Darnell v. Davis, 3595

• Decision Date: 13 March 1950
• Docket Number: No. 3595,3595
• Citation: 58 S.E.2d 68,190 Va. 701
• Parties: J. E. DARNELL v. J. James DAVIS. Record
• Court: Virginia Supreme Court

Page 68

58 S.E.2d 68

190 Va. 701

J. E. DARNELL v. J. James DAVIS.

Record No. 3595.

Supreme Court of Appeals of Virginia.

March 13, 1950.

Vivian L. Page and Walter A. Page, for the plaintiff in error.

James G. Martin & Sons, for the defendant in error.

JUDGE: MILLER

MILLER, J., delivered the opinion of the court.

J. James Davis, plaintiff (defendant in error here), instituted an action at law for damages against J. E. Darnell, defendant (plaintiff in error here). The parties litigant will be referred to in accordance with the positions occupied by them in the lower court.

The declaration was in trespass on the case and contained two counts. The first charged malicious prosecution. The second is based upon sec. 5781, Code, 1942 (sec. 8-630, Code, 1950), which is commonly known as the statute of insulting words. The latter count alleges that defendant maliciously wrote and published of and concerning the plaintiff insulting words. The written words which are asserted to be actionable are set forth in extenso.

A verdict for $3,000 was returned in favor of plaintiff. Upon motion of defendant it was set aside by the trial court as being excessive, plaintiff was placed upon terms to accept $2,000, and judgment was entered for that lesser sum. It was a general verdict and thus fails to reveal whether it was rendered upon the first or second count or upon both. Though it was set aside and judgment entered for a lesser sum, that judgment stems from the finding of the jury in favor of plaintiff and likewise fails to disclose upon what count or counts it was based.

Plaintiff is an attorney at law, practicing his profession in the city of Norfolk and vicinity. He was acting as administrator of the estate of defendant's father, who had recently died. He had also been employed by defendant to collect rents due him from several tenants who occupied an apartment house previously owned by the father but then owned by defendant and located at 311 W.14th St., Norfolk, Virginia.

The rents owing by the several tenants were collectible every two weeks and for that purpose plaintiff was in the habit of calling at the apartment building every other Sunday and securing the rents from Mr. and Mrs. Duncan, the resident managers, to whom the tenants personally paid the same.

About midday on Sunday, July 18, 1948, plaintiff made his usual trip to secure such rents as had been paid by the tenants. He was informed by the resident managers that they had received a letter from defendant instructing them not to pay him any more rent. They, however, offered to pay what they then had on hand, which he declined, and thereupon left the premises. At that particular time, defendant was sitting on the front porch of the apartment building and seen by plaintiff, but they had no conversation nor communication whatever with each other.

On July 19, 1948, plaintiff received a telephone call from the Police Department that there was a warrant for his arrest at the Berkley Precinct of Norfolk city. He thereupon reported to that precinct and upon arrival, he was served with a warrant that defendant had sworn out before a justice of the peace. It charged him with having on the 18th day of July, 1948, unlawfully violated 'The ordinances of the City of Norfolk, in that he did trespass on private property, 311 W.14th St., 12-30 P.M.'

Plaintiff entered into recognizance in the penalty of $100 conditioned to appear on July 20, 1948, in the police court to answer the charge. Upon reporting to police court that day, he learned that the warrant had been, without his knowledge or consent, withdrawn and dismissed the same day it had been issued. That dismissal had been secured by defendant through his having signed and presented a petition or written request to the justice of the peace who issued the warrant, which is as follows:

'I, J. E. Darnell, hereby acknowledge satisfaction for injuries I have sustained at the hands of J. J. Davis, now under recognizance to answer for misdemeanor, in this that he, on the 18th day of July, 1948, in said city did unlawfully trespass on private property and therefore pray that said recognizance be discharged.'

The statute under which this dismissal of the prosecution and discharge of the recognizance was had is section 4849, Code, 1942 (sec. 19-12, Code, 1950).

That part pertinent to this inquiry reads:

'When a person is in jail or under a recognizance to answer a charge of assault and battery or other misdemeanor, * * *, for which there is a remedy by civil action, * * *, if the party injured appear before the judge or justice, who made the commitment, or took the recognizance, or before the court in which the indictment is pending, and acknowledge in writing that he had received satisfaction for the injury, such judge, justice, or court may, in his or its discretion, by an order, supersede the commitment, discharge the recognizance, or dismiss the prosecution, upon payment by the defendant of costs accrued to the Commonwealth, or any of its officers.'

Numerous errors are assigned by defendant to rulings of the court, and he insists that the judgment should be set aside and a new trial awarded.

Defendant says that there can be no recovery on the second count because the words written and published by him under the circumstances obtaining (a) were not 'words which from their usual construction and common acceptation are construed as insults * * *,' and (b) the communication complained of was written and published pursuant to sec. 4849, Code, 1942 (sec. 19-12, Code, 1950), in a judicial proceeding; was relevant and pertinent to the matter involved and therefore absolutely privileged.

These defenses were sufficiently presented through demurrer, tender of appropriate instructions, and a motion to set aside the verdict.

Prior to 1940, sec. 5781, Code, 1919, upon which plaintiff's second count was based, read as follows:

'All words which, from their usual construction and common acceptation, are construed as insults and tend to violence and breach of the peace, shall be actionable. No demurrer shall preclude a jury from passing thereon.'

As the statute then stood, the question of whether or not the words complained of were insulting and tended to violence and breach of the peace was a matter to be determined by the jury. That statutory right and province of the jury was limited only by the power of the court 'to correct any manifest departure from right and justice' on their part. Corr v. Lewis, 94 Va. 24, 26, 26 S.E. 385, and Montgomery Ward & Co. v. Nance, 165 Va. 363, 182 S.E. 264.

In 1940, the statute was amended by omitting its last sentence. Acts 1940, p. 294. The deletion of that sentence gave the court the same power and control over actions brought under this section that it exercised over common law actions for libel and slander. Rosenberg & Sons v. Craft, 182 Va. 512, 528, 29 S.E. (2d) 375, 151 A.L.R. 1095.

We are therefore called upon to determine whether, under the circumstances disclosed by the evidence, the words that were written and published by defendant could be considered and construed by fair-minded men as insulting and tending to violence and breach of the peace. If they could be reasonably so...