Opinion
February 14, 1949.
1. Appeal — courts — former decision by divided court — libel and slander.
When defendant's assistant manager by words spoken to a group of three including plaintiff charged that one of them has been guilty of a seriously wrongful act without singling out plaintiff as the guilty party and it was decided by a divided court on a former appeal that although the charge was made in the alternative the plaintiff is entitled to recover in an action of slander, the decision is the law of the case on a subsequent appeal and moreover is a binding precedent for future cases until overruled.
2. Libel and slander — evidence of good faith in making charge admissible, but not as bar to action.
Where the slanderous words were spoken to a group of three including plaintiff after information received by the defendant that one of the group was guilty as charged, evidence relating to the information is admissible on the issue of good faith in charging that one of the three was guilty of an unlawful act, but not as a bar to the action.
3. Libel and slander — on issue whether others heard slanderous words.
On the issue whether others, than the persons charged, heard the slanderous words, the affirmative of that issue is sufficiently sustained by testimony that others were in two or three feet of the defendant at the time and that they stopped, looked and listened.
4. Appeal — libel and slander — erroneous testimony directed to amount of damages, cured by remittitur.
Although testimony, influential only as to amount of damages, was erroneously admitted, it could and would be cured by remittitur, ordered by the court.
5. Libel and slander — privileged communications.
A slander of an employee by an employer although in connection with the business of the employment is not privileged under Chap. 295, Laws 1940, known as the State Unemployment Act, especially where jury was warranted in finding that the accusations were false in fact and maliciously made.
6. Appeal — argument by attorney.
Where it was stipulated that the testimony of an important witness taken at a former trial could be introduced by either of the parties and the attorney for the plaintiff read to the jury his part of the examination of the witness, but the attorney for defendant did not read his part, comment on this fact by the plaintiff's attorney in his argument to the jury presents no grounds for reversal.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Hinds County; H.B. GILLESPIE, J.
Stuart S. Ball, David L. Dickson and Jackson, Young, Daniel Mitchell, for appellant.
The trial court erroneously refused to grant a peremptory instruction for both appellants-defendants, and judgment should be entered in favor of appellants here for the reasons stated below: . . .
The peremptory instruction should have been granted appellants because the statements alleged in the declaration and testified to in the appellee's case did not charge the appellee herself with a wrongful act and, therefore, there is no slander . . . A. The words alleged by appellee and testified to in her case merely charged that one of three individuals had negligently mishandled funds.
B. In action for slander, the plaintiff must recover, if at all, on the words alleged in the declaration, or synonymous words. Baldwin Piano Company v. Jones, 152 Miss. 254, 119 So. 182; C.I.I. Corporation v. Correro, 192 Miss. 522, 6 So.2d 588; W.T. Farley, Inc. v. Bufkin, 159 Miss. 350, 132 So. 86.
C. Words spoken of a group, charging that the group includes one guilty of a wrongful act, but which does not charge that all are guilty and do not single out the plaintiff, are not actionable. Annotation, 91 A.L.R. 1161; Annotation, 97 A.L.R. 281; Annotation, 23 L.R.A. (N.S.) 726; Bull v. Collins, (Tex.) 54 S.W.2d 870; Crane v. O'Reilly, 13 N.Y. Civ. Proc. Rep. 71, 11 N YS.R. 277; Giraud v. Beach, 3 E.D. Smith (N.Y.) 337; Grotius v. Ross, 24 Ind. App. 543, 57 N.E. 46; Harris v. Santa Fe Townsite Co., 58 Tex. Civ. App. 506, 125 S.W. 77; Harvey v. Coffin, 5 Blackf. (Ind.) 566; Hays v. American Defense Society, 252 N.Y. 266, 169 N.E. 380; Helmicks v. Stevlingson, 212 Wis. 614, 251 N.W. 402, 91 A.L.R. 1156; Hyatt v. Lindner, 133 La. 614, 63 So. 241, 48 L.R.A. (N.S.) 256; Jones v. Davers, 1 C.R. 496; Jones v. Modisette, 151 La. 614, 92 So. 144; Kassowitz v. Sentinel Co., 226 Wis. 468, 277 N.W. 117; Kensworthy v. Journal Co., 117 Mo. App. 327, 93 S.W. 882; Odgers, Libel and Slander, 5th Ed., 1911, p. 147; Owen v. Clark, 154 Okla. 108, 6 P.2d 755; Rowan v. Gazette Printing Co., 74 Mont. 326, 239 P. 1035; Williams v. Journal Co., 211 Wis. 362, 247 N.W. 435; Zanker v. Lackey, 32 Del. 588, 128 A. 435.
D. The cases relied on in the opinions of the court in the Skinner case do not support the appellee on the issue presented in this record. Crane v. O'Rielly, supra; Forbes v. Johnson, 50 Ky. (11B. Mon.) 48; Grotius v. Ross, supra; Hardy v. Williamson, 86 Ga. 551, 12 S.E. 874; Hyatt v. Lindner, supra; Louisville Times Co. v. Emrich, 252 Ky. 210, 66 S.W.2d 73; Montgomery Ward Co., Inc. et al. v. Skinner, 200 Miss. 44, 25 So.2d 572; Restatement of Torts, Secs. 559, 564, 569, 570, 571.
The peremptory instruction should have been granted because there was no evidence that the statements alleged in the declaration were heard and understood by any person other than principals. 33 Am. Jur. 103, 104, Sec. 90; 53 C.J.S. 133, 134, Sec. 82a; Scott-Burr Stores Corp. v. Edgar, 161 Miss. 486, 177 So. 776; Wrought Iron Ore Co. v. Boltz, 123 Miss. 550, 86 So. 354.
The peremptory instruction should have been granted appellants because the necessary allegation of malice was not supported by evidence.
A. The circumstances under which the alleged slanders were uttered were qualifiedly privileged. Annotation, 98 A.L.R. 1301; Louisiana Oil Corporation v. Renno, 173 Miss. 609, 157 So. 705, 98 A.L.R. 1296; Scott-Burr Stores Corp. v. Edgar, supra.
B. The qualified privilege justified otherwise slanderous statements unless uttered with actual malice. Annotation, 92 A.L.R. 1174; C.I.I. Corporation v. Correro, 192 Miss. 522, 6 So.2d 588; Gust v. Montgomery Ward Co., 229 Mo. App. 371, 80 S.W.2d 286; Kroger Grocery Baking Co. v. Yount, 66 F.2d 700, 92 A.L.R. 1166; Missouri Transportation Co. v. Beard, 179 Miss. 450, 176 So. 156; Montgomery Ward Co. v. Watson, 55 F.2d 184; Scott-Burr Stores Corp. v. Edgar, supra; Willis v. McCarty Holman Co., 187 Miss. 381, 193 So. 337.
C. Unlike the record in the Skinner and Blakely Cases the record in the present case contains uncontradicted evidence of reasonable or probable cause, and is devoid of evidence sufficient to support an inference of actual malice. Montgomery Ward Co., Inc. et al. v. Skinner, 200 Miss. 44, 25 So.2d 572; Scott-Burr Stores Corp. v. Edgar, supra.
Point II. The verdict of the jury was against the overwhelming weight of the evidence, and the trial court erred in not granting a new trial for this reason.
1. This court should reverse and remand with directions to grant a new trial where there is no substantial evidence in appellee's favor, even though it should hold that appellants were not entitled to a peremptory instruction. Fore v. Alabama V. Ry. Co., 87 Miss. 211, 39 So. 493; Secs. 1537, 1945, Code of 1942; Mobile Ohio R. Co. v. Bennett, 127 Miss. 413, 90 So. 113; Montgomery Ward Co. v. Windham, 195 Miss. 848, 17 So.2d 208.
2. Verdicts must be based on and supported by substantial and reasonable believable evidence. Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 625; Missouri Transportation Co. v. Beard, 179 Miss. 450, 176 So. 156; Mutual Benefit Health Accident Ass'n. v. Johnson, (Miss.) 186 So. 297; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80.
3. Appellee did not produce substantial evidence to support a jury verdict in her favor.
A. There was no substantial evidence that the language used applied especially to appellee.
B. There was no substantial evidence that bystanders heard and understood the language as applying especially to appellee. Louisiana Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705, 98 A.L.R. 1296; Scott-Burr Stores Corp. v. Edgar, supra.
C. There was no substantial evidence of malice.
Point III. The trial court disregarded the opinion of this court rendered on the previous appeal, and again erroneously admitted incompetent and prejudicial evidence on the alleged effects of appellee's discharge, and on the alleged injury to her feelings resulting from the accusation and the discharge. 53 C.J.S. 366, Sec. 243; Great Atlantic Pacific Tea Co. v. Majure, 176 Miss. 356, 167 So. 637; Illinois Central R. Co. v. Ely, 83 Miss. 519, 35 So. 873; Montgomery Ward Co. Inc. et al. v. Skinner, 200 Miss. 44, 25 So.2d 572; Yazoo M.V.R. Co. v. Rivers, 93 Miss. 557, 46 So. 705.
Point IV. The trial court committed reversible error in its charge to the jury by assuming that the words complained of were slanderous per se, by refusing to give an instruction stating appellants' version of the occurrence, and by refusing to give an instruction submitting the question of absolute privilege under the Unemployment Compensation Act.
1. Given instruction No. 2 erroneously assumed that the words charged in the declaration were spoken of the plaintiff appellee, and that they were slanderous per se. Baldwin Piano Co. v. Jones, 152 Miss. 254, 119 So. 182; 64 C.J. "Trial", Secs. 615, 763; Monticello Plywood Box Co. v. Haney, (Miss.) 142 So. 497; Nowell v. Henry, (Miss.) 12 So.2d 540.
2. Refused instructions E and F properly submit the issue of the truth or falsity of the defendant-appellants' version of the occurrence, and were erroneously refused.
3. Refused instruction G properly stated the question of absolute privilege under the Unemployment Compensation Act, and was erroneously refused. Chapter 295, Laws of 1940.
Point V. The trial court committed reversible error in overruling appellants' motion for a mistrial because of highly improper argument of counsel for appellee. McKnight v. Wilson, 158 Ga. 153, 122 S.E. 702; New Orleans N.E.R. Co. v. Miles, 197 Miss. 646, 20 So.2d 657.
Point VI. The trial court disregarded the decision of this court in the companion cases of Skinner and Blakely, and sustained a verdict which was double the amount which this court had previously held sufficient, and which was obviously due to passion and prejudice. Reliance Manufacturing Company v. Graham, 181 Miss. 549, 179 So. 341.
Point VII. The Skinner and Blakely cases do not constitute controlling precedents, in view of the different evidence presented and the different points argued in the instant case.
1. The present case is not ruled by the decisions in the Skinner and Blakely cases.
2. Insofar as the court may have used language in the Skinner case inconsistent with a judgment for appellants here, such language should not be followed. Brewer v. Browning, 115 Miss. 358, 76 So. 267.
Butler Snow, Barnett, Barnett Jones, for appellees.
The decisions in Montgomery Ward Co. Inc. v. Skinner and Montgomery Ward Co. v. Blakely, companion cases to the present case, are binding judicial precedents which control in the present case; in addition, this being the second appeal of the present case, and the court having adhered to said decisions on the first appeal, such decisions are the law of this case.
As indicated, the present case is a companion case of Montgomery Ward Co., Inc. v. Skinner, 200 Miss. 44, 25 So.2d 572; and Montgomery Ward Co., Inc. v. Blakely, 200 Miss. 81, 25 So.2d 585. The facts involved in the three cases are identical and the testimony in the records differs in no matter or substance. If anything, the testimony in the present record is stronger in favor of the plaintiff than in the two previous cases.
It is true that the decisions in the Skinner and Blakely cases were affirmances by an equally divided court. But this court has repeatedly held time and time again that an affirmance by an evenly divided court is a binding judicial precedent. Robertson v. Miss. Valley Co., 120 Miss. 159, 81 So. 799; Hughes v. Gully, 170 Miss. 425, 153 So. 528; Jefferson Standard Life Ins. Co., et al. v. Ham, 178 Miss. 838, 173 So. 672; Brock v. Adler, 180 Miss. 118, 177 So. 523; Miss. State Tax Commission v. Brown, 188 Miss. 483, 509, 193 So. 794.
There is a further circumstance which makes it absolutely certain that the decision in the Blakely and Skinner cases is controlling in the present case. We refer to the doctrine of the law of the case. It must be borne in mind that the present appeal is the second appeal of the present case. The first appeal and the decision rendered appear in 201 Miss. 467, 29 So.2d 267. On such first appeal, the Supreme Court, again being evenly divided, adhered to the views announced in the Blakely and Skinner cases. By so doing, we submit that the decision in the Blakely and Skinner cases became the law of the case governing this case.
The doctrine known as the law of the case is that a matter once adjudicated on an appeal will not be reopened under a later appeal of the same case.
The doctrine is one of court practice and is not founded upon legislative enactment.
Although related to, the doctrine is not the equivalent of stare decisis or res adjudicata.
A primary basis for the doctrine is the practical policy of ending litigation. See generally, 3 Am. Jur. Appeal and Error, Section 985. See also Robert v. Cooper, 20 Howard 467, 15 L.Ed. 969, 174; Johnson v. Success Brick Machinery Company, 104 Miss. 217, 61 So. 178; Supreme Lodge K.P. v. Hines, 109 Miss. 500; Reily v. Crymes, 176 Miss. 133, 168 So. 267; N.Y. Life Ins. Co. v. McIntosh (Miss.) 46 So. 401.
Point 2. The lower court was correct in refusing both of the appellants' request for a peremptory instruction — reply to appellants' point I.
Point I made by appellants' in the present case is contained in pages 8 through 44 of the printed brief of appellants. As we have hereinabove stated, this point is an attempt to reargue the questions which have been foreclosed by the former decisions in the Blakely and Skinner cases.
Appellants contend that the words were spoken alternatively, or of a group and did not charge the plaintiff and did not have application to the plaintiff.
In their argument, appellants attack the holding of the court in the Skinner and Blakely cases.
Appellants also contend that the defamatory utterances were not heard and understood by third persons and that the occasion was one of qualified privilege and that the necessary malice was not shown.
All of these contentions are settled adversely to the appellants by the decisions in the Blakely case and the Skinner case, and the decision on the first appeal of the present case which adhered to the Blakely and Skinner rule.
Every contention which appellants assert under this point on the present appeal was asserted in their printed brief on the first appeal at pages 1-40.
On page 31 of their printed brief, appellants contend that there was no evidence that the statements alleged in the declaration were heard and understood by any person. As a matter of fact the record contains overwhelming testimony that there were numerous customers present at the time of the defamation and that their attention was attracted by the disturbance, and that they listened to the conversation. Appellants have made excerpts from the testimony, which they deem favorable to their version of the facts, and have ignored the testimony which establishes conclusively that numerous other persons were present and listened to the defamation.
It was repeatedly testified that there were numerous persons and customers standing near enough where they could have heard it. In such a case, the courts hold that the publication is sufficiently established. In Roemer v. Jacob Schmidt Brewing Co., 132 Miss. 399, 157 N.W. 640, L.R.A. 1916E, 771, it was held that a finding or publication is fully sustained by testimony of the plaintiff that the words uttered could have been heard by four persons, although two did not testify, and the other two declared that they did not hear the conversation.
Point 3. The verdict and the judgment of the court below are amply sustained by the evidence. Reply to appellants' point II.
Appellants here contend that the verdict is contrary to the overwhelming weight of the evidence, and that the case should be reversed and remanded for a new trial.
A complete answer to the contention that the verdict is against the weight of the evidence, is found in the opinion of the court in the first appeal of the present case and in the opinion of the court in the Skinner case. The evidence in the present record, and the evidence in the record which was before this court on the first appeal of the present case, is substantially identical with the evidence which was before the court in the Skinner and Blakely cases. In each of those cases the court decided that the evidence was in conflict and should have been submitted to the jury as was done by the trial court.
Point 4. The court below committed no prejudicial error in the admission of evidence — reply to appellants' point III.
Appellants contend that the court below erred in permitting the introduction of evidence relating to the personal reaction of the plaintiff to the accusation, the loss incident to her discharge and the humiliation which she underwent when she was questioned about the charges by other people who had heard about it.
We submit that the same identical evidence now complained of was present in both the Skinner and Blakely cases, and was held to have been properly admitted.
The court should not now depart from the rule announced in those cases, said cases being binding judicial precedents, as well as constituting the law of this case.
Point 5. The trial court committed no error either in giving or refusing of instructions — reply to appellants' point IV.
Under point IV, appellants contend that the instructions were erroneous and specifically contend that given Instruction No. 2 assumed that the words charged in the declaration were slanderous per se and that defendants' refused instructions E and F were improperly refused.
These points were argued in appellants' printed brief on the first appeal of this case beginning at pages 57 and 29.
Appellants also contend that the action of the lower court in refusing to give an instruction raising the question of absolute privilege under the Mississippi Unemployment Compensation Act was erroneous. This point was not presented in any of the prior appeals, but is obviously without merit.
The statute which appellants seek to invoke provides that all letters, reports, communications or other matters, oral or written, from the employer or employee to each other, or to the commission or its representatives, which are written, sent, delivered or made in connection with the requirements and administration of the acts shall be privileged.
The first prerequisite under this statute is that the statements shall be made from the employer or employee to each other, or to the commission or its representatives. The second requirement is that such statements be made in connection with the administration of the act.
It is perfectly clear that the transaction and occurrence, which is the basis of this suit for slander, had no connection with the requirements and administration of the act.
Point 6. There was no improper argument of counsel for appellee, and the trial court committed no error in overruling appellants' motion for a mistrial — reply to appellants' point V.
Appellants contend that it was improper for counsel for the appellee to comment on the failure of the defendants to introduce the testimony of their agent Burnie, which had been taken on the previous trial.
There was no impropriety or prejudice whatsoever in this comment.
And it is settled by authority that the situation which transpired here is not error. A closely analogous situation is discussed in 64 C.J. p. 270, where it is said: "Where it has been stipulated that any depositions read in a former suit might be read by either party, it is not improper for counsel to comment on the failure of the opposing party to introduce the deposition of one who was his vice principal, notwithstanding counsel could introduce it himself."
Point 7. Reply to appellants' point VI. — The amount of damages awarded by the jury is sustained by the evidence and should be approved by this court.
Appellants argue that the verdict for $15,000.00 in the present case is excessive, and they argue that the size of the verdict is attributable to certain alleged errors which they have previously urged in their brief.
Four entirely different juries, after hearing evidence which is virtually identical with that involved in the present case, have awarded damages which in each instance were not less than $12,500.00, and which in two instances were for the sum of $15,000.00.
Furthermore, the court has held that this was a case in which punitive damages might be awarded and it is settled that the amount of punitive damages to be imposed is peculiarly within the discretion of the jury. See Kroger Grocery and Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335; Y. M.V. Railroad Co. v. May, 104 Miss. 422, 61 So. 449; Y. M.V. Railroad Co. v. Mitchell, 83 Miss. 179, 35 So. 339.
This is the second appearance of this case on appeal. It is a companion case to that of Montgomery Ward Company et al. v. Skinner, 200 Miss. 44, 25 So.2d 572; and Montgomery Ward Company et al. v. Blakely, 200 Miss. 81, 25 So.2d 585. The decision on the first appeal of the instant case is reported in 201 Miss. 467, 29 So.2d 267, styled Montgomery Ward Co. et al. v. Higgins. The plaintiff, who is the Mrs. Ralph Higgins mentioned in the opinion in the case of Montgomery Ward Company v. Skinner, supra, has now become Mrs. June Harland, the plaintiff herein.
The present suit is predicated upon the same facts in every essential particular as those set forth in the opinion in the Skinner case. The same question of law as to non-liability of the defendant Montgomery Ward and Company and its assistant manager, R.H. Burnie, is involved in the case now before us as was involved in the Skinner and Blakely cases on the point that the words spoken of a group of three persons, charging that one of them has been guilty of a wrongful act, but which does not charge that all are guilty and does not single out the plaintiff, are not actionable.
Moreover, the same question was presented and fully briefed by the appellants on the former appeal of the instant case, and the Court, in its opinion, stated that "the views of the several members of the Court upon the matters heretofore assigned as error are consistently maintained." This observation in the opinion has reference to "an alleged slander by the appellants against all three of said plaintiffs, whereby it was charged that `one of the three' had `trifled with the money' of appellant (Montgomery Ward and Company) `with ill intentions.'"
(Hn 1) We are therefore of the opinion that the contention of non-liability on the ground that the charge was made in the alternative has now been foreclosed, not only by the law of this case as announced on the former appeal, but by the decisions in the Skinner and Blakely cases, supra. An affirmance by an evenly divided Court is a binding judicial precedent unless and until the same is overruled, and a majority of the Judges are of the opinion that the two companion cases were correctly decided. Robertson v. Mississippi Valley Co., 120 Miss. 159, 81 So. 799; Hughes v. Gully, State Tax Collector, 170 Miss. 425, 153 So. 528; Jefferson Standard Life Ins. Co. et al. v. Ham, 178 Miss. 838, 173 So. 672; Brock, State Bank Commissioner v. Adler, 180 Miss. 118, 177 So. 523; Mississippi State Tax Commission v. Brown, 188 Miss. 483, 193 So. 794, 195 So. 465, 127 A.L.R. 919, 933.
On the former appeal of the present case, however, we reversed and remanded the cause for the reason that the trial court excluded testimony to the effect that the co-defendant Burnie had acted on information that the hidden check had been given to the plaintiff herein, or one of the plaintiffs in the former suits, and not to one of the two remaining employees in that department. On remand of the instant case, the trial court permitted the introduction of such testimony, and it disclosed that the check in the sum of $5,10 found underneath a plaque at the cash register, along with the $30.00 in currency, had been signed by a customer, Mrs. Fremon Jones, who, prior to the alleged slanderous charges against the three salesladies, had, in response to an inquiry in that behalf, informed Mr. Catchings that she gave the check for purchases in the toy department where the three ladies in question were employed, and that Mr. Catchings had furnished the co-defendant, Burnie, with such information, and that for this reason the said Burnie was justified in eliminating Mrs. Darby who worked in the furniture department, and Mr. Catchings who worked in the appliance department on the same floor, when trying to fix the responsibility for the placing of the money and the check under the plaque at the cash register.
(Hn 2) We thought that the defendants were entitled to make such proof on the question of good faith for whatever it should be worth in the consideration of the case by the jury, but we did not say, nor intend to hold, that such additional proof would bar a recovery on a new trial. The question still remained as to whether or not the defendant Burnie was justified in slandering at least two innocent ladies in the toy department in the presence and hearing of the customers in the store, even if he had actually known that one or the other of the three of them had been guilty of the alleged dishonest act of trifling with the Company's money with ill intentions, or of a mere act of carelessness.
(Hn 3) But it is contended by the appellants that there is no proof in the record on this appeal that any of the customers heard the remarks complained of, which are alleged to have been made by the defendant Burnie. However, a witness for the plaintiff testified in substance that some of the customers were within three or four feet of the defendant Burnie, when these accusations were made, and "when they (the customers) would be at the register getting their change and their bundles", and this witness was specifically questioned as follows: "Q. Could any of them hear what he was saying?" "A. I am sure they could have." Thereupon an objection was made to the answer "unless she knows." The objection was sustained, unless she knew, and she then answered, "They stopped, and looked, and listened."
In the opinion on the former appeal of this case, the observation was made by the Court that "Much testimony was adduced to show the personal reactions of the plaintiff to the accusations, the loss incident to her discharge, and the humiliation incident to her own re-publication of the charges. It is true that much of this was properly excluded by the trial judge, but only after its impact upon the jury. It is assumed that upon a second trial the risk of a residual prejudice will be avoided by disallowing its introduction." And it is now contended that the trial court permitted the introduction of evidence as to these same matters on the second trial of this case, and to the prejudice of the defendants. In view of this statement in the former opinion, it was error to have permitted the introduction of some of the testimony of this nature on the second trial. (Hn 4) However, such testimony could have only been influential with the jury in arriving at the amount of damages to be assessed. But if its introduction was erroneously permitted, and if it influenced the jury in assessing the damages at the sum of $15,000, we are of the opinion that by ordering a remittitur entered so as to reduce the judgment to the sum of $7,500, as was done in the two companion cases of Skinner and Blakely, such action will amply cure any harm that may have been done by this testimony in regard to the measure of damages.
(Hn 5) As a new point made on this appeal, it is now contended that the occasion on which the slanderous accusations were alleged to have been made by the defenant Burnie was one of absolute privilege under the State Unemployment Compensation Act, Chapter 295, Laws of 1940, which provides among other things that "All letters, reports, communications, or any other matters either oral or written, from the employer or employee to each other or to the (Unemployment) commission or any of its agents, representatives or employees which shall have been written, sent, delivered, or made in connection with the requirements and administration of this act, shall be absolutely privileged and shall not be made the subject matter or basis for any suit for slander or libel in any court in the state of Mississippi, unless the same be false in fact and maliciously written, sent, delivered, or made for the purpose of causing a denial of benefits under this act."
We are of the opinion that the alleged accusations were not "made in connection with the requirements and administration" of the said act. Nor do we think there would be any basis for our holding that they were "made for the purpose of causing a denial of benefits" under the act. Moreover, we think that the jury was warranted in finding that the accusations were "false in fact and maliciously . . . made."
The granting and refusal of instructions is also assigned as error. Most of these alleged errors were assigned on the former appeal of this case, but they were not deemed of sufficient merit to warrant a discussion of them for the guidance of the trial court after the remand of the cause, since they were granted or refused in accordance with the holding in the Skinner and Blakely cases.
Finally, it is urged that the cause should be reversed because of an alleged improper and inflammatory argument made to the jury by one of the attorneys for the plaintiff. (Hn 6) It had been stipulated and agreed that since the defendant Burnie was no longer in the employ of Montgomery Ward and Company and was not available as a witness, his testimony on the former trial could be introduced by either of the parties subject to objection for incompetency, etc. One of the attorneys for the plaintiff read to the jury from the former record his examination of the defendant Burnie, but the attorney for the defendant Montgomery Ward and Company did not read the testimony of the said Burnie given in response to questions asked on behalf of the defendants. In this situation the attorney for the plaintiff in his argument to the jury said, "This man Burnie, who did not show up at this trial, and whose testimony counsel for Montgomery Ward did not read to you that they took before" and whereupon an objection to that remark was made, and was overruled, and the attorney for the plaintiff, continuing, said "We read the questions and answers that were propounded to him by the plaintiff, but the questions and answers that were propounded by Montgomery Ward and Company, which are in the record here, were not read to you." An objection was again made and overruled. However, we find no reversible error in these comments, if any error at all.
If, therefore, a remittitur to the extent of $7,500, so as to reduce the judgment of the trial court from the sum of $15,000 to $7,500, is entered as hereby required, the cause will be affirmed; otherwise, the same will be reversed and remanded for the assessment of damages only.
Affirmed with remittitur.