Opinion
No. 38348.
April 7, 1952.
1. Libel and slander — thief, accusation.
An oral accusation that a named person is a thief is actionable per se.
2. Libel and slander — pleading — proof — identical or synonymous words.
To sustain a charge of slander per se it is necessary to prove that the identical words alleged in the declaration, or synonymous words, were used and it is not sufficient to show that the same general idea is conveyed.
3. Libel and slander — charge of having stolen cash — proof insufficient.
When a declaration for slander charged that the defendant had said of plaintiff, Hogue, "That fellow Lloyd Hogue stole $300 in cash from under my cash register this morning" and the nearest approach to those words in the proof was the testimony of the plaintiff himself which was "I heard him say I stole the money", such proof was insufficient to sustain the charge.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Washington County; ARTHUR JORDAN, Judge.
Ernest Kellner, for appellant.
In a suit upon words actionable per se the identical words charged or synonymous words must be proved. Words conveying the same general idea are not sufficient. Jones v. Edwards, 57 Miss. 28; Baldwin Piano Co. v. Jones, 152 Miss. 254; C.I.T. Corporation v. Correro, 192 Miss. 522.
The words charged in appellee's declaration are actionable per se. To sustain his action it was incumbent upon appellee to prove the identical or synonymous words charged. He wholly failed to do so.
The words charged are: "That fellow Lloyd Hogue stole $300.00 in cash from under my cash register this morning and I'm going to have him arrested." Although appellee alleged in his declaration that appellant uttered the words charged to Dr. Andy Crawford, Vergil Wells, and also to numerous other people, appellee only introduced Dr. Crawford and David Crawford. He did not introduce Vergil Wells.
Neither Dr. Crawford nor David Crawford testified that appellant uttered the identical words charged, or synonymous words, or even words conveying the same general idea, the latter of which, of course, is not sufficient. The identical words charged or synonymous words must be proved.
One of the latest decisions of this Court adhering to that principle is the case of C.I.T. Corporation v. Correro, supra. In that case the words charged were: "That's what we get for financing a couple of thieves". Rogers, a witness for the plaintiff, testified to the words charged. According to the evidence for the defendant the words uttered were: "That's what we get by dealing with a couple of crooks". The trial court directed a verdict for the plaintiff. This Court reversed and, after quoting from and citing the cases of Jones v. Edwards, supra; and Baldwin Piano Co. v. Jones, supra, held that there was a jury question as to whether the defendant uttered the words charged in the declaration and testified to by plaintiff's witness Rogers. The Court said: "The words `thieves' and `crooks' are, of course, not identical and are not synonymous. All thieves probably are crooks, but all crooks are not necessarily thieves. If the jury accepted appellant's version of the language used by Abroms, the appellee was not entitled to recover on this second count, and the jury should have been permitted to resolve this conflict in the evidence."
The words charged in the declaration in this case are: "That fellow Lloyd Hogue stole $300.00 in cash from under my cash register this morning and I'm going to have him arrested."
Neither Dr. Crawford nor David Crawford, the only witnesses introduced by appellee to prove that appellant uttered the words charged, nor any other witness in the case, testified that appellant uttered the words charged, or words synonymous, or words anything like the words charged.
On the contrary, both Dr. Crawford and David Crawford, witnesses for appellee, corroborated the testimony of appellant that he only stated the facts and circumstances surrounding the loss of his money and that appellee was the only person alone in the store standing near the cash register during the time that the money was lost.
In response to the question of appellee's counsel as to whether appellant requested him to arrest appellee, Dr. Crawford summarized the visit and statements of appellant to him as follows: "No, sir, he didn't request it. He came to my house just before noon and said he had just missed something over $300.00 in his establishment over in Issaquena County and during that time he lost it Mr. Hogue was in there alone and when he got to that store I told him he was in Issaquena County and he would have to go over there and he left."
So far as the record discloses, that was the only time appellant ever saw or talked to Dr. Crawford about the incident. Yet appellee alleged in his declaration that appellant said to Dr. Crawford: "That fellow Lloyd Hogue stole $300.00 cash from under my cash register this morning and I'm going to have him arrested."
In response to the questions of appellee's counsel as to what appellant said to him and as to what statement appellant made with reference to Hogue getting his money, David Crawford testified: "He only said he lost $300.00 then in the meantime, he said Mr. Hogue was in his place and he said the boy was up in front (I don't know who) and Phillip Lemonis was in the back and Hogue wanted a beer on credit and the boy stepped back to ask his daddy about letting him have a beer and he told us he told the boy just to wait he would be up in just a minute. He said he did let him have the beer and in the meantime Hogue was drinking the beer and three or four walked in — he didn't call their names — Hogue finished his beer and left and he got in his car and tried to overtake Hogue and he said he chased him to Rolling Fork.
"Only that Hogue was the only one in the place of business when the boy came to ask him about letting him have a beer on credit."
There is no proof of the words charged in the declaration or of synonymous words. Therefore, the trial court erred in refusing appellant's request for a directed verdict.
J.W. Miller, Farish, Keady Campbell, for appellee.
The defense by appellant is that the appellee did not prove the identical words, or synonymous words, and that what appellant said and published was true. We say that while we did not prove that appellant told others that appellee stole his money, we do insist that what he did charge and tell others was, in fact, the very same thing. What he did say and from the connection in which the charge was made and the circumstances attending its utterance was intended, did, and was so understood by all to whom he told it, impute the charge of larceny by appellee of appellant's money; that is, he meant to tell and did that appellee had stolen his money but without using the word "stolen". There is ample authority for taking into consideration all of the circumstances under which the words were spoken but we deem it necessary only to cite: Kroger Grocery Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335; Interstate Co. v. Garnett, 154 Miss. 325, 122 So. 373; Taylor v. Standard Oil Co., 184 Miss. 392, 186 So. 294.
In the last case just cited, the Court said on page 399: "The rule, in cases of this class, is that both the judge and the jury in performing their respective functions take into account all the circumstances surrounding the communication of the matter complained of as defamatory. A.L.I. Rest. Torts, Sec. 614, subpar. c, p. 305. Accordingly, it was said in Illinois Central R. Co. v. Wales, 177 Miss. 875, 885, 171 So. 536, 538, `that no attempt will be made to lay down any definite rule as to the construction of language charged to be slanderous which will govern all cases, but that the particular language used, and the particular facts and circumstances of each case, must control.'"
Appellee brought suit against appellant for slander and recovered a judgment for $2000 actual damages and $1000 punitive damages. Appellant contends that he was entitled to a peremptory instruction which was refused by the trial court.
The declaration charges that appellant made the following charge against appellee: "That fellow Lloyd Hogue stole $300.00 in cash from under my cash register this morning and I'm going to have him arrested." (Hn 1) Words which accuse a person of being a thief are actionable per se, Valley Dry Goods Co. v. Buford, 114 Miss. 414, 427, 75 So. 252. (Hn 2) To sustain a charge of slander per se it is necessary to prove that the identical words alleged in the declaration, or synonymous words, were used and it is not sufficient to show that the same general idea is conveyed. C.I.T. Corporation v. Correro, 192 Miss. 522, 530, 6 So.2d 588; Jones v. Edwards, 57 Miss. 28; Baldwin Piano Co. v. Jones, 152 Miss. 254, 119 So. 182.
The declaration charged that the quoted words were uttered and published to J.S. Myres, the Sheriff of Issaquena County, to Dr. Andy Crawford, the Sheriff of Sharkey County, to Vergil Wells and to numerous people.
To sustain his charge the appellee offered David Crawford as a witness who testified as follows:
"Q. What did he (Lemonis) say? A. He only said that he lost $300.00 then in the meantime he said Mr. Hogue was in his place and he said the boy was up in front (I don't know who) and Phillip Lemonis was in the back and Hogue wanted a beer on credit and the boy stepped back to ask his daddy about letting him have the beer and he told us he told the boy to wait he would be up in just a minute. He said he did let him have the beer and in the meantime Hogue was drinking the beer and three or four walked in — he didn't call their names — Hogue finished his beer and left and in the meantime he missed his money and he got in his car and tried to overtake Hogue and he said he chased him to Rolling Fork."
Appellee testified in his own behalf and made no effort to substantiate the aforesaid charge in his declaration. On cross examination he admitted that he did not hear appellant utter the quoted words but he did say "I heard him say I stole the money" and he testified that his statement was made to Dr. Andy Crawford, Vergil Wells, David Crawford and David Woolbert.
The only other witness offered to substantiate the charge was Dr. Andy Crawford who testified that appellant did not request the arrest of appellee but that "He came to my house just before noon and said he had just missed something over $300.00 in his establishment over in Issaquena County and during that time he lost it Mr. Hogue was in there alone and when he got to that store I told him he was in Issaquena County and he would have to go over there and he left."
Neither J.S. Myres nor Vergil Wells nor David Woolbert was offered as a witness by appellee.
Mr. Myres was offered as a witness by appellant and testified: "It was about 12:30 on Sunday he (Lemonis) came and said he had lost some money at the store and I asked him how much and he didn't know exactly and I told him I would run right on out. I asked him who had been in the store and he said a good many, then it boiled down to one man and he said he wanted to buy a bottle of beer on credit and his son came to the back room and asked him and he said this boy sold him a bottle of beer. I said `Where did you put your money?' and he said `In this little drawer that was about 14 inches square next to the cash register.'" On cross examination Mr. Myres was asked "Did he say he stole it?" and he replied "No, sir."
Appellant testified and positively denied making the statement attributed to him in the declaration.
(Hn 3) We are of the opinion that appellee's proof wholly failed to sustain the charge of the declaration. No one testified that the words charged in the declaration were uttered nor that synonymous words were used. Consequently under the above authorities appellant was entitled to a peremptory instruction. The judgment of the lower court is accordingly reversed and judgment will here be entered in favor of appellant.
Reversed and judgment here.
Roberds, Alexander, Kyle and Holmes, JJ., concur.