 F.2d 256; Bonded Building Loan Asso. v. Konner, 166 A. 79; Central Finance Corporation v. Norton-Morgan Commercial Co., 205 P. 810; Code of 1930, sections 2130 and 3352; Community State Bank v. Martin, 258 P. 498; Columbus Buggy Co. v. Turley Parker, 73 Miss. 529; Code of Virginia, sec. 5224; Carr v. Lester, 8 So. 35; Dysort v. Hamilton, 11 Tenn. App. 43; Doty v. O'Neal, 272 Ill. App. 212; Everett v. Brown, 20 N.W. 743; Fidelity Deposit Co. v. Sturtevant Co., 86 Miss. 509; First Nat. Bank of Hudson, S.C. v. Maxwell, 200 N.W. 401; General Motors Acceptance Corp. v. Morgan, 1 F. Supp. 574; Grand Rapids Showcase Co. v. Trustee of Loeb's, Inc., 279 Fed. 269; Hastings v. Wise, 297 P. 482; Howe v. Kerr, 69 Miss. 311; Indiana Motors Corp. v. Atkinson, 65 F.2d 689; 2 Kent, Com. 3d., page 585; Loden v. Payne Auto Co., 296 S.W. 78; Lee County Savings Bank v. Snodgrass Bros., 166 N.W. 680; Merriman v. Martin, 298 P. 95; McCulley v. Blanchard, 169 S.E. 746; Pierre v. Pierre, 232 N.W. 633; Roachell v. Gates, 47 S.W.2d 35; Tope v. Brattain, 21 P.2d 241; Walters v. U.S.F. G., 288 P. 1044.
The execution of a deed of trust on property belonging to another does not constitute embezzlement.
Code of 1930, sections 889 and 893; 20 C.J. 426; Clark v. State, 109 Miss. 737, 69 So. 497; 65 C.J. 38; Holt v. Ashby, 150 Ky. 612; Ivers, etc., Piano Co. v. Allen, 63 A. 735; Knight v. State, 44 So. 585; Renaker v. Gregg, 147 Ky. 368.
The declaration does not show any conduct or language charging plaintiff with false pretense.
Bensen Marxer v. Roger, 168 N.W. 881; Branch v. Knapp Co., 222 Mo. 580; 25 C.J. 589 and 608; Cooper v. Seaverns, 81 Ken. 267; First National Bank v. Maxwell, 200 N.W. 402; Illinois Cent. R.R. Co. v. Wales, 171 So. 536; Krup v. Corley, 95 Mo. App. 650; Louisville Gas Elec. Co. v. Wulf, 179 S.W. 232; Rio Grande Valley Gas Co. v. Caskey, 33 S.W.2d 848; Smith v. Missouri F. G. Co., 177 S.W. 1242; Wood v. Bibbins, 32 Barb. 315; Whitley v. Newman, 70 S.E. 686; Woodville v. Pizatti, 80 So. 491; Winton v. Patterson, 119 So. 161.
It is the rule in Mississippi that "plaintiff suing for slander must allege and prove special damages, unless language complained of is actionable per se."
W.T. Farley v. Bufkin, 132 So. 86; Holliday v. Maryland Cas. Co., 75 So. 765; 1 Encyc. Pl. Pr. 771.
It is our position that the declaration in this cause does not allege special damages.
Newell on Slander and Libel (4 Ed.), page 824; Odgers on Libel and Slander, page 371; Gatley on Law and Practice of Libel and Slander, page 71; Shaw Cleaners Dyers v. Des Moines Dress Club, 86 A.L.R. 839; Holliday v. Maryland Cas. Co., 115 Miss. 56, 75 So. 764.
The only damage which the plaintiff alleged was injury to her feeling, which has been universally held not to constitute special damages.
Newell on Libel Slander; Gatley on Law and Practice of Libel Slander; Ferguson v. Houston Press Co., 1 S.W.2d 387; Clark v. Morrison, 156 P. 429.
Of course, when actions of libel and slander are actionable per se, juries are permitted to enter into the realm of speculation and presume damages and it is hard to establish any rules with respect to such matters. However, special damages must be absolutely certain and capable of estimation in dollars and cents as a pecuniary loss, and not left to the realm of speculation. As stated in the Ohio case, Cleveland Leader v. Nethersole, 95 N.E. 735, juries should not be permitted to return unanimous verdicts just because the plaintiff is a lady, especially where special damages are necessary in order to sustain the action.
Snavely v. Booth, 176 A. 649.
While novelty may not be conclusive against the right to maintain a cause of action, it is persuasive that if there be no precedent such right does not exist.
1 Am. Jur., page 413; Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 59 L.R.A. 478.
The present case is not novel upon the facts. No doubt every law suit has some peculiar circumstances connected with it, but the question of alteration of instruments is a subject as old as written contracts. A definite remedy with thousands of precedents has been established upon the subject.
Heretofore lawyers have been content for their clients to avail themselves of the remedies provided in the cases of alteration of instruments. In the present case, if the allegations of the declaration could be sustained by proof, Mrs. Conroy would have an adequate remedy, in that the entire deed of trust, if it had been materially altered, would be subject to cancellation.
Counsel for the appellant are not content to submit their cause to a court of equity, frequently called "a court of conscience," but insist upon, not the remedy provided for thousands of years for such causes but upon a wholly different remedy. They insist that it is not enough to strike down the altered instrument, but that their client should recover for damage to her reputation, even though her reputation has not been damaged in any manner known to the law, merely because it is asserted that her rights were violated in altering an instrument. While it is a maxim of the common law that wherever the law gives the right or prohibits an injury, it also gives a remedy, the law does not say that wherever a right is violated that it gives any particular remedy to any particular state of facts.
1 Am. Juris. 409.
The mere alteration of an instrument and nothing more does not of itself create right of action for defamation of character. An instrument might be so altered so as to not damage a person's character. The alteration of the instrument might even be helpful to ones character.
We respectfully insist that it is proper that the old and recognized principles of law should govern a right of action and that the appellant, who has alleged a remedy for alteration of instruments, should not be permitted to convert such a remedy into a defamation suit where she can capitalize upon her womanhood and upon her widowhood and thereby appeal, not to the reason, but to the sympathies of a jury, and also where she can appeal to the prejudice of the jury by reason of the fact that the banking corporation holds a lien on her home and on her jewelry.
Appellant has not sustained legal damages.
Argued orally by M.S. McNeil and R.L. Jones, for appellant, and by W.S. Henley, for appellees.
The appellant, who will be referred to as the plaintiff, filed her declaration in the circuit court against the defendants, the principal averments of the declaration, stated as briefly as practicable, being as follows:
That plaintiff, at the time of the wrongs complained of, was a merchant on East Railroad Avenue, in Crystal Springs, and the defendant bank was engaged in the general banking business and the other defendant was the president thereof and handled for and on behalf of the bank all the matters hereinafter mentioned. That in the conduct of her mercantile business the counters, showcases, desks, and the like used therein were not the property of plaintiff but had been loaned to her by three of her friends, namely, Lotterhos Huber Company, G.M. Bratton, and R.B. Thomas; and that at all times the defendants knew that plaintiff did not actually own any mortgagable interest in said property. That plaintiff desired to secure a loan at the bank, and agreed to execute a deed of trust on her homestead for that purpose, together with the pledge by deposit or delivery of certain jewelry. That the only property to be included in said deed of trust, or which was included therein when executed, was the homestead aforesaid; but that after the execution and delivery of the deed of trust, the defendants, without plaintiff's knowledge, consent, or agreement, unlawfully and spuriously inserted in the deed of trust, next following the description of the real estate, the following words: "All furniture and fixtures in store we now occupy on R.R. Ave.," which instrument, so altered the defendants thereupon filed for public record. That thereafter plaintiff was compelled to file a petition in bankruptcy, in which proceeding, defendants filed a sworn claim or statement asserting that plaintiff had executed and delivered to the defendant bank a deed of trust on the said furniture and fixtures.
The declaration avers "that the defendants made demand upon Lotterhos Huber Company, G.M. Bratton, and R.B. Thomas for said property, claiming that the bank held a deed of trust against the same, duly executed and delivered by the plaintiff," and in another paragraph the declaration further avers that the defendants "wrote each of said parties from whom the plaintiff borrowed said property a letter demanding possession of said property, claiming at the time that the defendant bank held a deed of trust against the same."
It will be noted that the allegation in respect to the letters does not include the express assertion that the letters charged that plaintiff had executed the deed of trust; and it might be argued that for all that is alleged as regards the letters, the deed of trust may have been given by some other person than plaintiff. But the allegation in respect to the letters is to be taken in connection with the circumstances of the other quoted allegation in which it is averred that defendants, in making demand on the owners of the property, claimed that the deed of trust had been executed by plaintiff; and even if this claim may be taken as if orally made on an occasion separate from the letters as regards time, nevertheless it operated to make the recipients of the letters to understand that the person to whom the publishers referred in the letters as having given the deed of trust was the plaintiff. "A defamatory communication is made concerning the person to whom its recipient correctly, or mistakenly but reasonably understands it as intended to refer. . . . Extrinsic facts may make it clear that a statement refers to a particular individual although the language used appears to defame nobody. It is not necessary that every one recognize the other as the person intended; it is enough that any recipient of the communication reasonably so understands it." 3 Rest. Torts, Sec. 564 and comment thereunder. Further references to the element of the understanding of the recipients will be made later herein.
And further of the allegations will be later mentioned; but analyzing the declaration at this point and taking all its averments well pleaded as true, which must be done on demurrer, the following is shown: The plaintiff was a merchant, the furniture and fixtures being used in her mercantile business were not her property and were merely loaned to her, which fact was at all times known to the defendants. Plaintiff gave no deed of trust on this property, which fact defendants well knew, and defendants knew, therefore, that they had no valid deed of trust thereon. But the claim made by defendants that they had a deed of trust executed thereon by plaintiff and their demand for possession thereunder comprehended or comprised an assertion by them known by them at the time to be false, that they did have a valid and enforceable deed of trust, and this in turn comprehended or comprised the false assertion, known to the publishers to be false, that plaintiff had been guilty of the deliberate and grossly dishonest conduct hereinafter pointed out.
At common law any written or printed language which tends to injure one's reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem or lower him in the confidence of the community is actionable per se. Hodges v. Cunningham, 160 Miss. 576, 581, 135 So. 215; Wrought Iron Range Co. v. Boltz, 123 Miss. 550, 558, 86 So. 354; and no special damages are necessary to be alleged or shown in order to prevail against a demurrer, or a motion to exclude. 3 Rest. Torts, Sec. 569. The statement of the rule, as set forth in this paragraph, must not be confused with that more precisely applicable to slander or oral defamations, and must, of course, be taken in connection with the further rule, prevailing in this State, that the truth of the matter alleged to be defamatory, whether in slander or in libel, is a good defense. Neely v. Payne, 126 Miss. 854, 89 So. 669; 36 C.J., pp. 1231, 1232, and cases there cited.
The meaning to be ascribed to the publication is that which the recipient would correctly, or mistakenly but reasonably understand as intended to be expressed — provided the recipient did actually understand it in the defamatory sense. And in the foregoing connections account is to be taken of all the circumstances under which the publication was made, so far as these circumstances were known to the recipient. 3 Rest. Torts, Sec. 563. Compare Taylor v. Standard Oil Co., Miss., 186 So. 294.
When the letters aforementioned were received from the defendants, the recipients knew that they, the recipients, and they alone, were the owners of the property, but, of course, did not know what had transpired between the plaintiffs and defendants in respect thereto — as it must be assumed in the absence of any allegation to the contrary. The publishers knew that, under the circumstances set forth, the recipients would naturally and reasonably understand and be informed by said letters that plaintiff had not only executed a deed of trust on the said property, but also in executing the deed of trust on property not owned by her, and in order to give that deed of trust any semblance of validity in defendants' hands, had been guilty of falsely representing to defendants that she owned the property and in such right as to enable defendants to take possession of it on condition broken, or else had not disclosed to defendants the state of the ownership and title to the property so that by force of Section 3352, Code 1930, commonly known as the "business sign statute" the deed of trust thereon would be valid as to encumbrancers thereof without notice; and the declaration sufficiently avers that the recipients, being the friends and neighbors of plaintiff, did actually understand the import of the letters to be as aforesaid, and that the charge so made became generally circulated in the community in which plaintiff lived and became known to all her neighbors throughout that vicinity, to the damage of plaintiff in her previous good name and reputation.
It was not necessary to a cause of action that the letters must have charged, or imputed to, the other party the commission of a specific crime or any crime; nor, as already mentioned, was it necessary to allege and particularly point out any special damages, for which appellees have so earnestly contended. We do not follow out in detail the other several arguments made, inasmuch as we have sufficiently stated the applicable rules in what we have already said. The demurrer to the declaration should have been overruled.
Reversed and remanded.