The defendant was entitled to a peremptory instruction because the alleged slander was uttered on a qualifiedly privileged occasion and there was no showing of actual malice on the part of this defendant. Reliance Mfg. Co. v. Graham, 181 Miss. 549, 179 So. 341; La. Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705; Scott-Burr Stores v. Edgar, 181 Miss. 486, 177 So. 766, 165 So. 623; Mo. Pac. Trans. Co. v. Beard, 179 Miss. 764, 176 So. 156; Great A. P. Tea Co. v. Majure, 176 Miss. 356, 167 So. 637, 168 So. 468; I.C.R.R. Co. v. Wales, 177 Miss. 875, 171 So. 536; Gardner v. Standard Oil Co., 179 Miss. 176, 175 So. 203; Kroger Grocery Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335. Malice is distinguishable from negligence in that it arises from some purpose, while negligence arises from the absence of purpose.
But if it be held that a qualified privilege existed, the privilege was exceeded. Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 252; Louisiana Oil Corporation v. Renno, 173 Miss. 609, 157 So. 705; The Great Atlantic Pacific Tea Co. v. Majure, 176 Miss. 356, 167 So. 637; Reliance Mfg. Co. v. Graham, 181 Miss. 549, 179 So. 341; Grantham v. Wilkes, 135 Miss. 777, 100 So. 673; Scott-Burr Stores Corporation v. Edgar, supra; Switzer v. American Ry. Express Co., 119 S.C. 237, 112 S.E. 110, 26 A.L.R. 819. Punitive damages were allowable and the verdict was not excessive.
V. Malice in fact was established in this case. Kroger Grocery Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335; Reliance Manufacturing Co. v. Graham, 181 Miss. 549, 179 So. 341; Scott-Burr Stores Corp. v. Edgar, 181 Miss. 486, 177 So. 766. VI. Since the jury was warranted in finding that appellee was defamed maliciously, an award of punitive damages was proper.
Even if the appellant were not entitled to judgment as a matter of law, and even if the instructions were not erroneous so as to require reversal, still the cause should be reversed because the verdict was excessive. Reliance Mfg. Co. v. Graham, 181 Miss. 549, 179 So. 341; Wells v. Branscome, 222 Miss. 1, 74 So.2d 743. Howard L. Patterson, Jr., Francis T. Zachary, Hattiesburg, for appellee.
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.
1967), Mrs. Garner, a customer in the drug store, was accused by the appellant there of taking a bar of soap. A verdict of eight thousand dollars ($8,000) was held not to be excessive. See also Sumner Stores of Mississippi v. Little, 187 Miss. 310, 192 So. 857 (1940); Reliance Manufacturing Co. v. Graham, 181 Miss. 549, 179 So. 341 (1938); and Kroger Grocery and Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335 (1936), where verdicts for slander (theft) were held not to be excessive. After examining the evidence with reference to damages sustained by the appellee, we cannot say that the trial judge manifestly abused his discretion in overruling the motion for a new trial on the issue of damages only and in declining to enter a remittitur.
V. Malice in fact was established in this case. Kroger Grocery Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335; Reliance Manufacturing Co. v. Graham, 181 Miss. 549, 179 So. 341; Scott-Burr Stores Corp. v. Edgar, 181 Miss. 486, 177 So. 766. VI. Since the jury was warranted in finding that appellee was defamed maliciously, an award of punitive damages was proper.
XI. The amount of the verdict was excessive and demonstrated prejudice on the part of the jury; and on the issue of damages, the Court erred in instructing the jury that the law implied or presumed a malicious intent. Gulf, M. N. RR. Co. v. Graham, 151 Miss. 351, 117 So. 881; Hines v. Shumaker, 97 Miss. 669, 52 So. 705; Interstate Co. v. Garnett, 154 Miss. 325, 122 So. 373; Krebs v. McNeal, 222 Miss. 560, 76 So.2d 693; Kroger Groc. Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335; Landrum v. Ellington, 152 Miss. 569, 120 So. 444; Montgomery Ward Co. v. Blakely, 200 Miss. 81, 25 So.2d 585; Montgomery Ward Co. v. Harland, supra; Montgomery Ward Co. v. Skinner, supra; Natchez Times Publishing Co. v. Dunigan, supra; New Orleans Great Northern RR. Co. v. Frazer, 158 Miss. 407, 130 So. 493; Reliance Mfg. Co. v. Graham, 181 Miss. 549, 179 So. 341; Scott-Burr Stores Corp. v. Edgar, supra; Sumner Stores v. Little, 187 Miss. 696, 192 So. 857; Sec. 13, Constitution 1890; Vol. II, Alexander's Miss. Jury Instructions, Sec. 3761. King King, Durant, for appellee.
Cited and discussed the following: Fraizier v. McCloskey, 60 N.Y. 337, 19 Am. Rep. 193; Ferriday v. Selser, 4 How. 506, 519; Interstate Co. v. Garnett, 154 Miss. 326, 122 So. 373; Kroger Groc. Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335, 339-340; Louisiana Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705; McGowan v. The State, 9 Yerger 184; Montgomery Ward Co. v. Skinner, 200 Miss. 44, 25 So.2d 572; Reliance Manufacturing Co. v. Graham, 81 Miss. 549, 179 So. 341; Scott-Burr Stores Corp. v. Edgar, 181 Miss. 486, 177 So. 766; Sumner Stores of Miss. v. Little, 187 Miss. 310, 192 So. 857; Sec. 1526, Code 1942; 12 A.L.R. 1026; 86 A.L.R. 1297; 33 Am. Jur., Sec. 269 p. 253; Newell on Slander and Libel, 4th Ed., Sec. 287. KYLE, J.
" See also: Hall v. Rice, 117 Neb. 813, 223 N.W. 4, 78 A.L.R. 1421; McKenna v. Mansfield Leland Hotel Co., 55 Ohio App. 163, 9 N.E.2d 166; Campbell v. Willmark Service System, Inc., 3 Cir., 123 F.2d 204; Reliance Mfg. Co. v. Graham, 181 Miss. 549, 179 So. 341; Johnson v. Rudolph Wurlitzer Co., 197 Wis. 432, 222 N.W. 451; and Hearn v. Ostrander, 194 N.C. 753, 140 S.E. 724. From the foregoing discussion of the facts and the law, it is plain that the questioning was done under conditional privilege.