Opinion
No. 33064.
March 7, 1938. Suggestion of Error Overruled April 18, 1938.
1. LIBEL AND SLANDER.
Where employer's investigator stated, in presence of foreman and another employee, that plaintiff was fired because she was a thief, occasion was qualifiedly privileged.
2. LIBEL AND SLANDER.
Plaintiff in slander action had burden of proving malice, where occasion on which alleged slanderous words were spoken was qualifiedly privileged.
3. LIBEL AND SLANDER.
Evidence that alleged slanderous words, spoken by employer's investigator in discharging plaintiff, were uttered in presence of foreman and another employee and testimony of investigator, who denied making statement, that there was no ground for his charge that plaintiff was a thief established malice in making of charge.
4. TRIAL.
In slander action based on statement by employer's investigator that plaintiff employee was a thief and was fired, inclusion in instructions of clause "You are fired" did not render them erroneous on ground that they conveyed idea that plaintiff's discharge was an element of damages, where all instructions together informed jury that ground of action was charge that plaintiff was a thief, and not that she had been discharged.
5. LIBEL AND SLANDER.
A considerable difference exists between amount of damages recoverable for a slander which destroys reputation for good character and one failing to seriously and permanently destroy reputation.
6. LIBEL AND SLANDER.
$8,000 to 46 year old married woman with two children for slanderous words spoken by her employer's investigator charging that she was a thief held excessive in the amount of $3,000, where evidence tended to show that woman had a good reputation for honesty and integrity both before and after alleged slander.
APPEAL from the circuit court of Marion county. HON. HARVEY McGEHEE, Judge.
R.D. Ford and Rawls Hathorn, all of columbia, for appellant.
The peremptory instruction requested by appellant should have been given for the reason that the overwhelming weight of the evidence is against the allegations of appellees declaration and said allegations are supported by no reasonably believable evidence.
Williams Yellow Pine Co. v. Henley, 125 So. 552, 155 Miss. 893; Byrd v. State, 123 So. 867, 154 Miss. 742; Brown v. State, 121 So. 297, 153 Miss. 737; M. O.R.R. v. Cox, 121 So. 292, 153 Miss. 597; Lefere v. Krohn, 127 Miss. 305, 90 So. 12.
Appellee's testimony in her case in chief shows conclusively that whatever charge, if any, made by Joe Detman was made as the result of an investigation made at the request of Mr. Graham and that said statement, if made, was made at a conference, requested by appellee, when no persons were present except persons interested in the matters under investigation, and the jury should have been instructed to return a verdict in favor of appellant, because in the absence of actual malice appellant would not be liable for the reason that the occasion was privileged, and this is true even though the statement might have been incidentally overheard by some third person, and since appellee has failed to prove or to offer any evidence tending to prove actual malice.
Flynn v. Reinke, 63 A.L.R. 1113, 225 N.W. 742; Grantham v. Wilkes, 100 So. 673, 135 Miss. 777; Bull v. Collins, 54 S.W.2d 870; Hall v. Rice, 223 N.W. 4; Weinstein v. Rhorer, 42 S.W.2d 892; World Oil Co. v. Hicks, 46 S.W.2d 394; La. Oil Corp. v. Renno, 157 So. 705, 173 Miss. 609; Newell on Libel and Slander (4 Ed.), secs. 345, 346 and 395; Railway Co. v. Brooks, 69 Miss. 168; Wrought Iron Range Co. v. Boltz, 123 Miss. 550; Oakes v. Walker, 154 So. 26; Stewart v. Riley, 172 S.E. 791; Fahr v. Hayes, 21 Vroom 275; Montgomery Ward Co. v. Watson, 55 Fed. 2d 184; Kroger Grocery Baking Co. v. Yount, 66 F.2d 700; New York Porto Rico Steamship Co. v. Garcia, 16 F.2d 734; Gust v. Montgomery Ward Co., 80 S.W.2d 286; Parr v. Warren-Lamb Co. 236 N.W. 291; Walgreen Co. v. Cochran, 61 Fed. 2d 357; Newell on Libel and Slander, (4 Ed.), par. 296; 17 R.C.L. 344, par. 90; Scott Burr Stores Corp. v. Edgar, 177 So. 766; Great Southern Lbr. Co. v. Hamilton, 101 So. 787, 137 Miss. 55; Y. M.V.R.R. Co. v. Woodruff, 53 So. 687, 98 Miss. 36; McMurtry v. R.R. Co., 67 Miss. 601, 7 So. 401; 37 C.J. 58, par. 421.
We submit that there was no proof in the case justifying the submission to the jury for determination of the question as to whether or not the language complained of was heard by others, if spoken. It was the duty of the appellee to have the court inform the jury what was necessary to make out her case. The error is the more damaging when considered with the fact that the trial court refused an instruction asked for by appellant, confining "the third persons present," to persons other than appellee, Mrs. Hargrove, Mr. Detman and Mr. Warren.
McDonough Mtr. Express, Inc. v. Spiers, 176 So. 723; R.R. Co. v. Gonong, 99 Miss. 540; Baldwin v. McKay, 41 Miss. 358; Young v. Power, 41 Miss. 197; Y. M.V.R.R. v. Cornelius, 131 Miss. 37.
An instruction is erroneous when unsupported by any reasonably believable facts or circumstances satisfactorily establishing such facts.
Williams v. City of Gulfport, 141 So. 288, 163 Miss. 336; Gooden v. Gage, 117 So. 881, 151 Miss. 351; G.M. N.R.R. Co. v. Walters, 134 So. 831, 161 Miss. 313; Interstate Life Acc. Co. v. Cooley, 117 So. 267, 150 Miss. 502.
Our courts also hold with uniformity that instructions when they do not embody all the issues involved in the case are erroneous.
Buckwalter v. Wright, 132 So. 447, 159 Miss. 470.
The trial court erred in the giving, at the request of appellee, Instruction No. 5, Instruction No. 6, Instruction No. 7, and Instruction No. 8.
One of the flagrant errors in the four instructions is that each of them tells the jury that it can award plaintiff damages for the discharging of appellee, by appellant. Each of said instructions makes the fact of appellant's discharging appellee an issue to be determined by the jury, and since the question of whether or not appellee was discharged is submitted to the jury by the instructions, the jury would naturally believe that the fact that appellee was discharged was an element of recoverable damage.
The average juror, unversed in legal verbiage, cannot and does not differentiate and make distinctions that one trained in the law and its phraseologies and applications, makes. Nowhere is the jury told in the instructions that the discharging of appellee, if they believe she was discharged, is no element of damages and that such fact could not be taken into consideration in fixing damages.
It cannot be said that a legal duty rested upon appellant to secure an instruction correcting or explaining instructions given appellee and which were erroneous or incorrect.
The jury were not required to go to the declaration, nor elsewhere, except the instructions given by the court, in order to ascertain the grounds relied on by appellee, as a basis of recovery.
Y. M.V.R.R. v. Cornelius, 131 Miss. 37, 95 So. 90.
The trial court erred in authorizing the recovery of punitive damages.
Y. M.V.R.R. Co. v. Mullen, 158 Miss. 774, 131 So. 101; Bounds v. Watts, 159 Miss. 307, 131 So. 159; Miss: Power Co. v. Byrd, 133 So. 193, 160 Miss. 71.
The trial court erred in overruling appellant's motion to set aside the verdict and grant a new trial not only for the many errors set up in said motion but for the additional reason that the damage awarded was grossly excessive and evidenced passion, prejudice or caprice.
Miss. Central v. Smith, 159 So. 562; 37 C.J. 128; N.O. G.N.R.R. Co. v. Frazer, 158 Miss. 407, 130 So. 493; Cointment v. Cropper, 41 La. Ann. 303; Fitzgerald v. Boulat, 13 La. Ann. 116; Howard v. Grover, 28 Me. 97, 48 Am. Dec. 478; Snow v. Weeks, 77 Me. 429; Phelps v. Cogswell, 70 Cal. 201; Allen v. Craig, 13 N.J.L. 294; Steadman v. Venning, 22 N.B. 639; Dancey v. Grand Trunk R.R. Co. of Canada, 19 Ont. App. Rep. 664; Belt v. Lowes, L.R., 12 Q.B. Div. 356; Higgens v. Walker, 17 Con. S.C. 225; 8 R.C.L. 674.
Conner Hammond and T.B. Davis, all of Columbia, for appellee.
When we boil down the brief of counsel for the appellant we will find that after all practically the entire brief is based on the proposition that the communication, or rather words uttered, were privileged, and after all each point comes back to that proposition but we answer that by saying, first, under no circumstances would this difference be a defense; second, that if it could be a defense it was such defense as was necessary to plead; and third, that it would be inconsistent to deny the utterance of these words and at the same time say they were privileged; fourth, the testimony offered along this line was offered by the appellant and admitted over the objection of the appellee.
Y. M.V.R.R. Co. v. Watson, 104 Miss. 672, 61 So. 657; Tittle v. Bonner, 53 Miss. 578; Grant v. Smith, 125 So. 393; Reeder v. Pace, 171 So. 113; Hess v. Sparks, 21 A.S.R. 300; Gudger v. Penland, 23 A.S.R. 73; 19 R.C.L. 399, par. 156.
One who denies writing the letter alleged to be libelous cannot, upon the trial justify on the grounds of privilege.
Hyatt v. Lynder, 48 L.R.A. (N.S.) 256, 63 So. 241; Sec. 536, Code of 1930; Lumber Co. v. Rather, 111 Miss. 55; Railroad Co. v. Grant, 86 Miss. 565, 38 So. 502; Herndon v. Henderson, 41 Miss. 584; Orgill Bros. Co. v. Polk, 155 Miss. 492, 124 So. 649; Bessler Co. v. Bank Co., 140 Miss. 537, 106 So. 445.
Counsel state, or rather cite some authorities where the Supreme Court reversed cases on the facts, but none of those cases are applicable to the case at bar and this case comes under no rule announced in those cases.
The court is too familiar with the law on this question for us to cite any further authority or make any further comment except to say that the question as to whether or not Mr. Detman called Mrs. Graham a thief was testified to by two witnesses, neither of whose character or reputation was attacked and we challenge the record as to whether or not there is anything therein contained which makes this testimony unworthy of belief. There is none, no, not one sentence, word or letter which throws suspicion upon these witnesses. A jury of twelve good and lawful men heard all of this evidence and carefully considered the questions presented to them unbiased and unprejudiced so far as we know, and determined that Detman uttered these words as related by Mrs. Graham and there is no reason why their judgment should be peremptorily set aside and held for naught.
The words spoken were actionable per se and carried with them the presumption of malice.
Kroger Grocery Baking Co. v. Harpole, 166 So. 335; N.O.G.N.R.R. Co. v. Frazier, 130 So. 493; Valley Dry Goods Co. v. Buford, 75 So. 252.
As to qualified or unqualified communications the question is for the court on a given state of facts if the facts are undisputed the court decides the question and if the facts are disputed, it is a question for the jury.
La. Oil Corp. v. Renno, 157 So. 705; Newell on Slander and Libel (4 Ed.), sections 345-46 and 397; Great Atlantic Pacific Tea Co. v. Majure, 167 So. 637; Bufkin v. Farley, 159 Miss. 350, 132 So. 86; Hinds v. Shoemaker, 97 Miss. 669.
Malice in uttering libelous words which are actionable per se is presumed as a matter of law.
Johnson v. Finance Acceptance Co. of Georgia, 150 So. 364; Hodge v. Cunningham, 135 So. 215, 160 Miss. 576; Railroad Co. v. Brooks, 69 Miss. 168.
When a publication charges an indictable offense, and is libelous per se the presumption of innocence of the crime charged is prima facie evidence of the falsity, want of probable cause and malice of the publication and sufficient to put the defendant to proof of the facts that the publication was privileged.
Conroy v. Pittsburg Times, 23 A.S.R. 188; 36 C.J. 1242, 1245, par. 208.
Nowhere do any of the instructions suggest that the fact that the plaintiff may have been fired would warrant them in returning a verdict for the plaintiff, or in any way increasing her damages.
In the case at bar there is no evidence that this verdict was prompted by passion, prejudice, or corruption.
Under statute relating to actionable words, jury, within reasonable bounds, is sole judge of damage sustained.
Landrum v. Ellington, 120 So. 444, 152 Miss. 569.
Where allegedly slanderous statement is provoked by malice, proof of actual damages is not necessary, and amount thereof rests in sound discretion of jury, unless prompted by passion, prejudice or corruption.
Kroger Grocery and Baking Co. v. Harpole, 166 So. 335.
In view of the facts in this case and of the verdicts which have been allowed to stand by this court in other cases, we are bound to reach the conclusion that the verdict rendered in this case cannot be excessive and should stand.
Argued orally by C.V. Hathorn, for appellant and by T.B. Davis and Kelly J. Hammond for appellee.
Appellee brought this action in the circuit court of Marion county against appellant to recover damages for an alleged slander uttered by Joseph Detman, appellant's superintendent and general manager. There was a verdict and judgment in the sum of $8,000, from which appellant prosecutes this appeal.
Appellant is a garment manufacturing company employing something like 700 women, among the employees were appellee, Mrs. Hargrove, and Mrs. Warren; the foreman of the floor on which they were engaged about their work was one Warren. There was ill feeling between Mrs. Hargrove and Mrs. Warren. The evidence tended to show that Mrs. Hargrove had threatened to stab Mrs. Warren with a pair of scissors, and that in some way appellee was connected with this trouble. Detman, for appellant, was investigating this matter and had before him appellee, Mrs. Hargrove, and Warren, the foreman. Mrs. Hargrove had already been discharged by Detman. Appellee and Mrs. Hargrove both testified that Detman turned to appellee and made this statement: "It has been reported to me by half a dozen people or more that you have been stealing. We are not going to have anything like that going on here; you are a dangerous character and a thief; you are fired," to which appellee replied: "So, I am fired for stealing, am I," and Detman said, "Yes." Detman and Warren both testified that no such statement was made by Detman, that he neither charged appellee with being a thief directly or indirectly, nor did he discharge her; on the contrary, that she quit her job voluntarily. Detman testified further that he knew nothing detrimental to appellee's character, and, on the contrary, that "to this day we can give her a clear cut recommendation on that score" (stealing).
Appellant contends that the court erred in refusing its request for a directed verdict upon the ground that the occasion on which the language in question was spoken was qualifiedly privileged and no actual malice was proven, and that the burden of proving such malice was upon appellee. It is true that the occasion was qualifiedly privileged, and that the burden of proving malice was upon appellee, Louisiana Oil Corporation v. Renno, 173 Miss. 609, 157 So. 705; Gardner v. Standard Oil Co., Miss., 175 So. 203; Missouri Pacific Transportation Co. v. Beard, Miss., 176 So. 156; however, that burden was fully met not only by the surrounding facts and circumstances, but by the positive testimony of Detman himself, who admitted that there was no ground for any such charge against appellee, after denying that he made the statement. It follows, therefore, that if he used the language, as the jury found he did, it was without foundation and malicious, Louisiana Oil Corporation v. Renno, supra. Furthermore, the fact that the language was uttered in the presence of Warren and Mrs. Hargrove, who had no connection with the charge, was an unnecessary publication tending to show malice.
In some of the instructions given the appellee, the slanderous language was used, including the clause: "You are fired." Appellant argues that these instructions were erroneous because they conveyed the idea to the jury that being discharged was an element of damages. The contention is without merit. Taking all the instructions together, the jury were informed in unmistakable language that the ground of the action was the charge that the appellee was a thief and not that she had been discharged. The jury could not have been confused in this respect.
Appellant complains of the giving of other instructions for appellee and the refusal of certain instructions requested by it. We have carefully considered these alleged errors and find them without any substantial foundation. If errors there were, they were harmless. We do not set out and discuss the given and refused instructions complained of because we are of the opinion that to do so would be of little or no benefit as a precedent to the bench and bar.
One of the grounds of the motion for a new trial was that the verdict was excessive. Appellee is forty-six years old, is married and has two children. As stated, the verdict was for $8,000. The evidence tended to show that appellee had a good reputation for honesty and integrity both before and after the alleged slander. As above stated, appellant's superintendent Detman so testified. It therefore appears that appellee's good reputation was not entirely destroyed by the alleged slander. There is a considerable difference between the amount of damages a person is entitled to recover for a slander that is not effective in destroying his reputation for good character and one that does seriously and permanently injure or destroy such reputation. New Orleans Railroad Co. v. Frazer, 158 Miss. 407, 130 So. 493. In that case the judgment was reduced from $7,500 to $3,750. We are of the opinion that this case comes within the principles laid down in that case covering the award of damages. We think the record in this case demonstrates that the jury in awarding damages treated appellee's good reputation as having been completely destroyed. We think the verdict is manifestly excessive — that $5,000 would have been an ample award. Unless appellee enters a remittitur to the extent of $3000, the judgment will be reversed and the cause remanded for trial on the issue of damages alone, otherwise affirmed.
Affirmed with remittitur.