Doherty v. L. B. Price Mercantile Co.

• Decision Date: 16 April 1923
• Docket Number: 22688
• Citation: 132 Miss. 39,95 So. 790
• Court: Mississippi Supreme Court
• Parties: DOHERTY v. L. B. PRICE MERCANTILE CO

95 So. 790

132 Miss. 39

DOHERTY v. L. B. PRICE MERCANTILE CO

No. 22688

Supreme Court of Mississippi

April 16, 1923

1. LIBEL AND SLANDER. Language clearly imputing embezzlement actionable per se; damage implied from spoken words slanderous per se.

Language which clearly imputes that one is guilty of the crime of embezzlement is actionable ^r se, and damage is implied by law from the speaking of words which are slanderous per se.

2 CORPORATIONS. Liable for slanderous words of agent within scope of employment and unnecessary to show corporation's knowledge or ratification.

A corporation is liable for slander uttered by its agent acting within the scope of his employment and in the performance of his duties touching the matter in question and in such case it is unnecessary for a plaintiff to show that the slanderous words were spoken with defendant's knowledge or with its approval, or that it ratified the act of the agent.

HON. R S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Suit by B. O. Doherty against the L. B. Price Mercantile Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Robert L. Bullard, for appellant.

The several instructions granted the defendant contain four erroneous elements, viz: 1. They submit to the jury as a controverted fact to be found by them on the evidence whether or not the words alleged to be slanderous were spoken by Hohmeyer, when the same was not disputed but was admitted by Hohmeyer to be true. 2. They contradict the legal principle that damage is implied from the speaking of words slanderous per se and inform the jury that actual damage must be proved before the plaintiff could recover anything. 3. They inform the jury that before the plaintiff can recover they must find that the defendant actually employed Hohmeyer to slander the plaintiff, or specifically authorized him to do so, and, 4. The instructions invite the jury to find that the slanderous words were not spoken by Hohmeyer in the line of his employment, when it is admitted that he was in the very act of trying to secure a settlement of account between the plaintiff and the defendant, and the statement or threat was made for the very purpose of coercing the settlement, the defendant now says without reservation, that Hohmeyer is satisfactory to them.

1. As to the first proposition, it is as vicious to assume by instruction that an undisputed fact is disputed and thus subject to finding by the jury, as to assume as proved a disputed fact.

The instruction appearing on page 6 is in these words: "The plaintiff cannot recover on account of anything done or said by H. K. Hohmeyer to the plaintiff except on account of the language set out in the declaration, and not then unless they believe that the said H. K. Hohmeyer spoke the language set out in the declaration as spoken by him." Let this instruction be considered in connection with the following question asked by the defendant's counsel to Hohmeyer, the defendant's manager and witness, and his answer thereto, viz: "Q. Mr. Doherty complains against the company that you threatened to have him arrested and put in jail for embezzlement, unless he signed some receipts; Did you do that? A. I did." (Bottom of page 4 and top of page 41, Steno. notes). In all the other instructions the speaking of the words was submitted to the party. This was the submission of a false issue and was erroneous.

See the following authorities: 1 Blashfield on Instructions to Juries, sec. 36, wherein it is said: "It is the province of the jury to determine the existence or non-existence of disputed facts, but it would be absurd to allow or require them to pass upon facts as to which there is no dispute, and which are admitted by the parties. Accordingly, instructions are held to be erroneous which treat as an issue and submit to the jury facts which are admitted by the pleadings, or upon the trial."

28 Cyc. 1671--"A requested instruction which assumes that the existence of such facts is an open question is properly refused, and the giving of such instructions is erroneous."

Cited in support of the last clause of the foregoing quotation is Southern Ry. Co. v. Vaughn, 86 Miss. 367, 38 So. 500, in which this court said: "It is conceded that, if the appellant transported the machine and delivered the same to its connecting carrier without unreasonable delay and in good condition, its responsibility for the machine ceased, so far as this suit is concerned, with said delivery. This is expressly recognized by the instructions granted for appellee, which predicates recovery solely upon the theory that the railroad company negligently failed to deliver the machine to its connecting carrier. The same legal proposition is correctly stated in the instructions granted the appellant. But in the face of the express and uncontradicted admission as to the prompt transmission and delivery, in good order by appellant, there was no conflict of testimony as to the vital point in the case, no proof of any negligence on the part of appellant, and consequently nothing on which to base an instruction."

This would seem to leave nothing further to be said here. But for the fact that it was necessary, if such is true, to submit for the jury to find, "and that he meant thereby that the plaintiff was guilty of embezzlement, and if said words were heard and so understood by others," the plaintiff was entitled to a peremptory instruction upon the whole case. It is certainly reversible error to submit for them to find, as a disputed fact, that the words were spoken or not spoken.

2. There was a fatal conflict in the instructions which left the jury with no rule to guide them as to question of damage. At the request of plaintiff the jury had been instructed, "The law implies both malice and injury from the speaking of the slanderous words."

In plaintiff's instruction on bottom of page 6, this is flatly contradicted. The jury are informed "even though you might believe from the evidence that the plaintiff was told by H. K. Hohmeyer that unless he signed the receipts that Hohmeyer would have him arrested and put in jail for embezzlement, yet the plaintiff cannot recover (notwithstanding the words from the speaking of which the law presumes damage) unless he has proved damage sustained by such statement, and unless the plaintiff has proved damages by a preponderance of the testimony, it is the sworn duty of the jury to find for the defendant."

That the law presumes damages sustained from the publication of words slanderous per se needs no citation of authority, yet by this instruction the jury are told that he cannot recover because of any such presumption, but only if he has proved damages sustained by such statement."

Because there was no evidence to prove any specific damage, nor any damage other than that which the law always presumed in like case, the jury were instructed to find for the defendant outright, and they did so.

3. One of the most vicious instructions is the one on page 8. It requires of the jury to find for the defendant "Unless they believe from the evidence that the defendant hired or employed Hohmeyer as its agent to quarrel, dispute and fight with plaintiff, and to accuse him of embezzlement--or that quarreling, disputing, fighting and accusing the said B. O. Doherty of embezzlement--was within the scope of the labors and duties for which the defendant hired the said H. K. Hohmeyer, then, under the law, it is the duty of the jury to find for the defendant."

The jury are here told that the evidence must show that Hohmeyer was actually employed by the defendant to slander Doherty. In other words they must find from the evidence that a failure on the part of Hohmeyer to "quarrel," "dispute" and fight with plaintiff, and to slander him, was a failure to do his duty under his employment. Whatever else it was his duty as an employer to do, it must also have been his duty to slander plaintiff before he can recover. They must find that to accuse Doherty of embezzlement was within the labors (was one of them) which the defendant hired the said Hohmeyer to do."

This was requested by counsel and granted by the court with the case of Rivers v. Y. & M. V. Ry. Co., 90 Miss. 196, 43 So. 471, under their very eyes. All through the case and in the very instructions, it is assumed that the words were spoken by him in the act of trying to secure a settlement, and for the very purpose of hastening it. He admits that he said: "If you don't sign these receipts and pay that money (to his employer, for whom he was acting) I will have you arrested and put in jail for embezzlement." If he spoke the words at all, and he admits he did, he spoke them in furtherance of his master's business.

Of course there was no evidence that the defendant had hired Hohmeyer to slander plaintiff, and when the court directed the jury to find for the defendant unless they were convinced of that by the evidence, they could not have found any other verdict without disobeying the instructions of the court.

4. The instructions are erroneous in another particular viz: they submit another admitted fact to the finding of the jury. It is not only admitted that Hohmeyer spoke the word, but that he was in his master's office, engaged about his master's business, when he did it, and in the act of doing it. The authorities showing that the submission of this question to the jury was error have already been cited and they will not here be repeated.

The instruction covering page 9 offends against each of the three principles already discussed. It assumes that the jury finds that the plaintiff and Hohmeyer "engaged in a dispute quarrel or...