New Orleans Great Northern R. Co. v. Frazer

• Decision Date: 03 November 1930
• Docket Number: 28865
• Citation: 158 Miss. 407,130 So. 493
• Court: Mississippi Supreme Court
• Parties: NEW ORLEANS GREAT NORTHERN R. CO. v. FRAZER

130 So. 493

158 Miss. 407

NEW ORLEANS GREAT NORTHERN R. CO. v. FRAZER

No. 28865

Supreme Court of Mississippi

November 3, 1930

Division B

1. LIBEL AND SLANDER. It is not reversible error to show friendly relations between person uttering slander and another, and that relations between person uttering slander and slandered person were unfriendly.

In a trial for slander, it is not reversible error to show friendly relations between the person uttering the slander and another person, and that the relations between the person who uttered the slander and the slandered person were unfriendly.

2. LIBEL AND SLANDER. Law presumes slandered person to be of good character until his reputation is attacked; it is not reversible error to admit evidence showing plaintiff's good character as to trait involved in slander, especially where declaration charges malicious and false slander evidence of good character is admissible in case of malicious slander.

In a suit for damages for slander, the law presumes the slandered person to be of good character until his reputation is attacked, but it is not reversible error to permit evidence to be affirmatively offered to show the good character of the plaintiff as to the trait involved in the slander, especially where the declaration charges a malicious and false slander and the evidence tends to prove such allegations. Evidence of good character is admissible in case of malicious slander.

3 TRIAL. Instruction may be refused, where there is no evidence on proposition stated therein.

An instruction should not be given, and consequently may be rightfully refused, where there is no evidence upon the hypothesis or proposition stated in the instruction.

4. MASTER AND SERVANT. Roadmaster, who, on being asked cause of discharge by discharged employee, informed employee it was on account of stealing, held acting in master's employment as respects master's liability for slander.

Where a roadmaster, having authority in behalf of the railroad corporation to employ and discharge men, discharges an employee to take effect at a later period of the day on which the discharge is made, and where before the expiration of such time the employee discharged asked the cause of his discharge and is informed that he is discharged for stealing the road-master is acting in the business of his master and about his master's business, and the statement of the reason for the discharge is a part of the res gestae; this is especially true where under a rule of the company the discharged person has a right of appeal or arbitration with a right to reinstatement if the discharge was found to be wrongful.

5. LIBEL AND SLANDER. Roadmaster's statement of cause of discharging employee on employee's request for reason is privileged, unless false or malicious.

Where a roadmaster discharges an employee whom he has a right to discharge, and is asked for the reason of the discharge, his answer is privileged, unless it is false or the answer is made with malice; if it is false or made with malice, it is not privileged.

6. LIBEL AND SLANDER.

Verdict awarding seven thousand five hundred dollars for slander held excessive by three thousand seven hundred fifty dollars, where plaintiff's reputation was not in fact greatly damaged thereby.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Lawrence county, HON. J. Q. LANGSTON, Judge.

Action by H. D. Frazer against the New Orleans Great Northern Railroad Company. From an adverse judgment, defendant appeals. Affirmed on condition of remittitur.

Affirmed.

Brady, Dean & Hobbs, of Brookhaven, and Flowers, Brown, & Hester and J. N. Flowers, all of Jackson, for appellant.

The rule in relation to the proof of character is, that the inquiry must be made as to his general reputation, where he is best known--what is generally said of him, by those among whom he dwells, or with whom he is chiefly conversant.

Powers v. Presgroves, 38 Miss. 241.

The preponderance of the authorities supports the doctrine that in an action for slander as in other civil actions, good character of the plaintiff is presumed and until it is attacked by the defendant no evidence should be introduced on behalf of the plaintiff to show that his character or reputation is good. Such evidence is admissible only when the character of the plaintiff is put in issue by the pleadings or attacked by evidence or otherwise during the course of the trial.

10 Am. & Eng. Enc. of Law (2 Ed.), 1102.

In an action for slander, as in an action for assault before a recovery can be had against the master, the tort-feasor must have been acting in the scope of his employment and in the furtherance of the master's business.

Neely v. Payne, Director General, 126 Miss. 854, 89 So. 669; Moore Stave Company v. Wells, 111 Miss. 796, 72 So. 228; Davis v. Price, 133 Miss. 236.

When no previous publication has been made, as a general rule, if the fact appears that the particular publication under consideration was procured or invited by plaintiff or his authorized agent, the publication is privileged, if the answer of defendant does not go beyond plaintiff's question.

36 C. J., sec. 215, p. 1246; 18 Am. & Eng. Ency. Law (2 Ed.), p. 1032; Burdette v. Hines, Director General of Railroads, 125 Miss. 66; Billings v. Fairbanks, 136 Mass. 177; Palmer v. Hummerston, Cab. & E. 36; Laughlin v. Schnitzer, 106 S.W. 908; 17 R. C. L., sec. 61, p. 320.

Privileged communications constitute an exception to general rules relating to libel and slander, and for that reason they are not presumed to be malicious and the rule is well settled that if the words were spoken and publication made upon a just occasion the communication was privileged and express malice must be shown to maintain an action.

Jarnigan v. Fleming, 43 Miss. 725.

It is a well settled doctrine that a case will be reversed in instances, wherein there is a fatal variance between the language averred and that proven.

Baldwin Piano Company v. Jones, 119 So. 182; Jones v. Edwards, 57 Miss. 28.

The general rule is that where the acts of the agent bind the principal admissions respecting the subject-matter will also bind him if made at the same time and constituting a part of the res gestae. Declarations to constitute a part of the res gestae must be made during the negotiation or progress of the business of the agent, and be of such nature as to give character to the acts done.

Dickman v. Williamson, 50 Miss. 500; Moore v. Chicago, etc., R. R. Co., 59 Miss. 243; Forsee v. A. G. S. R. R. Co., 63 Miss. 66; Railroad v. McGowan, 62 Miss. 682; G. M. & N. R. R. Co. v. Hudson, 142 Miss. 542; M. & V. R. R. Co. v. Cocke, 64 Miss. 713, 716; Western Union Tele. Co. v. Jackson, 96 Miss. 471; Railroad Company v. Jones, 73 Miss. 229; A. G. S. R. R. Co. v. Shannon, 109 Miss. 230.

The court below erred in refusing to reduce the verdict rendered in favor of appellee in the sum of seven thousand five hundred dollars, evidencing passion and prejudice and that a recovery under such a verdict will not be permitted to stand.

Landrum v. Ellington, 120 So. 444.

G. Wood Magee, of Monticello, for appellee.

General character or reputation is admissible when the inquiry is directed to the reputation worn in the community wherein the party resides. Not only is this true, but the inquiry must be directed to the particular trait of character involved.

Westbrook v. State, 76 Miss. 710; 17 R. C. L., p. 404; Scott v. Peebles, 2 S. & M. 560; Bins v. Stokes, 5 Cushman 244; Leinkauf et al. v. Brinker, 62 Miss. 258.

The presumption of the law is that plaintiff has a good reputation, but he is not compelled to rely upon this presumption. He may go further and prove his good character.

Adams v. Lawson, 94 Am. Dec. 455; Conrad v. Roberts, Ann. Cas. 1917E, 981; Bennett v. Hyde, 6 Conn. 24; Williams v. Haig, 45 Am. Dec. 774; Romange v. Duane, 3 Wash. (C. C.) 246, Fed. Cas. No. 12028; Adams v. Lawson, 17 Gratt. 250, 94 Am. Dec. 455; Shorer v. Miller, 3 W.Va. 158; Mills v. Flynn, 157 Iowa 477; King v. Sassman, 64 S.W. 937; Stafford v. Morning Journal Asso., 142 N.Y. 598, 37 N.E. 625; White v. Newcomb, 49 N.Y.S. 704; Houston Chronicle Pub. Co. v. Quinn, 184 S.W. 669; Sample v. Wynn, 44 N.C. 319; Iler v. Cromer, Wright, Ohio, 441; Stow v. Converse, 3 Conn. 325, 8 Am. Dec. 189; Williams v. Greenwode, 3 Dana. 432; Deitchman v. Bowles, 166 Ky. 285, 179 S.W. 249; Buford v. M'Loony, 10 S.C. 268; Harris v. Sims, 124 So. 325.

No plea of privilege was filed, if such plea had been filed, the burden of proof to establish such plea would have been cast on the appellant.

17 R. C. L., p. 418; Railroad Co. v. Watson, 104 Miss. 672; Brice v. Curtis, Ann. Cas. 1913C, page 1020; Abraham v. Baldwin, 42 So. 591 (Fla.); Conroy v. Pittsburg Times, 23 Am. State Reports, 188.

A person cannot take advantage of an opportunity given by request of the plaintiff to gratify his malice by slandering plaintiff.

Luxenburg v. O'Malley, 161 La. 699, 41 So. 41; Dyers v. Libert, Ann. Cas. 1918B, 973; Watt v. Stoddard, 88 Am. Dec. 633; Howland v. Blake Mfg. Co., 156 Mass. 543, 31 N.E. 656; Watson v. Nicholas, 6 Humph. (Tenn.) 174; Patterson v. Frazer, 79 S.W. 1077.

Publication of a falsehood is never privileged. If statements, though false, are published in good faith and with an honest belief in their truth, these facts may serve only to reduce the damages, but will not serve the offender as a means of escaping damages altogether.

It is settled by authorities almost without exception, in England and in the United States, that in actions for injuries to the person or to character, the jury are not restricted, in giving damages, to the actual, positive injury sustained by plaintiff, but may give damages as a...