Opinion
No. 30861.
December 11, 1933.
1. LIBEL AND SLANDER.
Statement by picture theater usher to policemen, "These are the boys that slipped in," held libelous per se as charging general dishonesty.
2. ARREST.
Arrest of patrons in picture theater on usher's statement that they had slipped in without tickets held unlawful because made without warrant and for misdemeanors not committed in officers' presence.
3. ARREST.
At common law, arrest can be made without warrant only where felony has been committed and there is probable cause to believe that person arrested committed felony, where misdemeanor is committed in officers' presence, or where crime is threatened which will amount to felony.
4. ARREST.
Arrest is committed in "presence" or "view" of officer, within rule authorizing arrest without warrant, when officer sees act constituting it, though at distance, or hears disturbance created thereby and proceeds at once to scene, or if offense is continuing, or has not been fully consummated when arrest is made.
5. MASTER AND SERVANT.
Usher, in pointing out to policemen plaintiffs as boys who had slipped into theater without tickets, was acting within scope of employment, where assistant manager directed doorman to call policemen, and doorman directed usher to point out persons to officers.
APPEAL from Circuit Court of Hinds County.
Watkins Eager, of Jackson, for appellant.
The usher, even if the words charged were uttered, was not acting within the scope of the employment of the master, but at the express request, direction and solicitation of officer Wall of the police department.
Rivers v. Yazoo Miss. R.R. Co., 90 Miss. 196, 213, 43 So. 471, 9 L.R.A. (N.S.) 931; Doherty v. L.B. Price Mercantile Co., 132 Miss. 39, 51, 95 So. 790; Great A. P. Co. v. Compton, 164 Miss. 553, 145 So. 105; Craft v. Magnolia Stores Co., 161 Miss. 756, 138 So. 405; Boyd case, 141 Miss. 593, 107 So. 1, 2.
The language charged to have been used by the usher is not slanderous per se, and the learned trial court erred in instructing the jury that such language was slanderous per se.
W.T. Farley, Inc. et al. v. Bufkin, 159 Miss. 350, 132 So. 86; Sleight v. Woods, 260 N.Y.S. 825, 145 Misc. 824; 17 R.C.L., p. 263, par. 3; Perkins v. Welch, 57 S.W.2d 914.
An oral charge of cheating dishonesty, or lying, though false, is not slanderous per se.
Skillern v. Brookshire et al., 58 S.W.2d 544, 547; Woodville v. Pizatti, 119 Miss. 85, 91, 80 So. 491.
The learned trial court erred in giving the instruction on behalf of appellees, as follows: "The court instructs the jury for the plaintiff that the words complained of, if spoken, were slanderous per se and that no special damage must be proven by the plaintiffs to entitle them to recover at your hands because when one is slandered and the slanderous words are spoken or slanderous per se the law presumes that damages directly and proximately flows from the false speaking of the words."
The words alleged to have been used were not slanderous per se, and it was necessary therefore to both allege and prove special damage, and, furthermore, the use of the words must have been at a time when the speaker was engaged in and about the master's business.
Chalmers Potter, of Jackson, for appellees.
The usher was acting within the scope of his employment.
21 R.C.L. 853; 2 C.J. 578.
The language complained of was slanderous per se.
Pizatti case, 80 So. 491, 119 Miss. 85; 17 R.C.L. 265; 26 C.J. 1193; In re Bortos, 13 F.2d 138; Holliday v. Holliday, 55 S.E. 191, 7 L.R.A. (N.S.) 272.
The Supreme Court of Kansas states that: "turpitude" in its ordinary sense involves the idea of inherent baseness or vileness, shameful, wickedness or depravity. . . . In its legal sense it includes everything done contrary to justice, honesty, modesty or good morals.
Hughey v. Bradrick, 177 N.E. 911.
"Infamous" is defined as shameful or disgraceful punishment for violating liquor laws by confinement in the penitentiary or imprisonment in county jail is "infamous;" and words imputing charge so punishable are actionable per se.
Stevens v. Wilber, 300 P. 329; Farley v. Winn, 109 N.W. 683; Gray v. Bennett, 33 Wis. 444; Wilcox v. Edwards, 5 Ind. 183; 36 C.J. 1195.
Under the rules laid down even in the Bufkin case the words complained of were actionable because they charged the plaintiffs with an offense both involving moral turpitude and subjecting him to infamous punishment.
26 C.J. 1161 and 1162; Lewis v. Black, 27 Miss. 425, 431.
Where the defamatory words were spoken to an officer of the law who was called to the scene for the purpose of dealing with the persons who had slipped in, they were spoken under such circumstances that the direct and proximate result of the false speaking of the words were that the party against whom the false charge was made would probably be arrested.
Jarnigan v. Flemming, 43 Miss. 710.
Raymond Wicks, Tommie Day, and Lucian Branch brought suit in the circuit court of Hinds county against Kennington-Saenger, Inc., for damages growing out of slanderous language and false arrest.
The transactions were the same, but separate suits were filed, which were tried together.
Kennington-Saenger, Inc., is a picture show in the city of Jackson, and on November 6, 1932, said Raymond Wicks, Tommie Day, and Lucian Branch, in company with Tom Davis and Miss Davis, his sister, and aunt of Raymond Wicks, purchased tickets and entered the picture show and were seated enjoying the picture, when two policemen of the city of Jackson, accompanied by appellant's employee, came into the show where appellees were seated, and, in the presence and hearing of others, appellant's employee said to the policemen, "These are the boys that slipped in." The policemen demanded that they show stubs, which they were unable to do, because stubs had not been given to them. One of the policemen then told the appellees to come on out, which they refused to do, and the policeman then took one of them by the shoulder saying: "Get up, we are officers of the law. Get up and get out of here." The three appellees got up and went to the foyer of the picture show with the policemen, where they were interrogated, and the policemen said they were tired of boys crashing the gate and they were going to put a stop to it.
According to the appellees' (the plaintiffs') evidence, quite a number of persons heard the policeman talking; that the appellees were kept from seven to ten minutes, and finally Tom Davis and Miss Davis came out, and Tom Davis said, "You have the wrong boys," and informed the policemen that he had procured tickets, and about that time the assistant manager came up and told the policemen they had the wrong boys; that he remembered five persons coming in together, which was unusual; that, at the time, he had been relieving the doorman for a few minutes and remembered when they came in. Thereupon, the policemen told them they might return to the show.
It appears from the evidence that some one had run over the doorman or crashed the entrance without paying or producing tickets; that the doorman called the assistant manager and told him what had occurred; that the assistant manager, at that time, was engaged in rendering assistant to some lady who had fainted, and told the doorman to call "the law," whereupon the doorman called the policemen and told them what had happened, and the policemen asked the doorman if he could identify the parties; the doorman said he could not, but that probably one of the ushers could; that the usher then conducted the policemen to the portion of the theater where the appellees were seated, using the language above quoted, according to the appellees, but, according to the usher he stated merely that he thought these were the boys.
The policemen did not have any warrant for the arrest of these boys, and no affidavit was made authorizing the arrest, or the search of the building for, these boys.
The court below instructed the jury that the language used, as set forth in the declaration, was libelous per se, and refused an instruction for the appellant that such language was not libelous per se.
We think the language used clearly indicated general dishonesty on the part of the appellees, and to charge one with dishonesty is libelous per se. Hines v. Shumaker, 97 Miss. 669, 52 So. 705. Furthermore, the facts disclosed by the record show that the arrest was unlawful. As above stated, the officers had no warrant, and were acting beyond the authority of the law, at the instance of the appellant, the Kennington-Saenger, Inc.
Under the common law, an arrest could be made without a warrant only in specific cases, as where a felony had been committed, and where there was probable cause to believe that the person arrested had committed a felony, and in misdemeanors where there was a breach of the peace committed in the presence of the officers, or a crime threatened which would amount to a felony. No arrest could be made for misdemeanors not committed or threatened in the presence of the officers without a warrant, and the warrant could not be made without an affidavit therefor. Mississippi Law Journal, vol. 3, p. 82; 5 C.J., secs. 42, 45, p. 416, in which latter work it is said:
"What constitutes presence or view. An offense is committed in the presence or view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the acts constituting it, although at a distance, view of such acts as constitute reasonable grounds for arrest being sufficient. An offense is likewise deemed committed in the presence of the officer when he hears the disturbance created thereby and proceeds at once to the scene, or where the offense is continuing, or has not been fully consummated, at the time the arrest is made. He must, however, have direct personal knowledge, through sense of sight or hearing, that the offense is the act of the accused."
There must be an actual commission of an offense in cases of misdemeanors; and, in cases of felonies, there must be cause to believe that the accused is guilty.
It is argued that the usher, in pointing out the appellees, was not acting within the scope of his employment, and that his act is not attributable to the master. It is admitted that the assistant manager directed the doorman to call the policemen, and that the doorman had authority to prevent persons entering without tickets or paying to enter, and that he had requested the usher to point out to the officers the parties. The usher was acting for the master, having been directed by his superior in the matter; and the presence of the officers had been procured by the assistant manager, and what the officers did was not authorized by law, but was at the instance of the appellant.
The judgment will therefore be affirmed.
Affirmed.