Opinion
No. 36293.
February 24, 1947. Suggestion of Error Overruled April 14, 1947.
LIBEL AND SLANDER.
In action against plaintiff's former employer and its assistant store manager for slander in charging that plaintiff and two other employees trifled with defendant employer's money with ill intentions, testimony that codefendant acted on information that hidden check had been given to plaintiff or one of such other employees and not to one of two remaining employees was admissible on issue of malice.
SMITH, C.J., and McGEHEE, J., dissenting.
APPEAL from the circuit court of Hinds county. HON. H.B. GILLESPIE, J.
Jackson Young, of Jackson, and Stuart L. Ball and David L. Dickson, both of Chicago, Ill., for appellants.
Plaintiff's cause of action must be based on the slanderous statements specifically alleged in the declaration, and not upon different or additional statements testified to in plaintiff's evidence.
Baldwin Piano Co. v. Jones, 152 Miss. 254, 119 So. 182; C.I.T. Corporation v. Correro, 192 Miss. 522, 6 So.2d 588; W.T. Farley, Inc., v. Bufkin, 159 Miss. 350, 132 So. 86; Scott-Burr Stores Corp. v. Edgar, 181 Miss. 486, 177 So. 766.
A verdict should have been directed for the defendants, since the statements alleged in the declaration and supported by evidence did not charge the plaintiff herself with a wrongful act, but at most asserted that one of three individuals, including the plaintiff, is guilty. Words spoken of a group charging that the group includes one guilty of a wrongful act, but which do not charge that all are guilty and do not single out the plaintiff, are not actionable.
Scott-Burr Stores Corp. v. Edgar, supra; Conroy v. Breland, 185 Miss. 787, 189 So. 814; Harrison v. Thornborough, 10 Mod. 196, 88 Eng. (Rep.) Reprint 691; Forbes v. Johnson, 50 Ky. 48, 11 B. Mon. 48; Giraud v. Beach, 3 E.D. Smith (N.Y.) 337; Grotius v. Ross, 24 Ind. App. 543, 57 N.E. 46; Harris v. Santa Fe Townsite Co., 58 Tex. Civ. App. 506, 125 S.W. 77; Harvey v. Coffin, 5 Blackf. (Ind.) 566; Hays v. American Defense Society, 252 N.Y. 266, 169 N.E. 380; Helmicks v. Stevlingson, 212 Wis. 614, 250 N.W. 402, 91 A.L.R. 1156; Hyatt v. Lindner, 133 La. 614, 63 So. 241, 48 L.R.A. (N.S.) 256; Jones v. Modisette, 151 La. 639, 92 So. 144; Kassowitz v. Sentinel Co., 226 Wis. 468, 277 N.W. 177; Kenworthy v. Journal Co., 117 Mo. App. 327, 93 S.W. 882; Owens v. Clark, 154 Okla. 108, 6 P.2d 755; Rowan v. Gazette Printing Co., 74 Mont. 326, 239 P. 1035; Williams v. Journal Co., 211 Wis. 362, 247 N.W. 435; Zanker v. Lackey, 32 Del. 588, 128 A. 373; Crane v. O'Reilly, 13 N Y Civ. Proc. Rep. 71, 11 N.Y.S. 277; 23 L.R.A. (N.S.) 726, Annotation; 91 A.L.R. 1161, Annotation; 97 A.L.R. 281, Annotation; Restatement of the Law of Torts, Sec. 564; Odgers on Libel and Slander (5 Ed.), p. 147.
The cases relied on in the opinion of the court in the Skinner case do not support the plaintiff on the issue now presented.
Montgomery Ward Co. v. Skinner, 200 Miss. 44, 25 So.2d 572; Crane v. O'Reilly, supra; Forbes v. Johnson, supra; Grotius v. Ross, supra; Hardy v. Williamson, 86 Ga. 551, 12 S.E. 874; Hyatt v. Lindner, supra; Louisville Times Co. v. Emrich, 252 Ky. 210, 66 S.W.2d 73; Restatement of the Law of Torts, Secs. 559, 564, 569, 570, 571.
The trial court committed reversible error in refusing defendants' requested instruction that statements merely naming plaintiff as one of a group including a negligent individual were not slanderous.
Montgomery Ward Co. v. Blakely, 200 Miss. 81, 25 So.2d 585; Montgomery Ward Co. v. Skinner, supra; Harvey v. Coffin, supra.
A verdict should have been directed for the defendants because the necessary allegation of malice was not supported by evidence.
The circumstances under which the alleged slanders were uttered were qualifiedly privileged.
Montgomery Ward Co. v. Skinner, supra; Scott-Burr Stores Corp. v. Edgar, supra; Louisiana Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705, 98 A.L.R. 1296, 1301.
The qualified privilege justified otherwise slanderous statements unless uttered with actual malice.
C.I.T. Corporation v. Correro, supra; Missouri Pacific Transportation Co. v. Beard, 179 Miss. 764, 176 So. 156; Scott-Burr Stores Corp. v. Edgar, supra; Willis v. McCarty-Holman Co., 187 Miss. 381, 193 So. 337; Gust v. Montgomery Ward Co., 229 Mo. App. 371, 80 S.W.2d 286; Kroger Grocery Baking Co. v. Yount, 66 F.2d 700, 92 A.L.R. 1166; 92 A.L.R. 1174, Annotation; Newell on Slander and Libel, Sec. 292.
Unlike the record in the Skinner and Blakely cases, the record in the present case contains uncontradicted evidence of reasonable cause, and is devoid of evidence sufficient to support an inference of actual malice.
Montgomery Ward Co. v. Skinner, supra; Scott-Burr Stores Corp. v. Edgar, supra.
The trial court committed reversible error in overruling defendants' objections to extensive and prejudicial evidence concerning the irrelevant subject of defendants' discharge of, and refusal of recommendations to, plaintiff and the other two clerks; and in sustaining at the same time plaintiff's objections to relevant and competent testimony bearing on the question of lack of malice and justification.
Illinois Cent. R. Co. v. Ely, 83 Miss. 519, 35 So. 873; Great A. P. Tea Co. v. Majure, 176 Miss. 356, 167 So. 637; Yazoo M.V.R. Co. v. Rivers, 93 Miss. 557, 46 So. 705.
The trial court committed reversible error in excluding evidence offered by defendants relating to information received by them justifying a reasonable belief in the responsibility of one of the three sales ladies, of which plaintiff was one.
Bessler Movable Stairway Co. v. Bank of Leakesville, 140 Miss. 537, 106 So. 445; Missouri Pacific Transportation Co. v. Beard, supra.
The court committed reversible error in charging the jury that it might base a verdict for plaintiff on language of the same meaning and import as that in the declaration and without finding wilful and wanton disregard of plaintiff's rights; in assuming that the language spoken was slanderous as per se; and in giving the jury confusing and inconsistent instructions.
Montgomery Ward Co. v. Blakely, supra; Montgomery Ward Co. v. Skinner, supra; Baldwin Piano Co. v. Jones, supra; C.I.T. Corporation v. Correro, supra; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; Missouri Pacific Transportation Co. v. Beard, supra; W.T. Farley, Inc., v. Bufkin, supra; Restatement of the Law of Torts, Secs. 593-596, 604-605, 619.
The verdict was against the great weight of the evidence, and the trial court erred in not granting a new trial for this reason.
This Court can reverse and remand with directions to grant a new trial where there is no substantial evidence in plaintiff's favor, even though it should hold that defendants were not entitled to a peremptory instruction.
Fore v. Alabama V.R. Co., 87 Miss. 211, 39 So. 493; Mobile O.R. Co. v. Bennett, 127 Miss. 413, 90 So. 113; Montgomery Ward Co. v. Windham, 196 Miss. 848, 17 So.2d 208; Code of 1942, Secs. 1537, 1945.
Plaintiff did not produce substantial evidence to support a jury verdict in her favor. There was no substantial evidence that the language applied especially to plaintiff. There was no substantial evidence that bystanders reasonably understood the language as applied especially to plaintiff. There was no substantial evidence of malice.
Louisiana Oil Corp. v. Renno, supra; 98 A.L.R. 1301, annotation.
The damages were grossly excessive. They were clearly caused by an erroneous instruction and by passion and prejudice, and the trial court erred in not granting a new trial for these reasons.
Montgomery Ward Co. v. Blakely, supra; Montgomery Ward Co. v. Skinner, supra; Taggart v. Peterson, 182 Miss. 82, 181 So. 137; Kroger Grocery Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335; 37 C.J. 118.
The Skinner and Blakely cases do not constitute controlling precedents, in view of the different evidence presented and different points argued in the instant case. The present case is not ruled by the decisions in the Skinner and Blakely cases.
Montgomery Ward Co. v. Blakely, supra; Mongomery Ward Co. v. Skinner, supra.
Insofar as the court may have used language in the Skinner case inconsistent with a judgment for defendants here, such language should not be followed.
Brewer v. Browning, 115 Miss. 358, 76 So. 267, 519; Montgomery Ward Co. v. Blakely, supra; Montgomery Ward Co. v. Skinner, supra.
Barnett, Barnett, Jones Stone, of Jackson, for appellee.
There was no variance between the charges in the declaration and appellee's proof.
C.I.T. Corporation v. Correro, 192 Miss. 522, 6 So.2d 588; Baldwin Piano Co. v. Jones, 152 Miss. 254, 119 So. 182; W.T. Farley, Inc., v. Bufkin, 159 Miss. 350, 132 So. 86; Montgomery Ward Co. v. Skinner, 200 Miss. 44, 25 So.2d 572.
The appellee was sufficiently identified as being slandered. Under modern principles of the law of defamation it is immaterial that the defamatory matter refers to a plaintiff as one of several persons alternatively charged or disparaged.
Conroy v. Breland, 185 Miss. 787, 189 So. 814; Harrison v. Thornborough, 10 Mod. 196, 88 Eng. Rep. (Reprint) 691; Le Fanu v. Malcolmson, 1 H.L.C. 636, 9 Eng. Rep. 910; Forbes v. Johnson, 50 Ky. 48, 11 B. Mon. 48; Duviver v. French, 43 C.C.A. 529, 104 F. 278; 33 Am. Jur. 43, Sec. 9; 18 Am. and Eng. Ency. of Law 969; 3 Restatement of the Law of Torts, Sec. 564; Bower, The Law of Actionable Defamation (2 Ed.), Art. 3, p. 11; Gatley, Libel and Slander (3 Ed.), p. 126.
The defamatory matter was employed toward a restricted or determinate group, and, under the particular facts of this case, was so framed as to make defamtory imputations against all members of said group, and therefore each and every member of the group may sue.
Chandler v. Holloway, 4 Port. (Ala.) 17; 23 L.R.A. (N.S.) 732, note; 97 A.L.R. 284, note; 3 Restatement of the Law of Torts, Sec. 564; Odgers, Libel and Slander, (5 Ed.), p. 147; Gatley, Libel and Slander (3 Ed.), p. 123-124.
If the language was not so framed as to defame every one of the entire group, but referred only to one or more of the several members thereof, then an individual member of the group may maintain his action upon establishing the application of the language to himself.
Great A. P. Tea Co. v. Majure, 176 Miss. 356, 167 So. 637; Le Fanu v. Malcolmson, supra; Wisner v. Nichols, 165 Iowa 15, 143 N.W. 1020; Taylor v. Massey, 20 Ont. L. Rep. 429; Boyd v. Healy, 109 Wn. 669, 187 P. 342; 3 Restatement of the Law of Torts, Sec. 564; 36 C.J. 1161, Sec. 26; 23 L.R.A. (N.S.) 732, note; 97 A.L.R. 289, 290, note; Odgers, Libel and Slander (5 Ed.), p. 149; Gatley, Libel and Slander (3 Ed.), p. 125, 126; 33 Am. Jur. 243, Sec. 263.
If the defamatory matter was ambiguous in respect to its application to the plaintiff, it was a question for the jury to determine whether the language applied to the plaintiff.
Rodgers v. Kline, 56 Miss. 808; Jarnigan v. Fleming, 43 Miss. 710; Baker v. Warner, 231 U.S. 588, 58 L.Ed. 384; Peck v. Tribune, 214 U.S. 185, 53 L.Ed. 960; Le Fanu v. Malcolmson, supra; 37 C.J. 105, Sec. 549; 33 Am. Jur., Libel and Slander, Secs. 84, 295; 48 L.R.A. (N.S.) 375, note; 3 Restatement of the Law of Torts, Secs. 564, 613, 614; Odgers, Libel and Slander (5 Ed.), p. 149-150; Newell, Libel and Slander (4 Ed.), Sec. 254; Gatley, Libel and Slander, (3 Ed.), p. 133, 135.
The court did not commit error in refusing any of defendants' instructions or in granting any instructions to appellee.
If there was a qualified privilege it was exceeded and the allegations of malice were clearly proved.
Hines v. Shumaker, 97 Miss. 669, 52 So. 705; Louisiana Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705; Sumner Stores of Mississippi, Inc., v. Little, 187 Miss. 310, 192 So. 857; Kroger Grocery Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335; Reliance Mfg. Co. v. Graham, 181 Miss. 549, 179 So. 341; Alabama V.R. Co. v. Brooks, 69 Miss. 168, 13 So. 847; Newell on Libel and Slander (2 Ed.), Sec. 108; 33 Am. Jur. 124, Sec. 126, p. 178, Sec. 187; 98 A.L.R. 1296.
The damages were not excessive.
Kroger Grocery Baking Co. v. Harpole, supra.
Argued orally by David L. Dickson, for appellants, and by Ross R. Barnett, for appellee.
This case is a sequel to the appeals by the present appellants in the Skinner and Blakely cases, reported respectively in Montgomery Ward Co. v. Skinner, 200 Miss. 44, 25 So.2d 572 and Montgomery Ward Co. v. Blakely, 200 Miss. 81, 25 So.2d 585. These cases involve an alleged slander by the appellants against all three of said plaintiffs, whereby it was charged that "one of the three" had "trifled with the money" of appellant "with ill intentions."
We need not discuss the evidence, which followed the pattern set in the former cases. The views of the several members of the Court upon the matters heretofore assigned as error are consistently maintained. Wherefore, we consider only the assignment that the trial court erred in excluding the testimony, thrice offered, that appellant Burnie was acting in the premises in the light of information that the hidden check had been given to one of the three plaintiffs and not to one of the two remaining employes.
The maker of the check, Mrs. Jones, had explained to Mr. Catchings, one of such employees, that the check had been given to a young woman, thus eliminating all but those from whom Burnie made inquiry and against whom he made the accusation that one of this smaller group had been at fault. This information, communicated to Prenger, the store manager, and Burnie, his assistant, is to be seen not as condemned by the hearsay rule but as a fact whose truth is not as relevant as the right of Burnie to act upon it.
We have heretofore held that the occasion was one of qualified privilege, and therefore the issue of malice becomes predominant. The jury were entitled to consider Burnie's acts and statements in the light of the reasonableness of the explanation afforded by this information. If the jury should believe Burnie acted under reasonable suspicion and was justified in his investigation, the use of intemperate language would not of necessity destroy the privilege. The writer is of the opinion that, regardless of the inapt and undiplomatic, even heartless, manner in which Burnie pursued his investigation, and the accidental presence of third parties who may have overheard the conversation, the status of the occasion as one of qualified privilege rendered such circumstances incidental and without legal effect, as held in Scott-Burr Corporation v. Edgar, 181 Miss. 486, 177 So. 766 and C. I.T. Corporation v. Correro, 192 Miss. 522, 6 So.2d 588. This view is not shared by a majority of the Court and not part of our decision. A majority agree, however, that it was error to exclude this testimony, so closely allied as it is to the narrow issue of malice.
The error of the trial court is reflected also in the granting of plaintiff's second instruction which directed a verdict for plaintiff in the event the charges made by Burnie were untrue or that he "knew or should have known by the exercise of reasonable care that such charges were untrue."
The contention that the instructions did not require that the language proven must be that alleged, and not merely synonymous, is rendered moot by the disclosure that the allegata and probata were in fact identical.
Much testimony was aduced to show the personal reactions of the plaintiff to the accusations, the loss incident to her discharge, and the humiliation incident to her own republication of the charges. It is true that much of this was properly excluded by the trial judge, but only after its impact upon the jury. It is assumed that upon a second trial the risk of a residual prejudice will be avoided by disallowing its introduction.
Reversed and remanded.
The excluded evidence may have been competent but if so its exclusion was about as harmless an error as the court below could have here committed. It would have taken very much more than this evidence to have induced the jury to believe or to seriously think for a moment that Burnie was justified in, or had a good excuse for, using the rude and heartless words spoken by him of and to the appellee, and, therefore, that they were spoken by him innocently, i.e. without malice or ill-will toward the appellee.
The judgment should be affirmed.
I fully concur in the view expressed by the CHIEF JUSTICE in his dissenting opinion herein, and I desire to state further that in my judgment the excluded evidence could not have in anywise affected the question of liability if the jury had been permitted to consider it. If it should be assumed that the defendant Burnie had known for certain that either of the three salesladies in question had placed the money and check under the plaque at the cash register where it was found by one of them and reported, he would have had no right to have accused them alternatively or collectively with having "trifled with the money," and "with ill intentions." The fact that he may have had reasonable cause for eliminating the employees other than these three salesladies would have furnished no basis for the charge above mentioned, in view of the fact that the act of leaving the money and check under the plaque was manifestly a mere act of carelessness on the part of whoever may have placed it there.
I think that the excluded evidence was competent, but I am unable to see how its exclusion could have, or should have, affected the result of the trial.
Sydney Smith, C.J., concurs in this dissent.