Conroy v. Breland

• Decision Date: 12 June 1939
• Docket Number: 33748
• Citation: 185 Miss. 787,189 So. 814
• Court: Mississippi Supreme Court
• Parties: CONROY v. BRELAND et al

189 So. 814

185 Miss. 787

CONROY v. BRELAND et al

No. 33748

Supreme Court of Mississippi, Division A

June 12, 1939

Suggestion Of Error Overruled July 8, 1939.

APPEAL from the circuit court of Copiah county HON. J. F. GUYNES Judge.

Libel action by Ora G. Conroy against A. D Breland and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

M. S McNeil of Hazlehurst, and R. L. Jones, of Brookhaven, for appellant.

When the plaintiff executed and delivered the deed of trust to Breland in his capacity as president of the Truckers Exchange Bank, she had both the moral and legal right to have said deed of trust remain in the condition in which it was at the time she executed and delivered same, and Breland and the bank owed her the duty of preserving the said instrument as it was executed and delivered, and the fraudulent and corrupt alteration thereof by the president of the bank was a violation of both this moral and legal right of the plaintiff.

Section 931, Code of 1930; Stokes v. Newell, 165 So. 542; Section 24, Constitution of Mississippi.

We submit that the defendants owed Mrs. Conroy the legal duty of refraining from altering the instrument as executed by her and owed her the legal duty, if they filed it for record, to file it in the same condition as it was when she delivered it to them, and that the violation of this right proximately caused the injuries and damages stated in the declaration.

The defendants, as shown by the declaration, not only violated this right of the plaintiff but they falsely swore in the bankruptcy court that she had executed the deed of trust, and, as shown by the declaration, wrote letters to the owners of the property, falsely charging Mrs. Conroy had executed a deed of trust on their property.

Magouirk v. Western Union, 79 Miss. 632.

The announcement of the Mississippi Supreme Court in the case of Telegraph Co. v. Rogers, 68 Miss. 756, that damages for mental suffering are allowable "in cases of wilful wrong, especially those affecting the liberty, character, reputation, personal security, or domestic relations of the injured party" was followed in the Magouirk case, supra, and in U.S. R. & G. Co. v. State, 121 Miss. 369, in which case a lady, on arrival at Wesson, Mississippi, delivered her suit case to a transfer man, and the town marshal suspecting the transfer man of transporting liquor illegally, searched Mrs. Hardy's suit case, and she sued, claiming damages for mental pain, suffering, shame and mortification.

Saenger Theatres, Inc., v. Herndon, 180 Miss. 791.

Certainly under the allegations of the declaration, the defendants were guilty of several wilful wrongs, and as a result of such wilful wrongs, the character and reputation of the plaintiff were affected.

One's reputation is within the constitutional guaranty of personal security.

12 C. J. 941, sec. 449; 36 C. J. 1148, sec. 11.

This is not the ordinary suit of libel and slander for words spoken or printed but is a suit for damages to the injured party naturally flowing from the commission of a criminal act. The declaration charges the defendants with having altered a deed of trust in violation of Section 931, Code of 1930, and charges and alleges that as a result of such forgery and subsequent acts, the plaintiff's reputation was injured, and she was caused to suffer embarrassment and humiliation.

The fact that the suit may be one of first impression in this state or one of novelty in the specific injury, does not take it from the general rules governing liability for a breach of duty of one person to another.

Teche Lines, Inc., v. Bateman, 162 Miss. 404; 16 C. J., page 97, sec. 68; 11 C. J., page 6, sec. 11.

Wherever there is carelessness, recklessness, want of reasonable skill, or the violation or disregard of a duty which the law implies from the conditions or attendant circumstances, and individual injury results therefrom, an action on the case lies in favor of the party injured, although there is some conflict of opinion where the negligence is the immediate cause of the injury. This is equally true where the neglect is of a corporate duty by a corporation.

11 C. J., page 7, sections 12 and 13; 1 C. J., page 972, sec. 67; Piper v. Hoard, 107 N.Y. 73, 1 A. S. R. 789; Kujek v. Goldman, 150 N.Y. 176, 55 A. S. R. 670; Foot v. Card, 58 Conn. 1, 18 Am. St. Rep. 258; Pierce v. Proprietors of Swan Point Cemetery, 10 R. I. 227, 14 Am. Rep. 667.

A right of action for slander or libel is personal to the bankrupt and does not pass to the trustee.

Dent v. Town of Mendenhall, 139 Miss. 271; 11 U.S.C. A., Sec. 110, note 33 to 340, 338; Dillard v. Collins, 25 Grat. (Va.) 343; Whitaker v. Gavit, 18 Conn. 527; Milwaukee Mut. Fire Ins. Co. v. Sentinel Co., 81 Wis. 207, 51 N.W. 440, 15 L. R. A. 627; Hancock v. Caffyn, 8 Bing. 358, 21 E. C. L. 318; Wright v. Greensburg First Nat. Bank, Fed. Cas. No. 18, 078; Irion v. Knapp, 132 La. 60, 60 So. 719, 43 L. R. A. (N. S.) 940.

We respectfully submit that the lower court was in error in sustaining the demurrer, and that this case should be reversed and remanded for trial on its merits.

W. S. Henley, of Hazlehurst, for appellee.

Mrs. Conroy had a right to mortgage fixtures.

6 Am. Jur., pages 215 and 216; Baggett v. McCormack, 73 Miss. 552, 55 Am. St. Rep. 554, 19 So. 89; 2 Blackstone's Commentary page 452; Blue v. Herkimer Nat. Bank, 30 F.2d 256; Bonded Building & Loan Asso. v. Konner, 166 A. 79; Central Finance Corporation v. Norton-Morgan Commercial Co., 205 P. 810; Code of 1930, sections 2130 and 3352; Community State Bank v. Martin, 258 P. 498; Columbus Buggy Co. v. Turley & Parker, 73 Miss. 529; Code of Virginia, sec. 5224; Carr v. Lester, 8 So. 35; Dysort v. Hamilton, 11 Tenn.App. 43; Doty v. O'Neal, 272 Ill.App. 212; Everett v. Brown, 20 N.W. 743; Fidelity & Deposit Co. v. Sturtevant Co., 86 Miss. 509; First Nat. Bank of Hudson, S. C. v. Maxwell, 200 N.W. 401; General Motors Acceptance Corp. v. Morgan, 1 Fed. Sup. 574; Grand Rapids Showcase Co. v. Trustee of Loeb's, Inc., 279 F. 269; Hastings v. Wise, 297 P. 482; Howe v. Kerr, 69 Miss. 311; Indiana Motors Corp. v. Atkinson, 65 F.2d 689; 2 Kent, Com. 3d., page 585; Loden v. Payne Auto Co., 296 S.W. 78; Lee County Savings Bank v. Snodgrass Bros., 166 N.W. 680; Merriman v. Martin, 298 P. 95; McCulley v. Blanchard, 169 S.E. 746; Pierre v. Pierre, 232 N.W. 633; Roachell v. Gates, 47 S.W.2d 35; Tope v. Brattain, 21 P.2d 241; Walters v. U.S. F. & G., 288 P. 1044.

The execution of a deed of trust on property belonging to another does not constitute embezzlement.

Code of 1930, sections 889 and 893; 20 C. J. 426; Clark v. State, 109 Miss. 737, 69 So. 497; 65 C. J. 38; Holt v. Ashby, 150 Ky. 612; Ivers, etc., Piano Co. v. Allen, 63 A. 735; Knight v. State, 44 So. 585; Renaker v. Gregg, 147 Ky. 368.

The declaration does not show any conduct or language charging plaintiff with false pretense.

Bensen & Marxer v. Roger, 168 N.W. 881; Branch v. Knapp & Co., 222 Mo. 580; 25 C. J. 589 and 608; Cooper v. Seaverns, 81 Ken. 267; First National Bank v. Maxwell, 200 N.W. 402; Illinois Cent. R. R. Co. v. Wales, 171 So. 536; Krup v. Corley, 95 Mo.App. 650; Louisville Gas & Elec. Co. v. Wulf, 179 S.W. 232; Rio Grande Valley Gas Co. v. Caskey, 33 S.W.2d 848; Smith v. Missouri F. & G. Co., 177 S.W. 1242; Wood v. Bibbins, 32 Barb. 315; Whitley v. Newman, 70 S.E. 686; Woodville v. Pizatti, 80 So. 491; Winton v. Patterson, 119 So. 161.

It is the rule in Mississippi that "plaintiff suing for slander must allege and prove special damages, unless language complained of is actionable per se."

W. T. Farley v. Bufkin, 132 So. 86; Holliday v. Maryland Cas. Co., 75 So. 765; 1 Encyc. Pl. & Pr. 771.

It is our position that the declaration in this cause does not allege special damages.

Newell on Slander and Libel (4 Ed.), page 824; Odgers on Libel and Slander, page 371; Gatley on Law and Practice of Libel and Slander, page 71; Shaw Cleaners & Dyers v. Des Moines Dress Club, 86 A. L. R. 839; Holliday v. Maryland Cas. Co., 115 Miss. 56, 75 So. 764.

The only damage which the plaintiff alleged was injury to her feeling, which has been universally held not to constitute special damages.

Newell on Libel & Slander; Gatley on Law and Practice of Libel & Slander; Ferguson v. Houston Press Co., 1 S.W.2d 387; Clark v. Morrison, 156 P. 429.

Of course, when actions of libel and slander are actionable per se, juries are permitted to enter into the realm of speculation and presume damages and it is hard to establish any rules with respect to such matters. However, special damages must be absolutely certain and capable of estimation in dollars and cents as a pecuniary loss, and not left to the realm of speculation. As stated in the Ohio case, Cleveland Leader v. Nethersole, 95 N.E. 735, juries should not be permitted to return unanimous verdicts just because the plaintiff is a lady, especially where special damages are necessary in order to sustain the action.

Snavely v. Booth, 176 A. 649.

While novelty may not be conclusive against the right to maintain a cause of action, it is persuasive that if there be no precedent such right does not exist.

1 Am. Jur., page 413; Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 59 L. R. A. 478.

The present case is not novel upon the facts. No doubt every law suit has some peculiar circumstances connected with it, but the question of alteration of instruments is a subject as old as written contracts. A definite remedy with thousands of precedents has been established upon the subject.

Heretofore lawyers have been content for their clients to avail themselves of the remedies provided in the cases of alteration of instruments. In the present case...