Dedeaux v. King

• Citation: 92 Miss. 38,45 So. 466
• Decision Date: 03 February 1908
• Docket Number: 13109
• Court: United States State Supreme Court of Mississippi
• Parties: JEFFERSON D. DEDEAUX v. JOHN R. KING

45 So. 466

92 Miss. 38

JEFFERSON D. DEDEAUX v. JOHN R. KING

No. 13109

Supreme Court of Mississippi

February 3, 1908

FROM the circuit court of Harrison county, HON. WILLIAM H. HARDY Judge.

Dedeaux appellant, was plaintiff in the court below, and King appellee, defendant there. From a judgment sustaining defendant's demurrer to the declaration and dismissing the case plaintiff appealed to the supreme court.

The opinion of the court states the facts.

Affirmed.

Brown &amp Owen, for appellant.

The declaration alleges that appellee, King, was a manager of a municipal election, that appellant, Dedeaux, being a legally qualified voter of the municipality, asked appellee for a ballot in order to vote, whereupon appellee, King, said to the appellant, "you cannot vote because you are a convict, and convicts cannot vote here." The declaration further alleges that "the said words were spoken then and there in the presence of divers persons, with intent to insult plaintiff, and that such words are, from their usual construction, and common acceptation, calculated to lead to a breach of the peace."

It has been decided in Scott v. Peebles, 2 Smed. & M., 546, that a declaration averring that defendant spoke the words contrary to the statute, with a view to insult the plaintiff and to lead him to commit violence and a breach of the peace, brings the case within the statute.

Only two things are necessary to bring words spoken of another within the statute: first, they must be insulting, and second, they must be calculated to lead to a breach of the peace. Crawford v. Melton, 12 Smed. & M., 328.

The demurrer admits that the appellant, Dedeaux, was, at the time he sought to vote, a legally qualified elector of the municipality, thus negativing the idea of appellant's being a convict so as to disqualify him from voting in the election.

Contention is made by counsel for appellee that the words spoken were privileged, inasmuch as appellee was an officer appointed to hold an election. We have however failed to find any authority giving immunity to even higher officials for slandering those with whom they have to deal in the discharge of official duties. In the case of Jarnigan v. Fleming, 43 Miss. 710, this court, in discussing privileged communications, said: "Expressed or actual malice need not be shown except in cases of privileged communications. In such cases, the malice being repelled, the plaintiff must prove the actual malice." This case is conclusive that where a defendant, in a case of slander, sets up privileged communication as a defense, he must first exculpate himself by sufficient proof that the communication was privileged.

Instead of deciding upon declaration and demurrer, the court below should have heard the evidence in the case regularly upon its merits; and then, if it were apparent that the communication was privileged, a peremptory instruction would have been awarded. Fellman v. Dreyfous (La.), 17 So. 422, 47 La. Ann., 907.

Rucks Yerger, for appellee.

The appellant's declaration shows circumstances repelling the idea of malice, and, further, that the alleged slanderous words were privileged. Hence the declaration was demurrable. Jarnagan, v. Fleming, 43 Miss. 725.

A communication made in good faith upon any subject matter in which the party communicating has an interest, public or private, either legal, moral or social, if made to a person having a corresponding interest or duty, is privileged. 13 Am. & Eng. Encyc. Law (1st ed.), 403.

The appellant's declaration shows that, when the appellee made the alleged slanderous remarks, he was in the performance of a public duty to see that no disqualified person voted. Code 1906, § 4151. Furthermore, appellee is alleged to have made such remarks, at the time the appellant was seeking to vote, and moreover, verbally to the appellant.

The circumstances alleged in the declaration repel the idea of malice, and no express malice is charged. Nor are the words said to have been used by appellee slanderous per se. 13 Am. & Eng. Encyc. of Law, 333, 349. And when words are not actionable per se, special damage must be alleged. 13 Am. & Eng. Encyc. of Law 351.

It is not alleged in...