Furr v. Speed

• Decision Date: 08 February 1897
• Citation: 74 Miss. 423,21 So. 562
• Court: Mississippi Supreme Court
• Parties: MRS. J. C. FURR v. BENJAMIN F. SPEED

21 So. 562

74 Miss. 423

MRS. J. C. FURR v. BENJAMIN F. SPEED

Supreme Court of Mississippi

February 8, 1897

October 1896

FROM the circuit court of Lincoln county HON. J. B. CHRISMAN Judge.

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

The seventh instruction, given at plaintiff's request, which is referred to, in the opinion of the court, is as follows:

"7. The court instructs the jury, for the plaintiff, that in an action for slander, the law implies damages from the speaking of the words which accuse the plaintiff of crime, and, also that the defendant intended the injury which the slander was calculated to effect; and, in this case, if the jury believe from the evidence, that the defendant is guilty, as charged in the declaration, then they are to determine, from all the facts and circumstances proved, what damages ought to be given, and the jury are not confined to the mere pecuniary loss or injury sustained."

The instructions given for defendant, referred to in the opinion of the court, are as follows:

"3. The court further instructs the jury, for the defendant, that unless they believe, from the evidence, that the defendant intended, by what he said, to charge the plaintiff with intentionally administering poison to him, with intent to kill and murder him, then they will find for defendant.

"4. The court instructs the jury, for the defendant, that if they believe, from the evidence in the case, that Speed did not intend to impute anything wrong to plaintiff, and that all Speed said was, that he believed he was poisoned in the coffee, and that he did not charge that Mrs. Furr put the poison in the coffee, or knew it was in the coffee when she gave it to him, then they will find for defendant.

"5. The court further instructs the jury, for the defendant, that before any recovery can be had in this case, the plaintiff must establish, by a preponderance of the evidence, that the defendant perpetrated the slander complained of in the declaration, and if, from all the evidence in the case, the jury are unable to determine whether he did say so or not, then they will find for defendant."

The other instructions are sufficiently stated in the opinion.

Judgment reversed and cause remanded.

R. H. Thompson, for appellant.

The peremptory instruction asked by the plaintiff should have been given. This I predicate of the evidence of the defendant himself. Speed testified that, after dining at the plaintiff's table and leaving the premises, he said to several persons "that he believed that he had been poisoned, and that he believed the poison was in the coffee, and that Mrs. Furr, the plaintiff, gave him the coffee." This language, without explanation or qualification, is libelous per se. The natural import of these words, unexplained and unqualified, is to impute crime. If Speed was not willing for this implication to be received by his hearers, he would have added something to the effect that he did not think the good woman knowingly or intentionally poisoned him. This he did not do, and, it will be noted, in his evidence he nowhere states his belief to be that plaintiff was innocent in the matter. It will be seen from the authorities that the words averred in the declaration, and proved on the trial by plaintiff's witnesses, "Mrs. Furr poisoned me, " are actionable per se. Gardner v. Spurdant, Cro. Jac., 438.

Townsend on Slander and Libel, sec. 168, says: "A general charge of being a murderer, or of having killed another, is actionable. Thus, held actionable to say, 'Thou hast killed a man, ' 'You killed my brother, ' 'You killed one negro and nearly killed another, ' 'George Burton is the man who killed my husband, ' 'I will call him in question for poisoning his own aunt, and make no doubt but to prove he hath poisoned his aunt, '" etc. Even had the words been "I believe Mrs. Furr poisoned me, " they would have been actionable. See Starkie on Slander, vol. 1, pp, 68, 69, top p. 60, where the following words were held actionable: "A woman told me that she heard one say that Meggs, his wife, had poisoned Griffin, her first husband, in a mess of milk."

When Speed said "that he believed he had been poisoned, and that he believed that the poison was in the coffee, and that Mrs. Furr gave him the coffee, " he substantially said, he surely left a legitimate inference, that "he believed Mrs. Furr poisoned him." To have so stated--to have used these words--would have made him liable. It is actionable for one to say that he supposes or thinks or believes another to be guilty of a crime. Townsend on Slander and Libel, sec. 163; Starkie on Slander, vol. 1, p. 64, top page 56; Miller v. Miller, 8 Johns. (N. Y.), 74; Waters v. Jones, 3 Port., 442 (29 Am. Dec., 261); Giddens v. Mirk, 4 Ga., 364; Logan v. Steele, 1 Bibb, 593, S.C. 4 Am. Dec., 669; Nye v. Oatis, 8 Mass. 121, S.C. 5 Am. Dec., 79.

The court surely erred in giving the instructions which were granted at defendant's request. Read the first one. It says to the jury that, before the plaintiff can recover, they must be satisfied from the evidence not only that defendant had spoken the words "Mrs. Furr poisoned me, " but that the words were so spoken with the intent, and that defendant meant thereby to say that Mrs. Furr intentionally poisoned him, and was guilty of an attempt to kill and murder him, and unless such--that is, the intent--is established by a preponderance of the evidence, plaintiff could not recover. In other words, this is flatly in the face of the authorities above cited. Townsend, sec. 168; Starkie, vol. 1, pp. 68, 69, top page 60. I will ask the court to examine the cases cited in the notes to Townsend, sec. 168, and apply the authorities to the present question. "Thou hast killed a man" does not necessarily imply a crime. It might be done justifiably or accidentally, and yet the words are actionable when spoken without explanation or qualification, and so of the other instances given in the section cited. It is not necessary, to make words actionable per se, that they should necessarily imply a crime. It is sufficient that they naturally carry the imputation. The words "Mrs. Furr poisoned me" naturally import crime. They are actionable per se, as shown by authorities cited. The instruction deals with them as if they were not so actionable.

The third instruction given defendant is subject to the same objections, and is, if the thing be possible, even more erroneous. These instructions submit to the jury as a question of fact what the court should have decided as a matter of law; whether the language was actionable did not depend upon any other intent than the one which the law places on words which are actionable per se; the law conclusively fixes their meaning. The only question of intent involved in such case is the intent to speak the words; if that intent existed, it is immaterial whether the speaker intended, willed, the consequences of the publication. Townsend, ch. 5, secs. 60-92.

The speaking of actionable words to the plaintiff in the presence of other persons is a publication. Townsend on Slander and Libel, sec. 107, p. 151. It will be noted, too, that, in the conversation with Mrs. Furr, Speed was charged with other publications, and, according to plaintiff's evidence, did not deny the charge.

The fifth instruction given for defendant is misleading. Too much importance is given the little word "so." Why the court should have given so much significance to so small a word as "so" is beyond finding out.

Cassedy & Cassedy, for appellee.

The suit being a common law action, and the words spoken being in "plain and ordinary language, in common use, not ambiguous or doubtful, " "under such circumstances the jury are the judges of the meaning and intent of the words." Jarnigan v. Flemming, 43 Miss. 720. The words used might have been sufficient to sustain a case founded upon the statute for actionable words, but not a case at common law for slander.

In the case of Crawford v. Melton, 20 Miss. 328, the words used were "C swore a lie, and I can prove it, " and the court held the words to be within the statute, but not actionable at common law. There is just as much reason to contend that the words used in that case imputed to the plaintiff the commission of a felony as in this case, and more. In the last case cited, while swearing to a lie would seem that the person so transgressing was guilty of a crime, yet, in order to commit perjury, the party must knowingly swear to a lie, and his testimony must be upon some question material to the issue being tried, and he must have been sworn to tell the truth by an officer authorized to administer an oath. We submit that the words themselves used in this case are not per se actionable at common law, nor are they actionable taken in connection with the other evidence in the case.

The instructions for the defendant are not erroneous unless the court erred in refusing the peremptory instruction, for they merely inform the jury that they must believe that Speed intended to charge Mrs. Furr with intentionally poisoning him and being guilty of an attempt to kill, and that such fact should be established by a preponderance of the evidence. If the words used were not actionable per se, then the instructions were proper. Words spoken in answer to a question directed by the plaintiff herself, in the presence of the other ladies, would not amount to a publication of the slander, and, if the plaintiff relies on this alone to sustain her case, she should go with the answer that she had provoked the speaking of the words, and cannot, therefore, avail herself of the advantage gained.

OPINION

STOCKDALE, J.

This is an action of slander brought by appellant (plaintiff in the court below) ag...