Opinion
No. 27283.
January 14, 1929.
1. LIBEL AND SLANDER. Truth of statement is defense to slander action.
Truth of the alleged defamatory statement, being pleaded and established by preponderance of evidence, is a complete defense to action for slander.
2. LIBEL AND SLANDER. Testimony of vendor of plaintiff in slander action held immaterial on issue of plaintiff having falsely and knowingly testified boundary fence was moved.
Slander being based on defendant's statement that plaintiff, in a boundary line action between them, falsely testified, with knowledge of the falsity, that defendant had moved the boundary fence, testimony of defendant's vendor that she did not know where the fence was located, or whether it had been moved, threw no light on the issue, so that there was no error in its exclusion.
3. APPEAL AND ERROR. Exclusion of testimony held not prejudicial, in view of other testimony and admission by other party.
Exclusion of plaintiff's testimony as to statement by defendant, even if error, was not prejudicial; defendant admitting that he made the statement, and another witness testifying that it was made in his presence.
4. APPEAL AND ERROR. Exclusion of evidence as to element of damages was harmless under jury finding.
The jury having found there was no liability for any damage, plaintiff was not prejudiced by exclusion of evidence as to a certain element of damages.
5. TRIAL. Notwithstanding instructions are subject to criticism, there is no reversible error when all instructions, considered together, fairly present applicable law.
Even though certain instructions, considered separate and apart from the other instructions, might be considered inaccurate and misleading, yet where all the instructions in the case, both for plaintiff and defendant, when considered together, as they must be, one as supplementing or modifying another, present the applicable law fully and fairly, there is no reversible error.
APPEAL from circuit court of Alcorn county; HON.C.P. LONG, Judge.
Ely B. Mitchell, for appellant.
It is admitted that the fence was located some twenty-four feet north of the north boundary line of Block two hundred forty at the time of the trial of the case in the chancery court, when it is alleged that Rev. Bass swore lies and committed perjury. Before the appellant could show that the fence had been moved he had to show that it was originally along the north boundary line of Block two hundred forty, so he could show that later it had been moved north some twenty-four feet. The testimony of Mrs. Morrison does not show that she knew the fence had been moved, but her evidence does show that she knew where the fence was located at the time she sold her property to Mr. Bass. This evidence was excluded over the objection of the appellant.
T.F. Burnett, just before the trial of the case, in the Drug Store of Dr. J.A. Borroum, said to the plaintiff; "If you swear the fence has been moved you will swear a lie." Mr. Burnett admitted he used this language at this particular place in the presence of the appellant, yet the court refused to allow the plaintiff to testify as to this fact. "Any other words written or spoken by the defendant of the plaintiff either before or after those sued on, or even after the commencement of the action, are admissible to show the animus of the defendant; and for this purpose it makes no difference whether the words tendered in evidence be themselves actionable or not, or whether they be addressed to the same party as the words sued on, or to someone else. Such other words need not be connected with or refer to the defamatory matter sued on, provided they in any way tend to show malice in defendant's mind at the time of publication." Newell, Slander Libel (3 Ed.), 405.
The court held that mental suffering or mental anguish was not an element of damages in this case. In other words, the court held because there was no personal injury in the case that mental anguish was not an element of damage in the case. "According to the great weight of authorities the plaintiff may in an action for libel and slander recover damages for the mental suffering inflicted on him by the words of the defendant, particularly if they are actionable per se." 17 R.C.L. 435, sec. 192; See, also, 37 C.J., sec. 568, page 117; Osborn v. Leitch, 135 N.C. 628, 66 L.R.A. 645; 18 Am. Enc. Law (2 Ed.), p. 1082.
The fourth instruction for the defendant is erroneous in that it starts out by giving a definition of malice and in the latter part of the instruction states: "That he committed no wrongful act towards the plaintiff when he so stated he was justified in making the statement, then you will find for the defendant." The law presumes that when Burnett made the statement toward the plaintiff he intended to injure and damage him, yet, this instruction says, that he committed no wrongful act towards the plaintiff when he made these statements.
The fifth instruction of the defendant is not a correct enunciation of the law because it is not a complete statement. If this charge had stated that this evidence was only admitted for the purpose of showing malice, it would have complied with the law, but as it stands it does not.
W.C. Sweat, for appellee.
The question to be determined was whether the fence had been moved or not. On this plea, of course, the appellee assumed the burden of establishing the truthfulness of these statements by a preponderance of the evidence, to the satisfaction of the jury, when there is no liability. On the other hand, if the appellee failed to establish the truthfulness of his statements by a preponderance of the evidence, then the plaintiff was entitled to a verdict; and the question of how much damages was, of course, a question for the jury to determine under the evidence. The jury, by its verdict, under proper instructions from the court, decided that the appellee had proven the truthfulness of his statements by a preponderance of the evidence and that the appellant was entitled to recover nothing at all. It is universally held that, in a common-law action for slander, the truthfulness of the words alleged to have been spoken is a complete defense; and our court is in line with the other courts of the country in this respect. 17 R.C.L., p. 325; 36 C.J., p. 1231; Neely v. Payne, 126 Miss. 854, 89 So. 669; Jarnigan v. Fleming, 43 Miss. 721.
Appellant contends that the court below committed error in excluding mental suffering as an element of damages. If we concede for the sake of argument that this was error in the court below, it can avail the appellant nothing for the reason that it would have been important only in the event liability had been established against the defendant. Since the jury decided that there is no liability on the part of the appellee, the question of whether or not mental suffering should have been admitted on the question of appellant's damages could obviously not have effected the question.
Appellant complains of the fourth and fifth instructions granted to the defendant. The fourth instruction is a clear definition of malice in its general sense, and states clearly and concisely the right of the defendant to prove by a preponderance of the testimony that his statements were the truth, and that, if he had so proven them, then the jury should find in his favor. This court has held time and again that: "All instructions given in a case, both for the plaintiff and defendant, are to be considered together as one instruction. They are to be interpreted as a whole and, when so viewed, if they embody the law applicable to the case, there is no error, although some one or more instructions, taken alone, are incompetent. Haynes-Walker Lbr. Co. v. Hankins, 141 Miss. 55; Gipson v. Wineman Son, 141 Miss. 573, 106 So. 826; Mutual Life Insurance Co. v. Vaughn, 125 Miss. 369, 88 So. 11.
W.D. Bass, appellant, sued T.F. Burnett, appellee, for damages for alleged slander; and there was a verdict and judgment for the defendant, from which this appeal was prosecuted.
The declaration was in two counts, the charges of each being practically the same and substantially as follows: That on or about the 9th day of June, 1927, there was pending in the chancery court of Alcorn county a cause styled " T.F. Burnett v. W.D. Bass et al.," and the appellant was sworn as a witness and gave evidence in said cause at the trial thereof before the chancellor; that the proper location of a certain fence on or near the north side of block 240 of West Corinth, Miss., was in controversy in said cause; that said appellant, as a witness in said cause, testified that said fence had been moved north some twenty-four feet, which said statement was the truth and known to be the truth by the appellee; that thereafter the appellee, Burnett, maliciously intending to injure the appellant in his good name, credit, and reputation, and discredit his work as a minister of the gospel, and to bring him into public disgrace among his friends and acquaintances, on different occasions, and in the presence and hearing of divers persons, falsely and maliciously spoke and published of and concerning the appellant the false, slanderous, malicious, and defamatory statement that he, the appellant, had sworn lies when he swore that said fence had been moved; and that said appellant swore falsely as a witness in said chancery suit, meaning and intending thereby to charge that the appellant as a witness in said chancery cause swore falsely therein.
In response to a motion to require the appellant to file a bill of particulars specifying when the alleged slanderous words were spoken, the place where they were spoken, and the person or persons present when they were spoken, the appellant filed a bill of particulars setting forth the information thereby required.
To this declaration, the defendant, appellee herein, filed a plea of the general issue and a special plea averring that at the trial of the cause in the chancery court, which was referred to in the appellant's declaration, the appellant and other witnesses testified that the appellee had moved a certain fence about twenty-four feet; that appellee, his wife, and other witnesses testified that said fence had not been moved by him, thereby squarely presenting an issue as to whether the fence had been moved; that, as a matter of fact, the fence had not been moved, and, knowing this to be true, he had made the statement that those who testified that the fence had been moved testified falsely, or words to that effect; and that in making such statement the appellee did so in good faith and with no purpose to injure any one, and without malice, and in defense of the testimony that had been given by himself, his wife, and other witnesses, which was, in fact, true.
The appellee filed a second special plea, in which it was averred that the words alleged to have been spoken by him, as set out in the declaration, were, in fact, the truth; that the fence had not been removed by the appellee, as the appellant had testified; and that it was known to the appellant at the time he so testified that the said fense had not in fact been moved by him.
Upon the issue thus presented by the pleas of justification on the ground of the truth of the alleged defamatory matter, the court below properly limited the evidence to the determination of the question of whether the fence in question had in fact, been moved at the time of the trial of the former chancery suit; or, in other words, to the determination of the question as to whether the appellant knowingly testified falsely when he testified in that trial that the appellee had moved the fence about twenty-four feet north from where it had been placed, and where it properly belonged. Upon this issue the appellant offered a number of witnesses to establish the fact that the fence had in fact been moved by the appellee, as testified to by him in the chancery court trial; and that when he so testified he spoke the truth. The appellee then offered a number of witnesses to show that the fence had not been moved at the time of the trial of the chancery suit, and that he had never moved the fence. Upon this controverted testimony as to the truth of the alleged defamatory statements, the cause was submitted to the jury under instructions which authorized a verdict for the plaintiff, unless the defendant had shown by a preponderance of the evidence that the charge that the appellant had sworn falsely was true; and which directed the jury to return a verdict for the appellee if they believed from a preponderance of the evidence that the fence in question had not in fact been moved, and that the appellant knew it had not been moved when he testified in the chancery court that it had been moved. Under these instructions, the jury returned a verdict for the appellee, defendant in the court below; and from the judgment entered thereon, this appeal was prosecuted.
It is a well-established principle that the truthfulness of the alleged defamatory words spoken may be shown in justification, and that the truth of the words employed is a complete defense to an action for slander. In 17 R.C.L., p. 325, this doctrine is announced in the following language: "Proof of the truth of the defamatory words employed is, as a rule, a complete defense in an action for libel or slander in the absence of a statutory provision to the contrary. The fact that evil motives prompted the defendant to publish the truth will not impair his defense, nor is it material that the defendant did not know at the time of his publication, that he was speaking the truth." In 36 C.J., p. 1231, the same principle is announced in the following language: "In the absence of statutory or constitutional provision to the contrary, the general rule is that in all civil actions of libel or slander, defendant is justified in law and exempt from all civil responsiblility, where he alleges and establishes the truth of the matter charged as defamatory, whether the words are actionable per se or per quod, and notwithstanding the publication was malicious, or without reason on the part of defendant to believe the imputation to be true." The decisions of this court are in line with the general rule that the truth of the alleged defamatory words is a complete defense of an action of slander. Jarnigan v. Fleming, 43 Miss. 710, 5 Am. Rep. 514; Neely v. Payne, 126 Miss. 854, 89 So. 669. Where the truth of the words spoken is pleaded as a defense in such an action, the burden is on the defendant to establish such defense; and in the case at bar, this required not only that the defendant establish by a preponderance of the evidence that the fence in question had not in fact been moved by him, but also that the appellant knew that it had not been moved when he so testified. The court so instructed the jury, and by their verdict they so found.
The appellant first complains of the exclusion of the testimony of his immediate vendor, Mrs. R.L. Morrison, whose deposition was taken and offered in evidence. This witness testified that she did not know where the fence was located on the south side of the tract of land that she sold the appellant; that she did not pay any attention to it, and did not know whether the fence had been moved or changed. After repeated readings of her deposition, we do not see that her testimony threw any light upon the issue in controversy, or that the appellant was prejudiced by the exclusion thereof.
The appellant next complains that the court erred in refusing to permit him to testify that, before the trial of the chancery suit, the appellee stated to him in the presence of Dr. J.A. Borroum that, if he swore the fence had been moved, he would swear a lie. Conceding, for the purpose of this decision only, that the court erred in excluding this testimony, the appellant was not prejudiced thereby, for the reason that the appellee admitted making this statement; and Dr. Borroum, as a witness for appellant, stated that the appellee made the statement in his presence, and he testified fully in regard thereto.
The appellant also complains of the refusal of the court to permit him to prove mental anguish or suffering, and in refusing to grant an instruction authorizing the jury to return a verdict for mental suffering. In reply to this argument, the appellee contends that the rule applicable in this state, in actions for negligence, that damages for mental anguish disconnected from physical suffering are not recoverable, applies to actions for slander and libel. It will be unnecessary to here decide whether or not damages for mental anguish are recoverable in an action for slander, for the reason that, if it be conceded that the court below committed error in holding that such damages were not recoverable in this case, this error cannot avail the appellant, for the reason that, by the verdict of the jury, he failed to establish liability for any damages, even nominal. The appellant testified fully as to the damage to his reputation and standing in his profession or vocation, and proof of mental suffering could only have been admitted as an added element of damages; and since the jury found that there was no liability for any damage, the appellant was not prejudiced by the failure of the court to submit this additional element.
We have carefully examined each of the other assignments of error which are based upon the admission and exclusion of evidence, and we are of the opinion that none of them are of sufficient merit to call for a discussion thereof.
Finally, the appellant complains of two instructions granted to the appellee. If these two instructions were to be considered separate and apart from the other instructions in the case, they might be considered as inaccurate and misleading; but all instructions given in a case, both for the plaintiff and defendant, are to be considered together, one as supplementing or modifying another; and if, when so considered and interpreted, they present the law applicable to the case fully and fairly, the court will not reverse for the giving of a single instruction, which, taken alone, is not free from criticism. Haynes-Walker Lumber Co. v. Hankins, 141 Miss. 55, 105 So. 858; Gibson v. Wineman Son, 141 Miss. 573, 106 So. 826; Mutual Life Insurance Co. v. Vaughan, 125 Miss. 369, 88 So. 11. When all the instructions in the case at bar are considered together, we think they fully and fairly state the law applicable to the facts, and that this record presents no reversible error. The judgment of the court below will therefore be affirmed.
Affirmed.