Henry v. Collins, 42759

• Decision Date: 02 December 1963
• Docket Number: No. 42759,42759
• Citation: 253 Miss. 34,158 So.2d 28
• Parties: Aaron E. HENRY v. Benford C. COLLINS.
• Court: Mississippi Supreme Court

Page 28

158 So.2d 28

253 Miss. 34

Aaron E. HENRY v. Benford C. COLLINS.

No. 42759.

Supreme Court of Mississippi.

Dec. 2, 1963.

Young & Hall, Jackson, Robert L. Carter, Barbara A. Morris, Maria L. Marcus, New York City, for appellant.

Semmes Luckett, Leon L. Porter, Jr., Charles L. Sullivan, Clarksdale, for appellee.

LEE, Presiding Justice.

This is a libel action, instituted by Benford C. Collins against Aaron E. Henry in the Circuit Court of Coahoma County to recover damages on account of the publication of a false and defamatory charge against the plaintiff. There was a verdict for the plaintiff in the sum of $15,000, and the defendant has appealed.

The declaration charged that the defendant, on the 6th day of March 1962 maliciously prepared, composed and published a libelous writing to Mr. Norwood, Deputy Sheriff of Bolivar County, which contained a malicious libel against the plaintiff. It was also charged that the defendant, in like manner, made such charges to the United Press International News Bureau and the Associated Press News Bureau with express intent for these agencies to publish, republish, communicate and circulate the statements among their subscribers throughout the State of Mississippi and the other states of the United States. Copies of the alleged false statements were attached to the declaration as exhibits. It was also alleged that these statements attributed to the plaintiff a gross violation of of the law and his duties, and caused injury to him in his personal, social, official, business and professional life, thereby exposing him to public hatred, contempt and ridicule, with great damage to his reputation and good standing in the community.

The answer of the defendant admitted that he wrote the letter in question but that it was not maliciously prepared; and denied that the letter was false, defamatory and libelous. He likewise denied that he maliciously prepared and caused to be published the alleged communications to the press organizations and their subscribers; and denied that the plaintiff was injured in any way by reason of the publication.

Manuel Nasser, a Deputy Sheriff of Bolivar County and Deputy Marshal of the Town of Shelby, and Charlie Reynolds, a police officer of Clarksdale, on March 3, 1962, upon returning to the city hall in Shelby, after their efforts to locate a witness in a lawsuit, were accosted by Sterling Lee Eilert, who appeared to be scared, shaking and pale. He complained about an incident which had occurred in a black Star Chief Pontiac automobile, with a tag number ending in 1769, as he was hitchhiking from Memphis, Tennessee. These officers, in an effort to identify the automobile, called the Clarksdale Police Department, and were advised that Aaron Henry was the owner of a 1961 Pontiac automobile bearing License Tag No. C 14-1769. Eilert thereupon made an affidavit before V. E. Rose, a Justice of the Peace, charging Henry with disorderly conduct. The Justice of the Peace issued a warrant for the arrest of Henry on that charge and delivered it to Reynolds for transmission to the authorities in Clarksdale. When the warrant was received at Clarksdale, the plaintiff, the Chief of Police, went to the defendant's home and advised him that he was under arrest on a charge of disorderly conduct and gave him a copy of the warrant. When Collins delivered his prisoner to the city jail, Mayor W. S. Kincade, who was at the police station, talked to Eilert, and directed Collins to call the County Attorney, Pearson, to come to the city hall for the purpose of an interrogation. With great reluctance, because he was preparing to go to a social activity, the county attorney went to the city hall and talked to the parties in order to ascertain where the alleged crime had actually occurred. To that end, he took tape recordings of the statements of Eilert, Clifford Smith, Noelle Henry, wife of the appellant, and appellant himself. When he had concluded the interrogation, the county attorney was of the opinion that no criminal offense had been committed in Coahoma County. The appellant was then turned over to Bolivar County officials.

On March 6, two days after his release, appellant wrote the letter complained about to Deputy Sheriff Norwood. Because of its length, the same is not set out verbatim. However, it advised the officer that he had filed a complaint with the Department of Justice, charging a denial of civil rights because of his arrest. Henry stated that the arrest 'was born in the minds of the county attorney and the chief of police due to his activity' in certain areas. The letter told the officer that 'I am not charging nor am I of the opinion that you nor any other authority of Bolivar County is a party to this diabolical plot. I do think that the two men above-mentioned (the county attorney and the chief of police) have schemed with some person to make the charge in Bolivar County', etc.

The statements which the defendant made to United Press International and the Associated Press, on the same date as the letter, were prepared by the appellant and read over the telephone to the representatives of the two press agencies. In each instance, defendant referred to his arrest on the charge of making immoral advances toward a male person in a claim that this was an attempt to discredit him. He called the arrest 'a diabolical plot cooked up' by Coahoma County Attorney Pearson and Clarksdale Police Officer Ben Collins. The representatives of the press agencies, in each instance testified that the appellant expressed the desire to read the statement to them, that he did so, and that they were particularly careful to write down his exact language. These statements were forwarded to subscribers and were published in the Clarksdale Press Register, the Biloxi-Gulfport Daily Herald, the Daily Corinthian, the Delta Democrat Times, and the Vicksburg Evening Post.

The appellant, forty years of age and a pharmacist, admitted that he wrote the letter to Mr. Norwood. He knew that the press agencies gathered and carried news items over the country, as he had previously given items to them. He admitted that he used the two words 'diabolical plot' in his letter. But, in an effort to explain his use of the words in the letter and statement, he said that they constituted his opinion of what the acts amounted to, and they were not uttered as a result of malice. He admitted that he had experienced several other clashes with the law. His witnesses said that they believed that the appellant would tell the truth, but they did not think the publications resulted in any harm to the appellee.

The evidence showed that neither Nasser nor Pearson had ever seen Eilert prior to the time that he approached them in Shelby, and, successively, in the city hall at Clarksdale. Collins knew nothing of the events in Shelby until the message was received over the radio that a warrant had been issued for appellant's arrest. The evidence showed positively that no one had framed the defendant or 'cooked up' any plot, diabolical or otherwise, to have him arrested on a morals charge. There was no contact between Collins and Pearson until Mayor Kincade directed Collins to call Pearson and tell him to come to the city hall.

The appellant assigns a number of alleged errors as grounds for a reversal, and these will be taken up and disposed of in the order in which they may be listed.

On the question of whether or not the appellant was entitled to a peremptory instruction at the close of the case, a proper evaluation of the evidence is as follows:

Some of the meanings of the expression 'cook up', from their common acceptation are 'to make up: devise or fabricate often factitiously as an expedient: prepare, concoct, improvise--usu. used with up * * *' and 'to alter to convey an untrue impression: falsify, doctor, angle, manipulate.' Webster's 3rd New International Dictionary, Unabridged.

'Diabolical', in like manner, may mean 'Of or relating to the devil or devils: being under the influence of devils: resembling a devil: devilish, fiendish.' Webster's 3rd New International Dictionary, Unabridged.

'Plot', in like manner, may mean 'conspiracy, intrigue.' Webster's 3rd New International Dictionary, Unabridged.

Thus, if human testimony is to be believed, there was no semblance of justification or excuse for the utterance and publication of these statements. It is evident that the purpose was to create a defense of the charge for which he was arrested and to do this by charging the appellee and the other officer with 'cooking up a diabolical plot' against him, meaning thereby that these officers were perjurers and had suborned others to perjure themselves. In other words, by this libel, these officers were charged with the commission of a loathsome and reprehensible crime, a crime so revolting as to produce hatred, contempt and ridicule, and to destroy credibility and degrade and lessen confidence and respect for them in the community. Such statements could spring only from wilfulness and malice or an utter disregard of all moral and ethical actions of human conduct. These statements were therefore libelous per se.

In Conroy v. Breland, et al., 185 Miss. 787, 189 So. 814, the opinion said: 'At common law any written or printed language which tends to injure one's reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem or lower him in the confidence of the community is actionable per se. Hodges v. Cunningham, 160 Miss. 576, 581, 135 So. 215; Wrought Iron Range Co[mpany] v. Boltz, 123 Miss. 550, 558, 86 So. 354; and no special damages are necessary to be alleged or shown in order to prevail against a demurrer, or a motion to exclude. 3 Rest. Torts, Sec. 569. The statement of the rule, as set forth in this paragraph, must not be confused with that more precisely applicable to slander or oral defamations, and must, of...