Pate v. Trollinger

• Decision Date: 19 February 1917
• Docket Number: 18819
• Citation: 113 Miss. 255,74 So. 131
• Court: Mississippi Supreme Court
• Parties: PATE v. TROLLINGER

74 So. 131

113 Miss. 255

PATE v. TROLLINGER

No. 18819

Supreme Court of Mississippi

February 19, 1917

Division B

APPEAL from the circuit court of Tishomingo county, HON. CLAUDE CLAYTON, Judge.

Suit by W. L. Pate against A. J. Trollinger. From a judgment for defendant, plaintiff appeals.

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

Reversed and remanded.

T. A Clark, for appellant.

The first proposition, the admission of evidence under the notice of privileges filed by the defendant. Section 744, Code 1906 says: "If defendant desires to prove under the general issue in an action any affirmative matter in avoidance, which by law may be proved under such plea, he shall give notice thereof in writing annexed to or filed with his plea etc." And plaintiff shall before the trial of the cause file a written notice to the defendant of any special matter which he intends to give in evidence in denial or avoidance of such special matter so given notice of by the defendant, etc.,

We contend that the mere statement that defendant expected to show that such statements made of and concerning him as alleged in the declaration were privileged is not sufficient notice under the general issue as to require plaintiff to reply to the notice, but that before defendant could avail himself of the notice of privileged communications under the general issue, he should state particularly in what the privilege consisted in order to apprise the plaintiff and inform him of the nature and character of the privilege. Unless defendant did clearly and particularly set out of what the privilege consisted, plaintiff could not reply to the notice so given under general issue. So when the witness Mr. Perry was asked with reference to being members of the same fraternal organization, the same was objected to because no notice of this particular phase of privilege would be claimed. So when witness McDonald was asked the same thing it was objected to for the same reason that witness Perry the same by objecting to the testimony of the defendant was objected to. Plaintiff does not have to reply to the notice set up by defendant but may test the sufficiency of the same by objecting to the testimony of the defendant when offered.

Railroad Co. v. Humphrey, 83 Miss. 721, 36 So. 154 Judge Cox in discussing section 686, Code of 1892, which is the same as section 744, Code of 1906, in the case of Y. & M. V. R. R. Co. v. Grant, 86 Miss. 565, 38 So. 502, says: "While as a rule, great liberality is allowed in pleading and procedure, this statute is mandatory, and must be strictly complied with. The effect of section 686 is to require every affirmative matter to be pleaded specially or given notice of, so as to distinctly inform the opposite party of the precise ground of contest on which he is to be met by his adversary. Y. & M. V. R. R. Co. v. Grant, 86 Miss. 565, 38 So. 502.

There are two kinds of privileged communications which is a defense to action of this kind. Absolute privilege and qualified privilege. And if the notice under the general issue had set out the facts on which the privilege consisted it would have fallen in the class of qualified privilege, as members of churches, fraternal organizations and secret societies, etc., it would be necessary for the defendant to set out in his notice the particular fact on which he based his privilege in order to inform the plaintiff the precise ground on which he intended to rely, and without this plaintiff could not and did not know how to meet such plea other than objecting to the testimony and we think the court erred in overruling the objection of the defendant to the testimony on this point.

It is necessary that a special plea shall contain facts sufficient to show that the publication was made on a privileged occasion. Defendant must also allege that he acted without malice, except where the words are absolutely privileged. 25 Cyc., page 458, Subdivision "B."

The notice did not show facts sufficient to show that the publication was made on a privileged occasion nor did it allege that he acted without malice, and since the privilege that he was seeking to rely on was a qualified privilege he should have alleged that he acted without malice.

The special matter or privilege that he gave notice of under the general issue in not setting out the facts sufficient to show on what he based privilege would have been the same as just merely pleading fraud, without stating the matter of which the fraud consisted, or just merely saying there was a want of consideration without stating the facts on which the want of consideration consisted. Tittle v. Bonner, 53 Miss. 578,

Special affirmative matter in avoidance of plaintiff's cause of action is properly rejected when it is sought to inject it into plaintiff's testimony before he has closed his case. It is improper to permit defendant before the plaintiff closes his case to introduce his defense.

Y. & M. V. R. R. Co. v. Grant, 86 Miss. 565, 38 So. 502, section 10, Code of 1906, says that no plea, exception or demurrer shall be sustained to preclude a jury from assessing or passing on the amount of damages.

The truthfulness of the words spoken is no defense to the action, but only goes to the jury in mitigation of the damages, and a plea of the truthfulness or special matter under the general issue is the same as a plea of justification, and plea of privilege joined to a plea of alleging that they were true is the same as a plea of justification. 25 Cyc. 458-459, footnote under page 458; Etchenson v. Pergerson, 88 Ga. 620, 15 So. 680.

If a plea alleging the truthfulness of the words spoken is a plea of justification, and if a plea of justification or the truthfullness of the words should only go to the jury in mitigation of damages, and if the joinder of a plea of privilege to one setting up the truthfullness of the words spoken amounts to a plea of justification, then we submit that notwithstanding a plea of privilege would be sufficient alone to preclude a jury from passing on the damages, still since the joinder of the two constitutes a plea of justification, we would say on that the case should have been submitted to the jury.

We respectfully submit that under the law and facts of this case it should be reversed and remanded.

W. L. Elledge, for appellant.

We concede that the testimony of witness Perry should have been excluded. We insist that the case should have gone to the jury on the testimony of witness McDonald; citing Sec. 10, Mississippi Code 1906.

Statements made in the course of an investigation by a lodge, having jurisdiction according to its discipline, made to a body or tribunal or committee authorized by that lodge to conduct an investigation are privileged;...