Opinion
No. 31473.
January 7, 1935.
1. LIBEL AND SLANDER.
For words to be actionable under statute, circumstances under which the words were used must appear, and, if the occasion is such as to render it necessary or proper for the use of the words, they are not actionable, if used in good faith and without any intention to insult (Code 1930, section 11).
2. LIBEL AND SLANDER.
Where defendant had rented house to plaintiff and plaintiff took possession of another house, defendant's words that plaintiff used skeleton key to enter house held not actionable, where evidence disclosed mutual mistake as to which house was rented and defendant believed in good faith that plaintiff had entered wrong house surreptitiously (Code 1930, section 11).
APPEAL from circuit court of Holmes county.
HON. S.F. DAVIS, Judge.
Action by Mrs. Julia Davidson against R.L. Cooper.
From an adverse judgment, defendant appeals. Reversed and rendered.
Johnson White and A.M. Pepper, all of Lexington, for appellant.
Although the truth or falsity of the words spoken is not the real inquiry, and although the truthfulness of the words is not a complete defense, nevertheless the rule is that the truthfulness of the words spoken should go to the jury in mitigation of damages, and the half-statement of the law as contained in this instruction not only did not inform the jury of this fact, but by its phraseology reasonably led them to believe that although the words alleged to have been spoken were true, yet their truthfulness would avail appellant nothing, and consequently would certainly not mitigate the damages.
Winton v. Patterson, 152 Miss. 158, 119 So. 161.
In this class of cases, the exact words charged, or synonymous words, must be proved. It is not sufficient that the same general idea is conveyed.
Jones v. Edwards, 57 Miss. 28.
The language alleged to have been used was neither violent nor intemperate. There was nothing said or done that would indicate any desire on the part of Mr. Cooper to insult Mrs. Davidson. He did not charge her with the commission of an infamous crime. There was nothing said or done that indicates any motive on his part to degrade or humiliate her. His good faith cannot be seriously questioned.
Winton v. Patterson, 152 Miss. 158, 119 So. 161.
J.B. Hutton, Jr., of Jackson, for appellant.
The defendant's words are not actionable, because they do not under the circumstances in their natural construction impute wilful falsehood and house breaking to the plaintiff. In construing the words, the court looks to the words themselves under the surrounding circumstances to determine whether they impute wilful falsehood and housebreaking to the plaintiff.
Sec. 11, Code of 1930; Warren v. Norman, Walker 387; Cocke v. Weathersby, 5 S. M. 333; Woodville v. Pizatti, 30 So. 491; Rodgers v. Kline, 56 Miss. 808; Hennessey v. Ins. Co., 87 Miss. 259; Holliday v. Maryland Casualty Co., 115 Miss. 56; Capital Counties Bank v. Henty, 47 L.T. 662, 7 App. Cas. 741, 52 L.J.Q.B. 232, 31 W.R. 157, 47 J.P. 214; Golstein v. Foss, 6 B. C. 154, 108 Eng. Rep. Full Reprint 409; Reeves v. Templar, 2 Jurist 137; Hunt v. Goodlake, 29 L.T. (N.S.) 472; Simmons v. Mitchell, VI L.R. App. Cas. 156; Mulligan v. Cole, X L.R. 549; Chapman v. Ellesmere, 2 K.B. 431; Neville v. Fine Arts G. Ins. Co., A.C. 68; Lewis v. Black, 27 Miss. 425; Walker v. Smith, 19 So. 102; Scott v. Peebles, 2 S. M. 546; McLean v. Warring, 13 So. 236; Furr v. Speed, 74 Miss. 423; Ribble v. Y. M.V. Ry., 60 So. 2.
The assertion of rights does not in law charge wilful misconduct against the opponent and does not subject the claimant to liability as for accusing the opponent of wilful misconduct in resisting the claim so asserted. It is not a slander merely to assert a right in a mutual business transaction.
Grantham v. Wilkes, 100 So. 673; Dedeaux v. King, 45 So. 466; Verner v. Verner, 64 Miss. 321; Hardtner v. Salloum, 114 So. 621; Cartwright-Caps v. Kaufman, 74 So. 278; Sands v. Robinson, 12 So. 704; Railroad v. Ely, 83 Miss. 510; Torrance v. Hurst, Walker 403; Moore Stave Co. v. Wells, 72 So. 228; Fritz v. Williams, 16 So. 359; Winton v. Patterson, 119 So. 161; Jarnigan v. Fleming, 43 Miss. 710; Hubbard v. Rutledge, 47 Miss. 7; A. V. Ry. v. Brooks, 69 Miss. 168; Bromage v. Prosser, K.B., 4 B. C. 247; Roogood v. Spyring, I Crompton, Meeson, Roscie 180; Allbritt v. General Council of Medical Education and Registration, Q.B., 23 L.R. 400; Somerville v. Hawkins, 10 C.B. 583, 138 Eng. Rep. Full Reprint 231; Croft v. Stevens, 7 H. N. 570, 158 Eng. Rep. Full Reprint 598; Whitley v. Adams, 15 C.B. (N.S.) 393; 143 Eng. Rep. Full Reprint 838; Clark v. Molyneux, 37 L.T. (N.S.) 695; Haman v. Falle, IV L.R. 247; Stuart v. Bell, 2 Q.B. 341; Blackham v. Pugh, 2 C.B. 611, 134 Eng. Rep. Full Reprint 1086.
The question of actionability, and the question of the existence and scope of privilege in cases of alleged libel or slander are questions of law and are for the determination of the court.
Henwood v. Harrison, L.R., 7 C.P. 606, 26 L.T. (N.S.) 839; McQuire v. Western Morning News Co., 2 K.B. 100; Cook v. Wildes, 1 Jurist (N.S.) 610; Stace v. Griffith, L.T. XX (N.W.) 197; South Hetton Coal Co. v. Northeastern News Ass'n, 1 Q.B. 133; Dakhyl v. Labouchere, 96 H.L. 399.
E.T. Neilson and S.R. King, both of Lexington, for appellee.
A plea setting up the truth of the charges does not necessarily defeat the action or preclude a jury from assessing damages to the plaintiff at their discretion.
Crawford v. Melton, 12 S. M. 328; Jefferson v. Bates, 152 Miss. 128, 118 So. 171.
The appellant failing to request an instruction on aggravation or mitigation of damages cannot complain.
Masonite Corp. v. Lochridge, 140 So. 223.
There was but one declaration before the jury and that was the amended declaration. The facts are simple, short and concise and the actionable words easily ascertainable by any jury.
All instructions are considered together.
Bass v. Bennett, 119 So. 827; Public Service Corp. v. Watts, 150 So. 192; Landrum v. Ellington, 120 So. 444.
There is a well established rule of law that where there is any conflict in the evidence a directed verdict is improper.
Campbell v. Gulf M. N. Ry. Co., 89 So. 1; Dean v. Brannon, 139 Miss. 312, 104 So. 173.
In this case if the appellee's contentions were to be considered as proved the jury had clear and ample evidence to find that the appellant in order to remove appellee from the house in question, quickly, so that he could rent it to one paying higher rent, resorted to intimidation, using words which clearly conveyed the meaning that appellee stole into the house in question with a skeleton key, and squatted on the premises, without right or authority, which language clearly imputed that the appellee was the basest sort of person, for is there to be found a greater assault upon the character of a respectable woman than one of this nature.
Argued orally by H.H. Johnson and J.B. Hutton, Jr., for appellant and by S.R. King and E.T. Neilson, for appellee.
This is an action by the appellee for slander under the actionable words statute, section 11, Code 1930, reading: "All words which, from their usual construction and common acceptation, are considered as insults, and calculated to lead to a breach of the peace, shall be actionable; and a plea, exception or demurrer shall not be sustained to preclude a jury from passing thereon, who are the sole judges of the damages sustained; but this shall not deprive the courts of the power to grant new trials, as in other cases."
The amended declaration's allegation of the words spoken to the appellee is as follows: "`I didn't rent you this house.' Whereupon the said plaintiff replied to the said defendant, `Why, you certainly did, this was the only house I asked you for and you gave me the key to it.' And then and there the said defendant replied and spoke of and to this plaintiff the following words, in an angry, loud, insolent and insulting voice and manner, to-wit: `I did not, I rented you another house and this house wasn't mentioned. You got into this house with a skeleton key, you've got to get out.'"
The circumstances under which the words were spoken are, in substance, as follows: The appellant is the president of the Bank of Durant and secretary and treasurer of a building and loan association, each of which owned houses it desired to rent, and of which the appellant had the keys. He had authority to rent houses owned by the bank, but not those owned by the building and loan association.
On one occasion, the appellee came into the appellant's office at the bank and stated that she desired to rent a house. According to the appellee's evidence, the house desired by her was the Beall house. According to the appellant's evidence, it was the Streatman house. The Beall house was owned by the building and loan association, and the Streatman house was owned by the bank. They agreed on the rental, and the appellant gave her a door key which the appellee says she thereafter used in entering the Beall house.
It is reasonably clear from the evidence that the appellant thought he was renting the appellee the Streatman house, while the appellee thought she was renting the Beall house.
According to the appellant, he had lost the key to the Streatman house, and was using a skeleton key in place thereof, that is, a key so filed that it would unlock any lock of a certain type, and that was the key he gave to the appellee.
According to the appellee, the key given her was not a skeleton key, and the one she says was given her and which she used fitted the lock on the front door of the Beall house, but not that of the Streatman house.
Shortly after the appellee rented the house from him, the appellant discovered that the appellee was occupying the Beall house, whereupon, he went to that house and was met at the door by the appellee, and, according to her, a conversation took place as set forth above, during which the appellant spoke in a loud voice and in a rude and angry manner.
This discourtesy was denied by the appellant, who says that he did not use, or does not remember to have used, the words, "You got into the house with a skeleton key," but what was said on the occasion in question was this: "I said, `Miss Julia, you are in the wrong house. This house belongs to the Building and Loan Association, I rented you the house belonging to the Bank.' She said, `You didn't. This is the house you rented me,' and I said, `I didn't, I don't rent the Building and Loan houses.' . . . She got excited and I said, `Oh, well,' and turned around and left."
The court below refused a request of the appellant for a directed verdict and charged the jury to return a verdict for the appellee if they believed, from the evidence, that the words spoken by the appellant are, according to their usual construction, meaning, and acceptation, considered as insults, and calculated, or likely, to lead to a breach of the peace.
To apply the statute literally, the use of any words, without reference to the occasion or purpose of their use, which, from their usual construction and acceptation, are considered as insults and calculated to lead to a breach of the peace, would be actionable. To so construe the statute would reduce it to an absurdity and prevent one from using words of the character condemned by the statute when necessary to be used in asserting or defending, in good faith, a claimed right or duty. This court has uniformly declined to so construe the statute. The circumstances under which the words were used must appear. Warren v. Norman, Walk. 387. And, if the occasion is such as to render it necessary or proper for the use of the words, they are not actionable, if used in good faith and without any intention to insult. Verner v. Verner, 64 Miss. 321, 1 So. 479; Dedeaux v. King, 92 Miss. 38, 45 So. 466; Winton v. Patterson, 152 Miss. 158, 119 So. 161; and Chaffin v. Lynch, 83 Va. 106, 1 S.E. 803; Id., 84 Va. 884, 6 S.E. 474.
The evidence, as hereinbefore said, clearly discloses a mutual mistake as to which house the appellee had rented from the appellant, and that the appellee had taken possession of the Beall house under the impression that it was the house rented by her. The appellant had the right to insist upon his version of the controversy, Winton v. Patterson, supra, and to notify the appellee that she must vacate the Beall house. Whether she should obey this direction depended, of course, upon whether or not her version was correct.
The only words used by the appellant, assuming for the purpose of the argument that he did use them, were, "You got into this house with a skeleton key," which the appellee says, in effect, charged her with entering the house surreptitiously, knowing that she had no right to do so.
Assuming that the words are susceptible of that construction, nevertheless, the appellant had the right to use them, provided he did so in good faith and without intention to insult. If the appellee did, in fact, enter the house surreptitiously, the appellant had the right to so say. So, likewise, if he, in good faith, believed such to be the fact.
It is clear from the evidence that the appellant thought he had given the appellee a skeleton key, and, viewed in that light, the words, if used, must have been intended to convey the idea that the key he gave the appellee and with which she entered the house was a skeleton key. Certainly, if the appellant had said, "I did not, the key I gave you and with which you got into the house was a skeleton key," the words would have contained no suggestion of an insult, and such, in effect, as hereinbefore said, was the meaning of the words used.
It is true that the appellant's manner in using the words is to be taken into consideration, but the statute was not intended to prevent persons from becoming angry when attempting to settle their business and social controversies. It is also true that words, innocent in themselves, may become insulting when used in such a manner as to indicate that an insult was thereby intended, but such cannot be said to be the case here. At most, the evidence discloses a mutual altercation in which the appellant, according to the appellee, was guilty of the impropriety of becoming angry, but words, otherwise unexceptionable, do not become actionable merely because spoken in anger.
The words of the statute, "A plea, exception or demurrer shall not be sustained to preclude a jury from passing thereon," do not abolish the rule of privilege, and, when it is clear that the privilege has not been exceeded, the court should so say. Authorities, supra.
The appellant's request for a directed verdict should have been granted.
Reversed, and judgment here for the appellant.