Kroger Grocery & Baking Co. v. Harpole

• Decision Date: 02 March 1936
• Docket Number: 32115
• Citation: 175 Miss. 227,166 So. 335
• Parties: KROGER GROCERY & BAKING CO. et al. v. HARPOLE
• Court: Mississippi Supreme Court

166 So. 335

175 Miss. 227

KROGER GROCERY & BAKING CO. et al. v. HARPOLE

No. 32115

Supreme Court of Mississippi

March 2, 1936

Division A

Suggestion Of Error Overruled, April 13, 1936.

APPEAL from circuit court of Tallahatchie county HON. JOHN M KUYKENDALL, Judge.

Action for slander by John Harpole against the Kroger Grocery &amp Baking Company and another. From a judgment for plaintiff for six thousand dollars, defendants appeal. Affirmed.

Affirmed.

Ceylon B. Frazer, of Memphis, Tenn., and Caldwell & Caldwell, of Charleston, for appellants.

There was no publication. It is fundamental that on those occasions where the person in whose presence a slander was published did not understand the words used in a defamatory sense, an essential element of the action of slander is missing.

Sellers v. Powell, 168 Miss. 682, 152 So. 492; Rivers v. Feazell, 58 S.W.2d 133; Roysten v. Vander Linden, 197 N.W. 435; Given v. Matthews, 223 N.W. 649; Gilliland v. Feibleman's, Inc., 108 So. 112; Tuyes v. Chambers, 81 So. 265; Safeway Stores v. Rogers, 56 S.W.2d 431; Laranger v. Laranger, 74 N.W. 228; Pendrock v. F. W. Woolworth, 243 N.W. 648; 22 C. J. 156, sec. 88.

Slanderous statements induced by plaintiff cannot be predicated for recovery of damages for publication of same

36 C. J. 1224, sec. 171, 1230, sec. 189; Irish-American Bank v. Bader, 61 N.W. 328; Ridgeway State Bank v. Bird, 202 N.W. 170; Taylor v. McCaniels, 281 P. 967; Patterson & Wallace v. Frazer, 79 S.W. 1077; O'Darnell v. Nee, 86 F. 96; Laughlin v. Schnitzer, 106 S.W. 908; Kansas City, etc., Co. v. Delaney, 52 S.W. 151.

The occasion was privileged. The communication between Jenkins and Harpole was on a subject matter in which the party making the alleged statements, and the party to whom the alleged statements were made, had a legitimate common interest.

Louisiana Oil Corp. v. Renno, 157 So. 708; Sands v. Robison, 20 Miss. 711; 36 C. J. 1248; Jarnigan v. Fleming, 43 Miss. 710; A. & V. Ry. v. Brooks, 13 So. 847; Walgreen Co. v. Cochran, 61 F.2d 357.

A communication is privileged when made in response to inquiry of plaintiff.

36 C. J. 1246; Beeler v. Jackson, 2 A. 916; Boling v. Clinton Cotton Mills, 161 S.E. 195; Billings v. Fairbanks, 138 Mass. 179; Christopher v. Aitken, 46 L. R. A. (N. S.) 104; Brow v. Hathaway, 13 Allen, 239; Melcher v. Beeler, 110 P. 181; Equyer v. N. Y. Life Ins. Co., 101 Wash. 247, L. R. A. 1918E, 536; Middledy v. Effer, 55 C. C. A. 355, 118 F. 261.

The words were not in fact actionable.

L. & N. R. R. Co. v. Malone, 76 So. 296; Woodville v. Pizatti, 119 Miss. 85, 80 So. 491.

It is error to allow, over objection, incompetent testimony to remain overnight with a jury and on the next day attempt to exclude it by stating it might not be considered.

Y. & M. V. R. R. Co. v. River, 46 So. 705; Warren v. State, 164 So. 234.

The plaintiff sustained no actual damages reflected by the record.

Gardner v. Martin, 123 Miss. 218; Railroad Co. v. Frazer, 130 493; So. Bivens v. Stokes, 27 Miss. 239; Valley Co. v. Buford, 114 Miss. 414; Heins v. Shoemaker, 97 Miss. 669; Jefferson v. Bowles, 152 Miss. 128; Scott v. Peoples, 2 S. & M. 546; Lewis v. Black, 27 Miss. 425; Landrum v. Ellington, 152 Miss 569; Bigner v. Hodges, 82 Miss. 215; McLain v. Waring, 13 236; Y. & M. V. R. R. Co. v Wilson, 104 Miss. 672.

J. J. Breland, R. L. Cannon, and L. Q. Strong, all of Sumner, and Richard Denman, of Greenwood, for appellee.

There was a publication. The publication of slanderous words to one person alone is sufficient to constitute a cause of action.

Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 252; Roysten v. Vander Linden, 197 N.W. 435; Roemer v. Jacob Schmidt Brewing Co., 157 N.W. 640, L. R. A. 1916E, 771; United Cigar Stores Co. v. Young, 36 App. D. C. 390; 14 American Digest (2 Dec. Ed.), page 1116 Libel & Slander, sec. 112 (1).

There was no such inducement by plaintiff of the slanderous statement as would preclude him from recovering damages for its publication.

N. O. & G. N. R. Co. v. Frazer, 158 Miss. 407, 130 So. 493; Irish-American Bank v. Bader, 61 N.W. 328; Doss v. Jones, 5 How. 158; Grantham v. Wilkes, 135 Miss. 777, 100 So. 673; Wall v. Longsdon, 69 A. L. R. 1005; Switzer v. American Ry. Express Co., 119 S.C. 237, 112 S.E. 110, 26 A. L. R. 819; A. & V. Ry. Co. v. Brooks, 69 Miss. 168, 13 So. 847; Hines v. Shumaker, 97 Miss. 669, 52 So. 705; Hodges v. Cunningham, 160 Miss. 576, 135 So. 215.

The communication was not privileged as having been made in response to plaintiff's inquiry.

N. O. & G. N. R. Co. v. Frazer, 158 Miss. 407, 130 So. 493.

The words were slanderous and actionable.

Black's Law Dictionary (2 Ed.); Bouvier's Law Dictionary (Rawle's 3rd Rev.); Interstate Co. v. Garnett, 154 Miss. 325, 122 So 373; Rodgers v. Kline, 56 Miss. 808; Wrought Iron Range Co. v. Boltz, 123 Miss. 550, 86. So. 354; Tribble v. Y. & M. V. R. Co., 103 Miss. 1, 60 So. 2.

A false charge of stealing is slanderous per se.

N. O. & G. N. R. Co. v. Frazer, 158 Miss. 407, 130 So. 493; Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 493; Kennington-Saenger, Inc., v. Wicks, 168 Miss. 566, 151 So. 549; Hines v. Shumaker, 97 Miss. 669, 52 So. 705.

The judgment should not be reversed because of the court's manner of dealing with the testimony of the witness, Gus Cooley.

Bell v. Smith, 155 Miss. 227, 124 So. 331; Galtney v. Ward, 149 Miss. 56, 115 So. 117; Bessler, etc., Co. v. Bank of Leakesville, 140 Miss. 537, 106 So. 445; Hatley Mfg. Co. v. Smith, 154 Miss. 846, 123 So. 887; Sylvania. Ins. Co,. v. Simmons, 158 Miss. 596, 131 So. 94; Jackson v. State, 163 Miss. 255, 140 So. 683.

A specific objection, unless valid, is of no more weight than a general objection.

Miss. Central R. Co. v. Robinson, 106 Miss. 896, 64 So. 838; Alexander v. Eastland, 37 Miss. 554; Mark v. Home, 38. Miss. 100; N. O. J. & G. N. R. Co. v. Maye, 39 Miss. 374; Hardin v. West, 163 Miss. 839, 143 So. 697.

Only substantial similarity between predicate and contradictory statements by witness is required.

Holmes v. Holmes, 103 So. 884; Clifton v. Gay, 109 So. 168; Hill v. State, 69 So. 941; Sawyer v. Gilmers, 189 N.C. 7, 126 S.E. 183, 41 A. L. R. 1184, 1192; 16 A. L. R. 726, 737.

The testimony of the witness Cooley being competent, the jury, had the right to consider it, regardless of its exclusion by the court.

Van Vacter v. Brewster, Soloman & Co., 1 S. & M. 400,. 38. Cyc. 1891; 46 C. J. 169; 20 R. C. L. 272; Armstrong's Admr. v. Keith, 3 J. J. Marshall, 153, 20 Am. Dec. 131; Peck v. Land, 2 Ga. 1, 46 Am. Dec. 368; Wellborn v. Weaver, 17 Ga. 267, 63 Am. Dec. 235; Pearson v. Burditt, 26 Tex. 157, 80 Am. Dec. 649; Watts v. Norfork, etc., Ry., 39 W.Va. 196, 45 Am. St. Rep. 894: O'Neill v. Thomas Day Co., 152 Cal. 357, 14 Ann. Cas. 870; Luken v. Lake Shore, etc., Ry. Co., 248 Ill. 377, 94, N.E. 175, 140 Am. St. Rep. 220; Brook v. Barker, 228 S.W. 805, 14 A. L. R. 347.

The record amply sustains not only a verdict for actual damages, but also for punitive damages.

Hines v. Shumaker, 97 Miss. 669, 52 So. 705; Sawyer v. Gilmers, 189 N.C. 7, 126 S.E. 183, 41 A. L. R. 1184, 1192; 34 A. L. R. 3.

Slanderous words, unless privileged or otherwise uttered under circumstances repelling the presumption of malice, will be presumed to have been malicious.

Jarnigan v. Fleming, 43 Miss. 710; La. Oil Corp. v. Renno, 157 So; Doss v. Jones, 5 How. 158; Interstate Co. v. Garnett, 154 Miss. 325, 122 So. 756; Bell v. Morrison, 27 Miss. 68.; Storm v. Green, 51 Miss. 103; Hubbard v. Rutledge, 52 Miss. 581; 34 A. L. R. 11; 16 A. L. R. 841.

Argued orally by Ceylon B. Frazer and J. H. Caldwell, for appellant and by J. J. Breland, for appellee.

OPINION

Smith, C. J.

This is an action for slander by the appellee against the appellants, Kroger Grocery & Baking Company and E. L. Jenkins, its agent, in which there was a judgment for the appellee.

The appellants plead only the general issue, but gave notice thereunder that they would introduce evidence that if the words were spoken (1) they were not published; (2) were privileged; (3) were true, and that the speaking of them was justified by the facts and circumstances connected therewith. To this notice the appellee replied that he would introduce evidence to the effect that the words were spoken maliciously.

Two of the appellants' assignments of error only are argued in the brief of their counsel, and this opinion will be confined strictly thereto. These are: (1) The court erred in not granting the appellants' request for a directed verdict; and (2) that certain evidence was admitted over their objection.

In support of their request for a directed verdict, the appellants say: (1) The words alleged to have been spoken were not of a defamatory character; (2) were not published; and (3) if spoken, were privileged.

The appellant Kroger Grocery & Baking Company is a corporation, engaged in operating a number of chain grocery stores one of which is at Clarksdale, Mississippi, and another at Tutwiler, Mississippi. E. L. Jenkins was the manager of the Tutwiler store, and J. T. Maddox was the supervisor of a number of the stores, among which were the ones at Clarksdale and Tutwiler. The appellee, a young man who became of age after this action was begun, was employed in the Clarksdale store, but was transferred to the Tutwiler store by Maddox, succeeding George Buckner who had theretofore been employee thereat.

On the occasion hereafter to be stated, appellee says that Jenkins discharged him, and, on his asking the reason therefor Jenkins replied, in effect, in words, that he (the appellee) had stolen money from the cash register. There was evidence warranting the jury in believing that the transfer was...