Gardner v. Standard Oil Co.

• Decision Date: 14 June 1937
• Docket Number: 32241
• Court: Mississippi Supreme Court
• Parties: GARDNER v. STANDARD OIL CO. et al

175 So. 203

179 Miss. 176

GARDNER v. STANDARD OIL CO. et al

No. 32241

Supreme Court of Mississippi

June 14, 1937

Division A

APPEAL from the circuit court of Lee county HON. THOS. H. JOHNSTON Judge.

Action by Fletcher Gardner against the Standard Oil Company and C. P. Mattox. Judgment for defendants, and plaintiff appeals, defendants filing a cross-appeal. Affirmed on cross-appeal, and reversed and remanded on direct appeal.

Affirmed on cross-appeal and reversed and remanded on direct appeal.

C. P. & S. H. Long and C. B. Hutchison, all of Tupelo, for appellant.

As a general rule, defamatory publications by defendant against plaintiff other than those sued on may be admitted in evidence to show malice on the part of defendant, and this whether such publications were made prior, or subsequent, to the defamatory words complained of, whether the words tendered in evidence are themselves actionable or not, or whether they are addressed to the same party as the words sued on or to some one else. And not only are such other words admissible in evidence, but also circumstances attending their publication, the mode and extent of their repetition, etc.

37 C J. 79, par. 488.

The question of the agency of Mattox at the time of the slander sued upon has been settled by other testimony and by that testimony which describes the circumstances under which the slander sued upon was uttered. Then the evidence in question which was excluded is competent only for the purpose of showing whether or not Mattox on the original occasion was actuated by malice in making the utterances sued upon and the reason for the rule is just as strong to allow the evidence to be introduced whether the corporation ratified Mattox' future publications or did not, for the question is not whether they ratified it or whether he was an employee at the time, acting in the scope of his authority, but the question is whether or not he went about making future accusations uncalled for, which would show by the very fact that they were made, that he was actuated in the original instance by malice. It then, therefore, becomes immaterial whether or not the corporation should ratify it or not for for us to recover in this case the corporation does not have to be actuated by any malice on the occasion of the original utterance but only Mattox and Mattox's malice would be imputed to the corporation by his employment and by reason of the circumstances under which he uttered the original slander.

In Mississippi we have no doctrines of ratification by the principal. The principal is liable for the negligence of its agents without ratification.

Doherty v. L. B. Price Mercantile Co., 132 Miss. 39, 95 So. 790; Louisiana Oil Corp. v. Renno, 157 So. 705, 173 Miss. 609.

Conceding that the slander in two counts to Lude Davis and Bob Ashe was on a quasi-privileged occasion, we say that the proof of actual malice sworn to by Gardner, uncontradicted as it stands, entitles us to go to the jury on question of malice.

37 C. J. 78, par. 482; Kennedy v. Gurley, 208 Ala. 623, 95 So. 34, 26 A. L. R. 817; Peterson v. Cleaver, 15 A. L. R. 447.

The law is well settled also that proof of repetition of the same or kindred slanders is evidence of malice, and when we proved not one or two but many repetitions by Mattox, both before and after the ones sued on, both to employees and several to one man when he was not an employee and even after Gardner was no longer an employee, we were most certainly entitled to go to the jury on the question that such repetitions showed malice.

37 C. J., page 78, par. 483, page 79, par. 488, and page 80, par. 489; 12 A. L. R. 1026; Lehner v. Berlin Publishing Co., 246 N.W. 579, 86 A. L. R. 1284.

The plea of justification filed by Mattox is unambiguous and virile in its phraseology. It definitely brands the appellant as a thief, and says that the charge is made after careful investigation and on positive proof. In fact, it states that Mattox caught Gardner red handed in the act of stealing. The proof fails to sustain this plea in the slightest degree. On the other hand, all the incidents referred to on cross-examination tend to disprove that Gardner stole anything. They reveal a nasty, unfounded suspicion and spying but no facts to base the plea on. In fact, as the proof now stands, it is a deliberate, unsupported redeclaration of the slander, in more aggravated language than the original made after thought on the subject, and unless proven by defendant's testimony to be true, will impute malice to Mattox on the original slander and any malice of Mattox's at that time is the Standard Oil Company's malice.

N. O. G. N. R. Co. v. Frazer, 158 Miss. 422; Louisiana Oil Corp. v. Renno, 157 So. 705.

A plea of justification unsupported by any evidence would be all the more proof of malice.

14 A. L. R. 109; Scott v. Peebles, 2 S. & M. 546; Dauphiny v. Buhne, 126 A. S. R. 136; 91 A. S. R. 302-306, notes H and I; 17 R. C. L. 326, par. 71.

The falsity of the slander alone on quasi-privileged occasions will not justify an imputation of malice but when joined with other circumstances showing malice it should be considered by the jury on the question.

37 C. J. 78, par. 481; 26 C. J. 850; Railway Co. v. Brooks, 69 Miss. 168.

All the investigations made by Mattox in the case at bar showed that his statements were unfounded but he continued to make them.

Hubbard v. Rutledge, 57 Miss. 7; Stevenson v. Morris, 50 A. L. R. 335, 228 Pa. 405, 136 A. 234.

Under our statute No. 668, Mississippi Code of 1930, the defendant is entitled to recover cost when non-suit is taken but this statute itself expressly states that "the law of cost shall not be interpreted as penal."

When the Federal Court made the order of non-suit and it was afterwards, at any time complied with before the trial of the present cause, the order was fully complied with. When the order of the Federal Court was made that court lost all jurisdiction of the cause except to enforce the payment of the court cost. There is nothing in the order reserving jurisdiction of the case even for this purpose.

The Federal Court is now and has been at all times since the making of this order of non-suit, without any jurisdiction to ever try the merits of that controversy.

When the cause was dismissed in that court the whole matter reverted back to such court as the plaintiff might thereafter seek redress in.

Section 595, Code of 1930; Daner v. Blackburn, 90 S.W. 237; 9 R. C. L., sec. 36.

The policy of the law is that the poor, as well as the rich, shall be entitled to remedy in due course of law and have right and justice administered, as provided in section 24 of the Constitution, without sale, denial or delay and it is not the policy and should not be the practice of the courts to deny its citizens the right of trial of cases on their merits on highly technical propositions of the kind sought to be set up in this case.

Meeks v. Meeks, 156 Miss. 638.

In support of the proposition that the plaintiff, Mattox, and all others working for the company, were servants of the company under the contract with Mattox, surrounded and bound up under the full control of the oil company as he was constituted them all servants of the company, we cite:

Gulf Refining Co. v. Nations, 145 Miss. 327; Texas Co. v. Mills, 156 So. 866; Texas Co. v. Jackson, 165 So. 546; Gulf Coast Motor Express Co. v. Diggs, 165 So. 292.

Blair & Anderson, of Tupelo, and G. Garland Lyell, of Jackson, for appellees.

It is undisputed that the plaintiff was both hired, paid and fired solely by Mattox. The Standard Oil Company had nothing to do with plaintiff or with discharging him. His name was not carried on the payrolls of the company and he was employed and paid by Mattox alone, and Mattox was not reimbursed in any respect therefor.

The evidence of all the witnesses, Bob Ashe, Lude Davis, John Lee Long, shows affirmatively that Mattox expressed great regret that he had become suspicious of the plaintiff and that he was disappointed in the man. None of these witnesses testified that Mattox showed any venom or spleen or ill-will toward the plaintiff but that his feeling and expressions were of regret and surprise at his being forced to be disappointed in the character of the plaintiff.

There was no evidence whatever of any personal feeling or ill-will existing between either of those three witnesses and plaintiff. The feeling, one for the other, was friendly so far as this record shows, and the plaintiff called them as his own witnesses, and yet the evidence shows that all three of them had been watching the plaintiff with suspicion in their minds. That undisputed evidence of the plaintiff's friends and witnesses necessarily impressed the trial court in favor of defendants, as we feel sure it will this court which has not the same opportunity to see and observe those witnesses upon the stand, that there was no evidence introduced by plaintiff to meet the burden of proof imposed upon him in this occasion of qualified privilege to overturn the presumption that the words used by Mattox were uttered in good faith and without malice. The learned trial judge said: "As to good faith as a matter of course as I understand the law, when a qualified privilege is shown, unless the plaintiff connects with that some actual malice on the part of the defendant, or some bad faith on his part, the defendant is not required to make any answer thereto. However, as a matter of course, if any evidence were adduced the burden would be upon the defendant to establish his good faith, but there is no evidence as the court sees it to indicate malice toward plaintiff in this particular case." Whereupon, the court properly sustained the motion of d...