Natchez Times Pub. Co. v. Dunigan

• Decision Date: 24 May 1954
• Docket Number: No. 39135,39135
• Citation: 46 A.L.R.2d 1280,72 So.2d 681,221 Miss. 320
• Parties: , 46 A.L.R.2d 1280 NATCHEZ TIMES PUB. CO. v. DUNIGAN.
• Court: Mississippi Supreme Court

Page 681

72 So.2d 681

221 Miss. 320, 46 A.L.R.2d 1280

NATCHEZ TIMES PUB. CO. v. DUNIGAN.

No. 39135.

Supreme Court of Mississippi.

May 24, 1954.

Berger & Callon, Natchez, for appellant.

Riley & Johnson, Natchez, for appellee.

ROBERDS, Presiding Justice.

Appellee is a white woman. Appellant is a corporation, owning, editing and publishing at Natchez, Mississippi, a newspaper called The Natchez Times. On December 19, 1951, The Natchez Times published an account of an automobile collision, which happened when appellee was driving one of the cars, in which article she was described as a Negro woman traveling in the company of two Negro men. The men were white. Appellee sued appellant for damages, alleging that the article was libelous. She recovered a judgment for $5,000, from which this appeal was taken.

The first question presented to us is whether the description in a writing that a white woman is a Negro is libelous per se. It is well to give the setting. This is the article which appeared in the paper: 'Negroes Arrested After Hit And Run Accident Two negroes were arrested this morning in connection with a wreck that occurred at 3:50 a. m. on Main Street. Charles Richard Powell, 25, was driving a Wolf Bread truck west on Main Street, police reported, when a 1949 Ford smashed into the front of his truck. The car then careened off knocking down a traffic light and a whiteway light, and continued on towards Pine Street.

'When police arrived on the scene, Powell told them that 'the car was driven by negroes and can't get far because its damaged too bad.' Powell's car had a damaged front and left fender.

'The car was located by police within an hour parked in the 600 block on Madison Street, and was hauled to the Ford Motor Company. According to Lt. Craft it was established that a Negro Woman Mary Dungan was driving the car at the time of the accident and James Manning drove it away from the scene of the accident. Manning parked the car on Madison, took the license plate off and while walking towards Jackson Street threw it away.

'Police added that the car belonged to Clyde Beasley of 108 Jackson Street who had let Manning borrow the car. Manning was arrested and charged with leaving the scene of the accident. Mary Dunagan was arrested and charged with wreckless driving.'

The information in the article was taken by the reporter from an account of the automobile accident contained in a report which the city police had made upon their records. We deem it unnecessary to copy that record. It is sufficient to say that the record described Powell as a white man. It did not purport to describe the race of the appellee nor of the two men who were in the automobile with her. It contained no prefix to the name of either. The report referred to the appellee as 'Mary Dunagan.'

It does not appear that this Court has ever decided whether it is libelous per se to write of a white woman that she is a Negro. The case of Scott v. Peebles, 2 Smedes & M. 546, did not decide that question. That was a suit for slander under our Actionable Words Statute, Section 1059, Miss.Code 1942. It is noted, in this connection, that generally to orally call a white person a Negro is not actionable per se, but it may be actionable in certain sections of the country under the social habits and customs prevailing in those sections. The question in Scott v. Peebles was whether the declaration brought the action within Section 1059, our Actionable Words Statute. The demurrer challenging that fact was overruled. In that case the defendant had said orally that the plaintiff had Negro blood. As stated, this was an action for slander and not for libel.

The general rule seems to be that to write of a white person that he or she is a Negro is libelous per se. The rule is stated in 53 C.J.S., Libel and Slander, Sec. 27, p. 69, in these words: 'To publish of a white man that he is a negro, or has negro blood, is libelous per se; and, in some states, it is slanderous per se to make such a charge orally.'

In 33 Am.Jur. 76, Par. 56, it is said: 'According to the weight of authority, a charge that a white person is a Negro or Mulatto, or is tainted with Negro blood, is actionable per se.'

In an Annotation in 50 A.L.R. 1413, this language appears: 'The great weight of authority in the cases involving charges that the plaintiff is of African origin is that such an imputation is actionalbe per se.' Such is the rule in South Carolina, Louisiana, Kentucky, Tennessee and Oklahoma, states whose social customs are very similar to those of the State of Mississippi. Flood v. News & Courier Company, 71 S.C. 112, 50 S.E. 637; Flood v. Evening Post Publishing Co., 71 S.C. 122, 50 S.E. 641; Spotorno v. Fourichon, 40 La.Ann. 423, 4 So. 71; Stultz v. Cousins, 6 Cir., 242 F. 794, 155 C.C.A. 382; Axton-Fisher Tobacco Company v. Evening Post Company, 169 Ky. 64, 183 S.W. 269, L.R.A.1916E, 667; Hargrove v. Oklahoma Press Publishing Co., 130 Okl. 76, 265 P. 635; Upton v. Times Democrat Publishing Co., 104 La. 141, 28 So. 970. In the Upton case a reporter for defendant-newspaper sent a telegram to the paper, giving an account of a meeting at which Upton presented a petition, and in which telegram the reporter referred to Upton as a 'cultured' gentleman. In the transmission of the message the word 'cultured' got changed to 'colored.' In that form it was received by the paper. The paper changed the word 'colored' to 'Negro', 'for the reason that the latter word is always used by that paper as the proper word.' Upton sued the paper. The court held this libelous per se and sustained a judgment for damages.

While the exact question has not been settled in this State, the general definition of libel per se was set out in Conroy v. Breland, 185 Miss. 787, 189 So. 814, 815, in these words: 'At common law any written or printed language which tends to injure one's reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem or lower him in the confidence of the community is actionable per se. Hodges v. Cunningham, 160 Miss. 576, 581, 135 So. 215; Wrought Iron Range Co. v. Boltz, 123 Miss. 550, 558, 86 So. 354; * * *'. That definition embraces the effect in this State of publishing that a white woman is a Negro. We therefore conclude that in this State to assert in print that a white woman is a Negro is libelous per se, which is the general rule as above shown.

It is next contended by the appellant that plaintiff made no proof of any specific money-damage which resulted to her from the publication of the article in question. It is true that none of the witnesses named any specific amount of money estimated by them to cover the damage. There was testimony that when the appellee received knowledge of the publication she was very much upset from a nervous standpoint and very emotional as a result of the publication. However, if an article is libelous per se, no special damages are necessary to be alleged or proved. The law presumes damage per se from the writing of the libelous words. Doherty v. L. B. Price Mercantile Co., 132 Miss. 39, 95 So. 790; Conroy v. Breland, supra; 33 Am.Jur. 39, Section 5; 53 C.J.S. Libel and Slander, Sec. 8, p. 41. The rule is stated in 33 Am.Jur. 39, Par. 5, in these words: 'In the case of words actionable per se, their injurious character is a fact of common notoriety, established by the general consent of men, and the court consequently takes judicial notice of it. They necessarily import damages, and therefore in such cases general damages need not be pleaded or proved, but are conclusively presumed to result; nor need special damage be shown in order to sustain the action.' Prosser on Torts, p. 797. In Conroy v. Breland, supra, it was said 'no special damages are necessary to be alleged or shown in order to prevail against a demurrer, or a motion to exclude.'

This does not mean that the court will give to the jury unrestrained power to determine the amount of the damage. The court has, and will retain, supervisory power over the action of the jury in its determination of the money-damage. Interstate Company v. Garnett, 154 Miss. 325, 122 So. 373, 63 A.L.R. 1402.

In this connection there was no malicious intent on the part of appellant in the publication of this article. However, the article being libelous per se, such intent was not necessary to sustain the action. Rodgers v. Kline, 56 Miss. 808; Jarnigan v. Fleming, 43 Miss. 710; Upton v. Times Democrat Publishing Co., supra.

After this suit was instituted, and on March 12, 1952, appellant printed in its paper an article giving account of the bringing of the suit the day before, in which appellant expressed regret that the error had been made by its reporter, and regret that the appellee had been caused any embarrassment because of such error. The correction, though commendable, did not constitute a defense. The fact of the correction was a matter to be considered by the jury in mitigation of damages. Upton v. Times Democrat Publishing Co., supra.

Appellant next urges that the amount of the verdict is so excessive as to show bias and prejudice on the part of the jurors. We do not have any very...