Holliday v. Maryland Casualty Co.

• Citation: 75 So. 764,115 Miss. 56
• Decision Date: 25 June 1917
• Docket Number: 19471
• Court: Mississippi Supreme Court
• Parties: HOLLIDAY v. MARYLAND CASUALTY CO

75 So. 764

115 Miss. 56

HOLLIDAY v. MARYLAND CASUALTY CO

No. 19471

Supreme Court of Mississippi

June 25, 1917

Division B

APPEAL from the circuit court of Madison county, HON. W. H. POTTER Judge.

Suit by T. C. Holliday against the Maryland Casualty Company. From a judgment for defendant, plaintiff appeals.

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

Affirmed and dismissed.

H. B. &amp J. W. Greaves, for appellant.

The last charge is the one charge which appellant is aggrieved at. Appellant claims that this last charge, that he shot off his other foot and made claim accordingly, indicated to any ordinary man's mind, not accustomed to splitting hairs to find excuses to let a man out of trouble, conveys the idea of moral turpitude and also a transgression of the criminal laws: First, that a man would collect seven thousand, five hundred dollars, the amount of the insurance, which he knew that he was not entitled to; second, that he would lie in order to collect this insurance and thus transgress the criminal law against perjury; third, would obtain under false proceedings the sum of money for which he was insured.

This last quoted paragraph from the objectionable letter, suggests moral turpitude and a transgression of the criminal law is liberlous per se. As to the construction of the paragraph note Canduan v. Mille, 98 Wis. 164.

It will not do to be too highly technical in order to arrive at a conclusion that the construction of the words used in the circular might be susceptible of two constructions and to give it the construction that he does, that it was a harmless suggestion that his leg was shot off accidently without any moral turpitude being attached to Holliday, when it is apparent to the ordinary person that the inference necessarily gathered from the language, to an unbiased mind is that it was intended to directly charge that appellant in this case deliberately shot off his leg. It won't do for the court to be highly technical and hair-splitting in undertaking to construe the language used to exonerate the appellee.

The court holds: "It is the duty of the court to see what the rest of mankind sees and to understand the meaning of the writing as the rest of mankind understands it, and to place itself in the position of any unbiased reader of ordinary intelligence and thus determine the meaning which the language, considered in its proper sense, was intended and calculated to convey. See Hothkiss v. Olmsted, 37 Ind. 74; Tillman v. Robins, 68 Me. 295, s. c. 28 Am. Rep. 50 85 Am. Dec. 456, 18 Am. Rep. 466, 56 Miss. 808.

Written words charging a person with a crime are libelous per se whether the crime be a felony or a misdemeanor. See Ivy v. Pioneer Sav. etc. Co., 113 Ala. 349, s. c. 21 So. 531; See 47 Am. St. Rep. 737. Palmer v. Concord, 48 N.H. 211, 97 Am. Dec. 605, 47, Am. Rep. 183, 21 L. R. A. 493; 11 L. R. A. 725; 31 Am. Rep. 757; Also see Am. & Eng. Enc. of Law, 188; McLaughlin v. Fisher, 136 Ill. 111, a good case; Parker v. Detroit Free Press, 1 L. R. A. 599; Hansen v. Krehbiel, 64 L. R. A. 790, See last paragraph of opinion, page 794; See, also, 12 Am. St. Rep. 696.

Words that tend to expose the plaintiff to public hatred, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace and cause him to be lowered in the mind of right thinking people and deprived of their friendship society or respect are libelous and actionable per se."

If the last paragraph quoted, "Recently shot off his other foot and makes claim accordingly" does not tend to do all of this, then what would? See the case of Obaugh v. Finn, 4 Ark. 110; s. c. 37 Am. Dec. 773; Rice v. Simmons, 31 Am. Dec. 766; Augustus Evening News v. Radford, 91 Ga. 494; Kirkpatric v. Eagle Lodge, 26 Kan. 384; 40 Am. Rep. 316; 52 Am. Rep. 768; Smith v. Smith, 3 L. R. A. 52. This is a good case. See 8 L. R. A. 214. The question of libel or no libel in civil action is one of law which the court must decide, where the publication is admitted, and the words are unambiguous and admit of but one construction, otherwise where two can be placed upon it, then it is a question for the jury. See Moore v. Francis, 8 L. R. A. 214.

The question of good faith in the publication is for the jury and not for the court. Hinman v. Hare, 104 N.Y. 641, See, also, Morey v. Morning Journal Association, 9 L. R. A. 621. It is not necessary that the charge should be made in express terms in order to be actionable per se. See Rebo v. Fuller, 84 Tex. 450; s. c. 31 Am. St. Rep. 75. A libel may be made in the form of insinuation, allusion, irony, or questions as well as in positive and direct terms. See Wafford v. Meek, 129 Ala. 349; s. c. 30 So. 625. The manifest intention of the circular issued is to charge Holliday with being a swindler and a liar. "It is libelous per se to charge a man with being a swindler." See Canduan v Miller, 98 Wis. 164.

The next question: No name being called, are we entitled to recovery? On this question the decided weight of authority is that the libelous language need not name the plaintiff as the person to whom it refers. It is sufficient if the fact that the plaintiff is the person intended to be libelled, can be ascertained from the words of description or other references made by the publication, or even if it can be shown by extrinsic facts and circumstances. See the case of Lethrop v. Lumberg, 55 Wash. 144. This case sustains our contention that plaintiff's name need not be mentioned in order to justify a recovery. In that case, a recovery was permitted where the plaintiff, in his declaration showed that it was intended for him and brought himself within the terms of the circular in his declaration. The same circular was also under consideration in the same court, in the case of Dunlap v. Lumberg, the same volume, 55 Wash. 609, also reported in 133 Am. St. Rep. 1050.

I have read the originals of both opinions delivered by the same court. In the first opinion, a right of recovery was conceded. In the second case, the demurrer to the declaration was sustained because the court said that by the declaration the plaintiff showed that he did not belong to the class referred to. See also the case of Weis v. Hoss, 6 Ala. 881; Colvert v. Black, 110 Ga. 642."

"It is sufficient if those who know the plaintiff can understand from the language used that he is the person referred to." Lewis v. Soul, 3 Mich. 514. See, also, the case of Duviver v. French, 105 F. 278. See, also, Northrop v. Tibbles, 215 F. 99. The last case cited a number of authorities in point here.

It goes without saying that this paragraph is libelous per se and also that it is for the jury to determine whether it applies to appellant or not. The remaining question is whether the communication was a privileged communication. The declaration alleges that the letter was addressed to its agent and others.

Again, if this letter was written in malice and directed to the agents and no other persons, and was carelessly and negligently handled by the agents to such an extent that other persons were allowed to peruse this circular, it was not privileged and defendant, appellee is not protected on this point. See the following cases: A. & V. R. R. Co. v. Brooks, 69 Miss. 168 and authorities grouped in opinion at top of page 158; Hinds v. Shoemaker, 97 Miss. 669, very much in point here; See, also, 104 Am. St. Rep. 110 and cases cited. See, also, recent case of Pate v. Trollinger, 74 So. 131, Adv. Sheet, Mch. 24, 1917.

We respectfully submit, on the authorities, that this case being heard on demurrer, admits the allegations of the bill, (while of course, not admitting the law); it is up to this court to determine the allegations of the bill being true, whether or not the appellant has a right to have his case submitted to a jury, and we respectfully submit that the court had no right to take this case from the jury on the demurrer and that this case should be reversed for trial.

McLaurin & Armistead, for appellant.

We are pressed with the inquiry as to whether or not the letter was libelous per se. If it was libelous per se, of course, no special damages are required to be shown or proven. The court below even admits this much. We respectfully submit that the letter is libelous per se for two reasons: first, it charges the common-law offense of self-mutilation. This will be clearly shown by reference to 26 Cyc., p. 1601, under the head of "Mayhem, " we find the following text: "The crime may be committed by a white man on the body of a slave, and the statutes are held to give the same protection to the internal organs of the female as to the external organs of the male. Under early English statutes which were directed against the maiming of others, it was held that if one maimed himself or procured himself to be maimed, both he and the party by whom the maim was effected were subject to fine and imprisonment." Citing in support of this case Wright's Case, Coke Litt, 127; 1 Hale, P. C. 412; 11 Jac. 1. The same doctrine is announced in 20 A. & E. E. of Law page 247, and cases cited. Second, the letter is libelous per se because it charges the party referred to necessarily with false pretenses. The letter on its face shows that it has reference to the fraudulent collection of indemnity for accidents, and it necessarily follows, we respectfully submit, that if a party to do this shoots off his foot and makes claim accordingly, he must be guilty of false pretenses, because such conduct would not be in keeping with an accident for which he would be entitled to be indemnified under the contract in question. State v. Hubanks, 99 Miss. 775.

As shown above, the declaration shows the letter was sent not only to agents, but to others, and even if it was a qualified privilege...