Landrum v. Ellington

• Decision Date: 11 February 1929
• Docket Number: 27682
• Citation: 120 So. 444,152 Miss. 569
• Court: Mississippi Supreme Court
• Parties: LANDRUM v. ELLINGTON. [*]

120 So. 444

152 Miss. 569

LANDRUM v. ELLINGTON. ^[*]

No. 27682

Supreme Court of Mississippi

February 11, 1929

Division A

1. TRIAL. All instructions must be taken together in determining whether trial court committed error.

All of the instructions must be taken together in determining on appeal whether or not trial court committed error.

2. LIBEL AND SLANDER. Five hundred dollars damages to man under twenty-one years of age, denounced as thief and liar, held not excessive (Hemingway's Code 1927, section 1).

Verdict for five hundred dollars, to young man under twenty-one years of age, for being denounced as both a thief and a liar, held not excessive, under Code 1906, section 10 (Hemingway's Code 1927, section 1), relating to actionable words.

3. LIBEL AND SLANDER. Under statute relating to actionable words, jury, within reasonable bounds, is sole judge of damage sustained (Hemingway's Code 1927, section 1).

Under Code 1906, section 10 (Hemingway's Code 1927, section 1) relating to actionable words, jury, within reasonable bounds is sole judge of damages sustained.

HON JOHN F. ALLE, Judge.

APPEAL from circuit court of Attala county, HON. JOHN F. ALLEN Judge.

Action by Allie Ellington, a minor, by next friend, J. D. Ellington, against James E. Landrum. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

J. G. Smythe and J. D. Guyton, for appellant.

Jas. T. Crawley, for appellee.

Argued orally by J. G. Smythe, for appellant, and Jas. T. Crawley, for appellee.

OPINION

MCGOWEN, J.

In the circuit court of Attala county, Allie Ellington, a minor, by next friend, J. D. Ellington, appellee here, sued Landrum, appellant, for damages in the amount of ten thousand dollars; the gravamen of his declaration being that the appellant accused the minor, Allie Ellington, of attempting to steal his automobile, and further of "swearing a lie and committing the detestable crime of perjury." He also charged that such words were uttered during the month of December, 1926, on the streets of Kosciusko.

The appellant entered a plea of not guilty, and appellee, without appellant's objecting, offered evidence to the effect that appellant had said, in a certain trial subsequent to December, 1926, and before the trial of this case in the circuit court, that he uttered the words attributed to him in the declaration sworn to by witnesses for the appellee in the trial of this case. A verdict was rendered in favor of the appellee for five hundred dollars, and the judgment of the court entered accordingly. Hence the appeal here.

The declaration in this case is based upon Hemingway's 1927 Code, section 1 (Code 1906, section 10).

The first assignment of error is to the effect that instructions Nos. 1, 2, 3, and 5, given by the court for the appellee, state that, "if the jury believe from the evidence that the defendant did say, at the time and place testified about," etc., "you will find for the plaintiff." Appellant insists that the use of the words "at the time and place testified about" is harmful in this case, because of the testimony with reference to his admissions in the trial in the court of the justice of the peace, and he insists that, instead of using the quoted words, the instruction should have said "during the month of December, 1926, on the streets of Kosciusko."

We do not think there is any merit in this contention, nor was there any chance for the jury to be misled as to appellant's admissions in the trial in the court of the justice of the peace. However, in the light of appellant's contention that the instructions should have specifically named the time and place as "during the month of December, 1926, on the streets of...