Interstate Co. v. Garnett

• Decision Date: 13 May 1929
• Docket Number: 27800
• Citation: 122 So. 373,154 Miss. 325
• Court: Mississippi Supreme Court
• Parties: INTERSTATE Co. et al. v. GARNETT

122 So. 373

154 Miss. 325

INTERSTATE Co. et al. v. GARNETT

No. 27800

Supreme Court of Mississippi

May 13, 1929

Division A

1. COMMON LAW. Supreme court has authority to declare for itself what common law is.

Supreme court has authority to declare for itself what common law of state is.

2. COMMON LAW. When rule of common law ceases to be reasonable it is no longer the common law.

Common law is perfection of reason, and, when rule of common law ceases to be reasonable and just, it is no longer the common law.

3. COMMON LAW. Principles of common law unsuited to conditions are not in force in state.

Principles of common law which are unsuited to conditions, or repugnant to spirit of institutions, are not in force in state.

4. LIBEL AND SLANDER. Words imputing want of chastity to woman are actionable per se.

Words which charge or import want of chastity to woman are actionable per se.

5. LIBEL AND SLANDER. Whether language is capable of bearing meaning assigned by innuendo is for court; whether meaning is assigned to language is for jury.

Whether language is capable of bearing the meaning assigned by innuendo is for court; whether meaning is truly assigned to the language is for the jury.

6. LIBEL AND SLANDER. Whether word "bitch" when applied to woman was slanderous per se held for jury.

In action for slander, question whether word "bitch" when applied to woman was slanderous per se held for jury since word "bitch" has two or more distinct meanings, one of which, as applied to woman, means a lewd or sensual woman.

7. LIBEL AND SLANDER. In determining whether word was slanderous per se, jury must consider various, ordinary, and popular meanings of word, connection in which it was used, and all circumstances surrounding use thereof.

In determining whether words used were slanderous per se, jury was under duty to consider various, ordinary, and popular meanings of word, connection in which it was used, object and purpose of party charged with use of language, and all circumstances surrounding use thereof.

8. LIBEL AND SLANDER. Liability of defendants did not depend on what defendant using word "bitch" with reference to woman intended to imply.

Liability of defendants for slander did not depend on what defendant using word "bitch" with reference to woman intended thereby to imply.

9. LIBEL AND SLANDER. Instruction authorizing verdict for plaintiff, if jury found language was used, and as used imported plaintiff was of unchaste character, held warranted by evidence.

Instruction authorizing verdict for plaintiff, if jury found from evidence that language complained of was used, and that, as used, it imported that plaintiff was person of unchaste and immoral character, held warranted where connection in which language complained of was used and all facts and circumstances concerning its use were in evidence.

10. APPEAL AND ERROR. In action for slander, denying defendants' motion for bill of particulars held not prejudicial error.

In action for slander, denying defendants' motion for bill of particulars, held not prejudicial error, where declaration was sufficiently definite with regard to time and place when words were spoken, and names of persons present, and defendants filed notice under plea of general issue denying language charged had been used, and setting forth in detail language alleged by defendants to have been used and time and place when it was used and persons present.

11. EVIDENCE. In slander action, evidence that one of defendants endeavored to hire witness to make affidavit he did not hear defendant say anything to plaintiff and companion held admissible against such defendant.

In action for slander, evidence that defendant, who uttered slanderous words, endeavored to hire witness to make affidavit that he did not hear defendant say anything to plaintiff and her companion, held admissible against such defendant, since it was in nature of an admission.

12. APPEAL AND ERROR. Defendants cannot complain regarding testimony admissible against codefendant, where defendant did not request instruction not to consider such testimony against defendant.

Defendant cannot complain regarding admission of evidence which was admissible against codefendant, where defendant did not request instruction to jury not to consider such evidence against defendant requesting instruction.

13. EVIDENCE. In action for slander against employee uttering slanderous words and his employer, evidence that employee endeavored to hire witness to make affidavit to effect he did not hear words held admissible against both defendants.

In action for slander against employee, who uttered slanderous words, and his employer, evidence that employee endeavored to hire witness to make an affidavit that he did not hear employee say anything to plaintiff and her companion held admissible against both defendants, since they were jointly liable, if liable at all, and such testimony was in nature of an admission made by one codefendant about a matter within common purpose and relating to joint interest in matter out of which liability was alleged to have arisen.

14. APPEAL AND ERROR. Supreme court will not reverse judgment for improper argument to jury, where there was no objection and no intolerable abuse of advocate's privilege.

Supreme court will not reverse cause for improper language in argument to jury, where there was no objection to such improper remarks and there was no intolerable abuse of advocate's privilege.

15. LIBEL AND SLANDER. Instruction authorizing punitive damages, if jury believed defendant spoke language maliciously, or in reckless disregard of plaintiff, held warranted by evidence.

In action for slander, instruction authorizing jury to assess punitive damages, if they believed defendant spoke language maliciously, or out of a spirit of ill will toward plaintiff, or in reckless or wanton disregard of plaintiff, held warranted by evidence.

16. LIBEL AND SLANDER. Evidence regarding defendants' financial worth was admissible on question of proper award of punitive damages in slander action.

As bearing on proper award of punitive damages in action for slander, evidence as to financial worth of defendants was properly admitted.

17. APPEAL AND ERROR. Instruction that jury might return verdict for twenty-five thousand dollars, amount sued for, if they believed certain matters, held error, where verdict returned was excessive.

In action for slander, instruction that jury might return verdict for plaintiff, if they believed certain matters therein set forth to be true, for twenty-five thousand dollars, the amount sued for, held error, where verdict returned was excessive.

18. LIBEL AND SLANDER. Twenty-five thousand dollars to waitress eighteen years old as damages for slander held excessive by ten thousand dollars.

In action by waitress eighteen years of age against her employer and its manager for damages for manager's uttering slanderous words imputing unchastity to her, verdict for twenty-five thousand dollars held excessive by ten thousand dollars.

ON SUGGESTION OF ERROR.

Suggestion of Error Overruled, June 10, 1929.

APPEAL from circuit court of Holmes county. HON. S., F. DAVIS, Judge.

Action by Lelia Garnett, by W. L. Ellis, administrator, against the Interstate Company and others. From a judgment for plaintiff, defendants appeal. Affirmed, with remittitur.

Judgment affirmed. Suggestion of error overruled.

Boothe & Pepper and Ruff & Johnson, of Lexington, for appellants.

In an action for slander, where the words spoken are not slanderous per se, both malice and damage must be alleged and proven. The word "bitch" is not slanderous per se.

36 C J. 1165; Walker v. Tucker, 220 Ky. 363, 295 S.W. 138; 53 A. L. R. 547; 17 R. C. L. 264; Baker v. Clark, 186 Ky. 816, 218 S.W. 280; Apears v. McCoy, 155 Ky. 1, 50 L. R. A. (N. S.) 1033, 159 S.W. 610; 36 C. J. 1170; Maxwell v. Allison, 11 Serg. & R. 343; Hoar v. Ward, 47 Vt. 657; Paysse v. Paysse, 84 Wash. 351, 146 P. 840; 1 Words and Phrases; Schurick v. Kollman. 50 Ind. 336, 338; Robertson v. Edelstein, 104 Wis. 440, 80 N.W. 724; Jacobs v. Carter, 92 N.W. 397, 398, 87 Minn. 448; Shields v. State, 17 S.E. 66, 67, 89 Ga. 549; K v. H , 20 Wis. 239, 242, 91 Am. Dec. 397; Schurick v. Kollman, 50 Ind. 336, 338; Craig v. Pyles, 39 S.W. 33, 101 Ky. 593; Blake v. Smith, 34 A. 995, 996, 19 R, I. 476; Carver v. Norton, 86 N.W. 54, 114 Iowa 46, 89 Am. St. Rep. 346; Shields v. State, 16 S.E. 66, 67, 89 Ga. 549; Roby v. Murphy, 27 Ill.App. 394, 398; Phillips v. Baldwin (N. Y.), 8 Wkly. Dig. 194, 195; Anonymous, 60 N.Y. 292, 264, 19 Am. Rep. 174; McMahon v. Hollock, 1 N.Y.S. 312, 48 Hun. 617; Nealon v. Frisbie, 31 N.Y.S. 856, 857, 11 Misc. 12; Contra, see Logan v. Logan, 77 Ind. 558, 561, 564; Riddell v. Thayer, 127 Mass. 487, 490; Scott v. McKinnish, 15 Ala. 662, 664; Sturdivant v. Duke, 155 Ky. 100, 159 S.W. 621, 48 L. R. A. (N. S.) 615; Watson v. Hampton, 2 Bibb. 319; Moore v. Johnson, 147 Ky. 584, 144 S.W. 765; 18 Am. & Eng. Law, p. 938; 25 Cyc. 322; Craig v. Pyles, 101 Ky. 593, 39 S.W. 33; Peters v. Garth, 20 Ky. L, Rep. 1934, 50 S.W. 682; 8 C. J., page 1112; 36 C. J. 1177; 17 R. C. L., page 283: McDaniel v. Jordan, 164 Ark. 596, 262 S.W. 30; 32 American Digest, Century Edition, page 1934; (Ill., 1880) Roby v. Murphy, 27 Ill.App. 394; (1894) Claypool v. Claypool, 56 Ill.App. 17; (Ind., 1875) Schurick v. Kollman, 50 Ind. 336; (N. Y., 1895) Nealon v. Frisbie (supra, N. Y.), 11 Misc. 12. 31 N.Y.S. 856; (Ohio, 1834) Wilson v. Runyon, Wright, 651; (R. I., 1896) Blake v. Smith, 19 R. I. 476, 34 A. 995; Warren v. Ray, 155 Mich. 91, 118 N.W. 741, 130 A. S. R. 566; 25 Cyc. 322, 18 Am. & Eng. Ency. of Law (2 Ed.), page 938; Cooper v. Severns, 81 Kan. 267, 105...