Bass v. Burnett

• Decision Date: 14 January 1929
• Docket Number: 27283
• Court: Mississippi Supreme Court
• Parties: BASS v. BURNETT. [*]

119 So. 827

151 Miss. 852

BASS v. BURNETT. ^[*]

No. 27283

Supreme Court of Mississippi

January 14, 1929

Division A

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.

HON. G. P. LONG, Judge.

APPEAL from circuit court of Alcorn county, HON. C. P. LONG, Judge.

Action by W. D. Bass against T. F. Burnett. Judgment for defendant, and plaintiff appeals. Affirmed.

Judgment affirmed.

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.

OPINION

COOK, J.

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...