Hodges v. Cunningham

• Citation: 160 Miss. 576,135 So. 215
• Decision Date: 01 June 1931
• Docket Number: 29071
• Court: United States State Supreme Court of Mississippi
• Parties: HODGES v. CUNNINGHAM et al

135 So. 215

160 Miss. 576

HODGES v. CUNNINGHAM et al

No. 29071

Supreme Court of Mississippi

June 1, 1931

Division A

1. LIBEL AND SLANDER.

At common law, any written or printed language tending to injure one's reputation, thereby exposing him to public hatred contempt, or ridicule, tending to degrade or lower him, is "actionable per se."

2. LIBEL AND SLANDER. Language of printed statement by trustees of public school regarding lumber dealer held actionable per se, at common law.

Trustees of public school let contract for construction of a new building to the lowest bidder, whereupon lumber dealer made certain statements which induced alleged libelous statements. Article published by the trustees stated in substance that "the retail lumber dealer began his assault on our architect, peddling his journal articles and offering his innuendos of crookedness, and thus sowing his seed of slander in an effort to poison the public mind against an educational project.... Each charge against the architect was by us known to be a character of innuendo more poisonous and misleading than an outright falsehood and less commendable." The article further stated that "a person who can work himself up to think this town would be that cheap and treacherous is too silly to be classed insane or else his motives are too low to be classed as shady."

3. LIBEL AND SLANDER.

Language of alleged libelous publication held to so far exceed necessities of occasion as to exceed privilege, if any.

4. LIBEL AND SLANDER. Whether alleged libelous words are calculated to lead to breach of peace is question for jury (Code 1930, section 11).

Code 1939, section 11, provides in substance that all words which from their usual construction and common acceptation, are considered as insults, and calculated to lead to a breach of the peace, shall be actionable.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Prentiss county, HON. C. P. LONG, Judge.

Action by Hill Hodges against J. A. Conningham and others. Judgment for the defendants, and the plaintiff appeals. Reversed and cause remanded.

Reversed and remanded.

Eugene P. Lacy, of Booneville, and Wells, Jones, Wells & Lipscomb, of Jackson, for appellant.

There is no question but that the language used with reference to appellant was libelous per se.

Hines v. Shumaker, 97 Miss. 667; Valley Dry Goods Co. v. Buford, 114 Miss. 415; Fen v. Speed, 74 Miss. 423.

Conceding that the language used was so privileged, the appellee exceeded the necessity of the occasion and broadcast the libelous statements.

Under the third and fourth counts the appellant was entitled to a peremptory instruction.

Cock v. Weatherby, 5 S. & M. 333; Warren v. Norman, Walker, 387; Torrence v. Hurst, Walker, 403; Scott v. Peebles, 2 S. & M. 546; Crawford v. Melton, 12 S. & M. 328; Tribble v. Yazoo, 103 Miss. 1; Nabors v. Mathis, 76 So. 549; Wrought Iron Range Co. v. Baltz, 86 So. 354; Bigner v. Hodges, 82 Miss. 215; Grantham v. Wilkes, 100 So. 673.

J. A. Cunningham, of Booneville, W. C. Sweat, of Corinth, T. A. Clark, of Iuka, and J. S. Finch and Floyd Cunningham, both of Booneville, for appellees.

The communications complained of should be classed as qualified privileged communications.

Winton v. Patterson, 119 So. 161; Alabama v. Railroad Co., 13 So. 845; Grantham v. Wilkes, 100 So. 673; 61 So. 657; 17 R. C. L., page 328; 36 C. J., page 241.

The defendants published this report and argument in discharge of a public duty, and it was qualified privilege.

36 C. J., pages 1261, 1262, 1263; Bass v. Burnett, 127 So. 781.

A communication made in good faith on any subject-matter in which the persons communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having corresponding interest or duty, even though it contains matter, which; without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation.

Sands v. Robinson, 12 S. & M. 704, 51 Am. Dec. 132; Grantham v. Wilkes, 100 So. 673, 17 R. C. L. 341.

Argued orally by J. A. Cunningham, for appellee.

OPINION

Smith, C. J.

The appellant sued the appellee in an action of libel, and was denied a recovery. The published language alleged to be libelous can best be understood by first setting forth the circumstances of the publication. The appellees are trustees of a public school at Booneville, and were charged with the duty of constructing a building therefor. They employed an architect to design the building and supervise its construction. They awarded a contract for the construction of the building to the lowest bidder pursuant to publication therefor. The appellant, a retail lumberman at Booneville, filed a bid for the construction of the building, and suggested a method for its construction different from that adopted by the appellees, which, speaking broadly, was to the effect that the construction of the building be not let to the lowest bidder, but under a contract by which the appellees would pay only the expense of the material and the supervision of the construction. After the contract for the construction of the building was let, the appellant published orally and in one of the local newspapers a protest against the system for the construction of the building adopted by the appellees, stating in effect that it would be unnecessarily expensive, would result in a building of inferior quality, and "invites graft, fraud, misrepresentations, disagreements and no end of trouble as well as costs;" that under the system suggested by him the building would be constructed by local men; that the school was located in the wrong place; and that another site should be chosen. According to the evidence for the appellees, he also charged orally that the architect employed by the appellees was a crook, but this the appellant denied.

Thereafter the appellees published quite a lengthy statement in two local newspapers, setting forth the things done by them in connection with the construction of the proposed building and their reasons therefor, making frequent reference therein to "the retail lumber dealer."

The...