Baldwin Piano Co. v. Jones

• Decision Date: 03 December 1928
• Docket Number: 27502
• Citation: 119 So. 182,152 Miss. 254
• Court: Mississippi Supreme Court
• Parties: BALDWIN PIANO CO. et al. v. JONES. [*]

119 So. 182

152 Miss. 254

BALDWIN PIANO CO. et al. v. JONES. ^[*]

No. 27502

Supreme Court of Mississippi

December 3, 1928

Division B

APPEAL from circuit court of Marion county, HON. J. Q. LANGSTON Judge.

Action by C. V. Jones against the Baldwin Piano Company and another based on a charge of slander. From a judgment for plaintiff defendants appeal. Reversed and remanded.

Judgment reversed and remanded.

R. H. Dale and Rawls & Hathorn, for appellants.

Let us consider the words of the instruction: "Mr. Jones had made way with the company's money." Are these words actionable per se? From all the authorities we have been able to consult we do not find them so. To say that Mr. Jones made way with the company's money certainly does not charge him with the crime of larceny nor with any other crime. 36 C. J. 1208; Harrison v. Manship, 22 N.E. 87; Hinesley v. Sheets (Ind.), 63 Am. St. Rep. 356; L. & N. R. R. Co. v. Malone (Ala.), 76 So. 296; Coleman v. Playsted (N. Y.), 36 Barb. The case of Jones v. Edwards, 57 Miss. 28, we think clearly holds that the court was in error both in admitting the objected testimony, and in the giving of the instruction, for certainly if the testimony, that "he said that Jones had made way with some of the company's money" was a variance from the declaration, then the giving of the instruction complained of would constitute much more vital error. Rogers v. Kline, 56 Miss. 816; Woodville v. Pizzati, 119 Miss. 85; 17 R. C. L. 265; Dixie Fire Ins. Co. v. Betty, 101 Miss. 880; Grand Union Tea Company v. Lord, 231 F. 390, Ann. Cas. 1918C. 1118; Davis v. Wood, 95 Miss. 432, 48 So. 961; Moore Stave Co. v. Wells, 111 Miss. 796, 72 So. 228; Shaw v. Killingsworth, 106 So. 138; Marion v. Davis, 114 So. 357.

Davis & Conner, for appellee.

The instruction had reference to the statement made at the house as related by both the Mrs. Bilbos, in which there is no material conflict, and when it says, "made way with some of the company's money," can mean nothing more or less than in the way as related by the witnesses who related what was said at this time and place. Again this instruction must be read in the light of all the other instructions given and we invite the court's attention to the first instruction given for the defendants which is as follows: "The court instructs the jury for the defendant that unless the plaintiff proves by a preponderance of the evidence that the defendant Youse, uttered the alleged slanderous remarks, and at the time and the place and in the presence of the persons named in the declaration and amended declaration and that they were made maliciously and out of a spirit of ill will and hatred for the defendant and for the purpose of injuring him in his good name, fame and credit, and for the purpose of bringing him into public ridicule and shame, you should return a verdict for the defendant." This instruction tells the jury that before they can return a verdict they must believe from the evidence that Youse uttered the remarks alleged in the declaration. The next instruction for the defendants tell the jury the same thing, so that the jury could not be misled by reason of the instruction complained of. See Cumberland T. & T. Co. v. Jackson, 95 Miss. 79; Y. & M. V. R. R. Co. v. Williams, 87 Miss. 224; Miss. Cent. R. R. Co. v. Hardy, 88 Miss. 732; Hitt v. Terry, 92 Miss. 671; Miss. Cent. R. R. Co. v. Lott, 118 Miss. 816; McTighe, Highey & McTighe v. Johnson, 114 Miss. 826; Brister v. Dunaway, 115 So. 36; Jackson v. Lewis, 108 So. 156, 142 Miss. 806; A. & V. R. Co. v. Fountain, 145 Miss. 515, 111 So. 153; Pannell v. Glidewell, 146 Miss. 567, 111 So. 571; Hemming v. Rawlings, 144 Miss. 643, 110 So. 118; G. & S. I. R. R. Co. v. Simmons, 117 So. 345; Johnston v. Turner (Fla.), 47 So. 570.

Argued orally by C. V. Hathorn, for appellant, and T. B. Davis, for appellee.

OPINION

PACK, J.

Appellee, plaintiff in the court below, instituted this suit against the Baldwin Piano Company, and its agent, W. H. Youse, based on a charge of slander. The jury rendered a verdict in favor of the plaintiff, upon which judgment was entered by the court; and from this judgment there was an appeal to this court.

It appears that Jones had been a local dealer in pianos for the defendant company at Columbia, and formerly at Laurel. Youse, the agent of the company, went to Columbia to adjust some controversy between Jones and the company. Upon reaching there and finding Jones absent, Youse accompanied by one Armstrong, another agent of the defendant company, drove out several miles into the country to the home of J. A. Bilbo, whose daughter had recently married Jones. Neither Jones nor his bride was at the Bilbo home at the time of Youse's visit. Jones had sold the Bilbos a Baldwin piano, taking notes for a part of the purchase price, and the adjustment of this sale and these notes was the purpose of Youse's visit to the Bilbo home. Youse talked to the wife of J. A. Bilbo in the presence, as it is alleged, of Mrs. Vardaman Bilbo and Armstrong, and during the course of conversation, he, the declaration avers, in referring to Jones, said:

"C. V. Jones has stole everything he could from the Baldwin Piano Company and he is dodging me now, that we are going to send him to the penitentiary for stealing this money. . . . He has been keeping his own niece as his wife, and you had better go and get your daughter."

Upon the trial plaintiff was permitted, over objection, to prove that Youse and Armstrong, after having the alleged conversation with the Bilbo women, went to the field where J. A. Bilbo was working and there said to him "that Jones had made way with the company's money, and that he was a rascal, and they were after him and wasn't a decent one in the family."

It is contended there was a fatal variance between the declaration and the proof; that the objectionable words set out in the declaration charged the appellee with being a thief, whereas the remarks alleged to have been made to Mr. Bilbo do not charge theft. It is further contended that the words imputed to Youse were not actionable per se, although this was the effect and import of an instruction given for the plaintiff, which reads:

"The court instructs the jury in this case that if they believe from the testimony in the case that the defendant, Youse went to the home of J. A. Bilbo and there said to Mrs. Bilbo, in the presence of Mr. Armstrong and Mrs. Vardaman Bilbo that Mr. Jones had made way with some of the company's money and that he said these words while acting within the scope of his employment and in connection with the business of the company, and said them maliciously and that no duty rested upon him to make such statements and that the circumstances under...