Dixie Fire Insurance Co. v. Betty

• Decision Date: 04 June 1912
• Citation: 58 So. 705,101 Miss. 880
• Court: Mississippi Supreme Court
• Parties: DIXIE FIRE INSURANCE CO. v. R. L. BETTY

58 So. 705

101 Miss. 880

DIXIE FIRE INSURANCE CO. v. R. L. BETTY

Supreme Court of Mississippi

June 4, 1912

March 1912

APPEAL from the circuit court of Clay county, HON. T. B. CARROLL Judge.

Suit by R. L. Betty against the Dixie Fire Insurance Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

McLaurin Armstead & Brien, for appellant.

The letter of November 30, 1909, tendering an apology both to Mr McGee and Mr. Betty through Mr. McGee from Mr. Powers who had been informed from Betty's office of the actual condition of affairs, was an absolute defense to this suit and the court declined an instruction on that idea.

In 18 Am. & Eng. Ency. Law., p. 1075 (Libel & Slander), it is said:

"But it will be a good defense to an action if there is an agreement between the parties to accept the publication of mutual apologies and the apologies are afterwards published."

But there is no way in this case for the court to undertake to determine to which count in the amended declaration this verdict must be ascribed. As said by the supreme court of Mississippi in the Abrams Case, supra, 84 Miss., whether the verdict was predicated on the first count of the amended declaration wherein it is alleged that these words were spoken by Powers, the special agent, with a view to insult the plaintiff Betty, and lead him to do violence and breach of the peace, or whether is was ascribed to the second count in the declaration, a common law action for slander.

We insist that the first count in the declaration predicated on Sec. 10 of the Code of 1906 of actionable words, is entirely "personal" and directed against the person speaking the words, and under no circumstances could such a suit be brought against the insurance company under the actionable word statute for language spoken by any alleged agent.

The court will find this contention fully discussed in the following authorities: Manufacturing Co. v. Taylor, 124 A. S. R. 90 (150 Ala. 574), (43 So. 210); 13 Cooley on Torts, p. 124; Ency. of Pl. & Pr., p. 30.

This actionable word statute, when considered in connection with its history, demonstrates beyond all question that it is entirely "personal" from the fact that it is known and styled as the antidueling statute, and passed June 13, 1822, and known as the "Act to suppress dueling." See Crawford v. Melton, 12 Smedes & Marshall, 328.

Of course, when considered in the light of an act to suppress dueling, it necessarily means to prevent personal difficulties, and is an act directed against the person speaking the words. This is further shown from the act, wherein it provides that a plea, exception or demurrer shall not be sustained to preclude a jury from passing thereon who are the sole judges of the damages sustained.

Now, in the annotations under this chapter of the Code of 1906, the court will see that the truth of the words is not a defense that they were spoken out of the presence of the plaintiff is not a defense; therefore the defenses are not the same as the common law action of slander, and it clearly appears that it is a distinct and separate cause of action, added onto this common law action of slander, which is not permissible, we respectfully submit, and in permitting the case to go...