National Life & Accident Ins. Co. v. DeVance

• Decision Date: 06 December 1915
• Docket Number: 17035
• Citation: 70 So. 83,110 Miss. 196
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. DEVANCE,
• Court: Mississippi Supreme Court

70 So. 83

110 Miss. 196

NATIONAL LIFE & ACCIDENT INS. CO. v. DEVANCE,

No. 17035

Supreme Court of Mississippi

December 6, 1915

APPEAL from the circuit court of Warren county. HON. H. C. MOUNGER Judge.

Suit by Henry De Vance against the National Life & Accident Insurance Company. From a judgment for plaintiff, defendant appeals.

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

Reversed and remanded.

N. Vick Robbins & Wells and May & Sanders, for appellant.

The court will observe that the second count of the declaration proceeds solely upon the right to recover damages on account of the alleged slanderous and defamatory words used toward plaintiff by G. E. Liles as agent of defendant. At the close of the testimony, the court granted defendant's instruction No. 1 to find for the defendant on the first count of the declaration.

This action of the court was manifestly intended to and should have eliminated from the consideration of the jury, all of the evidence and all right of plaintiff to recover damages on account of the alleged slanderous words used by E. P. Mullen as set out in the declaration.

The court also granted defendant's instruction No. 6 (Record page 25) to the effect that the jury could not and should not base any verdict upon the words alleged to have been spoken by E. P. Mullen at plaintiff's house.

These two instructions given in behalf of the defendant excluded any and all right of recovery on account of any words which may have been spoken of the plaintiff by E. P. Mullen, at any time.

In the second count of the declaration, there is no claim whatever on account of any words used at any time by E. P. Mullen, and the court having instructed the jury to find for the defendant on the first count in the declaration, there remained nothing upon which the jury could lawfully render a verdict, except the alleged slanderous words used by G. E Liles as set forth in the second count of the declaration.

And yet the court below, after having instructed the jury to find for the defendant in the first count of the declaration, and in total disregard of the fact that the second count of the declaration upon which alone a verdict could then be rendered, contained no allegation of any kind complaining of any words spoken by E. P. Mullen, proceeded to instruct the jury in plaintiff's instruction No. 2, that if they believed from the evidence, "that the defendant by its agent, E. P. Mullen and G. E. Liles, or either of them," spoke the slanderous words alleged in the declaration, they should find for plaintiff. This instruction (No. 2) for plaintiff, is in hopeless and irreconcilable conflict with defendant's instructions Nos. 1 and 6, and left the jury no intelligent rule to follow.

After the jury had been instructed to find for the defendant on the first count of the declaration, all defamatory words spoken by E. P. Mullen, were eliminated from the case and nothing remained of the declaration except the second count thereof and in this count no complaint whatever is made on account of any words which may have been spoken by any other person than G. E. Liles.

When they were instructed in instruction No. 2 for plaintiff, that they were authorized to find a verdict for plaintiff on words which may have been spoken by E. P. Mullen, they were necessarily referred back to the first count in the declaration, since nowhere else in the declaration does E. P Mullen's name appear; and so it is that they were first instructed to find for the defendant on the first count in the declaration, and also instructed that they might find for the plaintiff on account of the slanderous words complained of in that same court, and complained of nowhere else in the declaration.

Not only so, but in this same instruction for plaintiff (No. 2), the jury are not confined as they necessarily should have been, to the consideration of the slanderous words set forth in the second count of the declaration, but they are invited to the consideration of all slanderous words "alleged in the declaration," and this embraced the entire declaration, including both the first and second counts.

This instruction was not only in hopeless conflict with defendant's instructions, but it was confusing and misleading to the jury, and deprived the defendant of all benefit which it had a right to expect at the hands of the jury by the giving of defendant's instructions Nos. 1 and 6.

Under these two instructions for the defendant, even though the jury may have believed every word of the testimony of plaintiff's witnesses as to words spoken by E. P. Mullen as set forth in the declaration, still it was their duty to render a verdict for the defendant as to these words because they are only complained of in the first count of the declaration. The authority given to the jury to find for the plaintiff on any slanderous words used by E. P. Mullen or G. E. Liles, or either of them, as was given by plaintiff's instruction No. 2, was misleading in the highest degree because no words used by E. P. Mullen are alleged in the second count of the declaration and on this second count alone were they in any event authorized to find for the plaintiff.

Section 743 of the Mississippi Code of 1906, provides as follows: "In actions for libel or slander, assault and battery and false imprisonment, a defendant under the plea of not guilty, may give any evidence of mitigating circumstances to reduce the damages, notwithstanding he may also have pleaded a justification."

The plaintiff in this suit on the trial in the circuit court below, had been permitted to testify to the fact as to the pendency of this suit at law and as to the fact that he had obtained the insurance policy on the life of his son, and as to the fact that the defendant insurance company had refused to pay the policy after his son's death, all having been done over the objection of the defendant herein, and the declaration, in the second count, charges that the slanderous words alleged to have been spoken of the plaintiff, were uttered immediately after the trial of this cause in the court of the justice of the peace, and just a few minutes after the trial. In mitigation of the damages it was clearly competent for the defendant to prove the character of the suit between the parties and the plaintiff before the magistrate's court, as also the result of said suit, as well as the attendant facts and circumstances. It was proper that these facts should go to the jury in order that they might know the precise facts and circumstances under which the slanderous words complained of were used and to know the extent of the provocation, if any, under which they were uttered, because the proof in this case shows that these words arose from a misunderstanding on account of testimony which had been given in that trial. The ruling of the court in excluding this testimony from the jury and in refusing to permit the defendant to cross-examine the plaintiff in regard to the facts and attendant circumstances of that trial, was clearly in opposition to the statute above referred to which provides that the defendant under the general issue, may give any evidence in mitigating circumstances to reduce the damages, not withstanding he may also have pleaded justification.

It was most important to the defendant, that the proof along this line should have gone to the jury in mitigation. It was proposed to show that the plaintiff had acted in bad faith towards the defendant with reference to the procuring of the insurance policy on the life of his son and that said policy was procured by false and fraudulent representations and these facts, which proven,...