Reliance Mfg. Co. v. Graham

Citation181 Miss. 549,179 So. 341
Decision Date07 March 1938
Docket Number33064
CourtUnited States State Supreme Court of Mississippi
PartiesRELIANCE MFG. CO. v. GRAHAM

Division B

Suggestion Of Error Overruled April 18, 1938.

APPEAL from the circuit court of Marion county, HON. HARVEY MCGEHEE Judge.

Action for slander by Mrs. M. E. Graham against the Reliance Manufacturing Company. Judgment for plaintiff, and defendant appeals. Judgment affirmed on condition of entry of a remittitur, and otherwise reversed and remanded.

Affirmed with remittitur.

R. D. Ford and Rawls & Hathorn, all of columbia for appellant.

The peremptory instruction requested by appellant should have been given for the reason that the overwhelming weight of the evidence is against the allegations of appellees declaration and said allegations are supported by no reasonably believable evidence.

Williams Yellow Pine Co. v. Henley, 125 So. 552, 155 Miss. 893; Byrd v. State, 123 So. 867, 154 Miss. 742; Brown v. State, 121 So. 297, 153 Miss. 737; M. & O. R. R. v. Cox, 121 So. 292, 153 Miss. 597; Lefere v. Krohn, 127 Miss. 305, 90 So. 12.

Appellee's testimony in her case in chief shows conclusively that whatever charge, if any, made by Joe Detman was made as the result of an investigation made at the request of Mr. Graham and that said statement, if made, was made at a conference, requested by appellee, when no persons were present except persons interested in the matters under investigation, and the jury should have been instructed to return a verdict in favor of appellant, because in the absence of actual malice appellant would not be liable for the reason that the occasion was privileged, and this is true even though the statement might have been incidentally overheard by some third person, and since appellee has failed to prove or to offer any evidence tending to prove actual malice.

Flynn v. Reinke, 63 A.L.R. 1113, 225 N.W. 742; Grantham v. Wilkes, 100 So. 673, 135 Miss. 777; Bull v. Collins, 54 S.W.2d 870; Hall v. Rice, 223 N.W. 4; Weinstein v. Rhorer, 42 S.W.2d 892; World Oil Co. v. Hicks, 46 S.W.2d 394; La. Oil Corp. v. Renno, 157 So. 705, 173 Miss. 609; Newell on Libel and Slander (4 Ed.), secs. 345, 346 and 395; Railway Co. v. Brooks, 69 Miss. 168; Wrought Iron Range Co. v. Boltz, 123 Miss. 550; Oakes v. Walker, 154 So. 26; Stewart v. Riley, 172 S.E. 791; Fahr v. Hayes, 21 Vroom 275; Montgomery Ward & Co. v. Watson, 55 F.2d 184; Kroger Grocery & Baking Co. v. Yount, 66 F.2d 700; New York & Porto Rico Steamship Co. v. Garcia, 16 F.2d 734; Gust v. Montgomery Ward & Co., 806 S.W.2d 286; Parr v. Warren-Lamb Co. 236 N.W. 291; Walgreen Co. v. Cochran, 61 F.2d 357; Newell on Libel and Slander, (4 Ed.), par. 296; 17 R. C. L. 344, par. 90; Scott Burr Stores Corp. v. Edgar, 177 So. 766; Great Southern Lbr. Co. v. Hamilton, 101 So. 787, 137 Miss. 55; Y. & M. V. R. R. Co. v. Woodruff, 53 So. 687, 98 Miss. 36; McMurtry v. R. R. Co., 67 Miss. 601, 7 So. 401; 37 C. J. 58, par. 421.

We submit that there was no proof in the case justifying the submission to the jury for determination of the question as to whether or not the language complained of was heard by others, if spoken. It was the duty of the appellee to have the court inform the jury what was necessary to make out her case. The error is the more damaging when considered with the fact that the trial court refused an instruction asked for by appellant, confining "the third persons present," to persons other than appellee, Mrs. Hargrove, Mr. Detman and Mr. Warren.

McDonough Mtr. Express, Inc. v. Spiers, 176 So. 723; R. R. Co. v. Gonong, 99 Miss. 540; Baldwin v. McKay, 41 Miss. 358; Young v. Power, 41 Miss. 197; Y. & M. V. R. R. v. Cornelius, 131 Miss. 37.

An instruction is erroneous when unsupported by any reasonably believable facts or circumstances satisfactorily establishing such facts.

Williams v. City of Gulfport, 141 So. 288, 163 Miss. 336; Gooden v. Gage, 117 So. 881, 151 Miss. 351; G. M. & N. R. R. Co. v. Walters, 134 So. 831, 161 Miss. 313; Interstate Life & Acc. Co. v. Cooley, 117 So. 267, 150 Miss. 502.

Our courts also hold with uniformity that instructions when they do not embody all the issues involved in the case are erroneous.

Buckwalter v. Wright, 132 So. 447, 159 Miss. 470.

The trial court erred in the giving, at the request of appellee, Instruction No. 5, Instruction No. 6, Instruction No. 7, and Instruction No. 8.

One of the flagrant errors in the four instructions is that each of them tells the jury that it can award plaintiff damages for the discharging of appellee, by appellant. Each of said instructions makes the fact of appellant 's discharging appellee an issue to be determined by the jury, and since the question of whether or not appellee was discharged is submitted to the jury by the instructions, the jury would naturally believe that the fact that appellee was discharged was an element of recoverable damage.

The average juror, unversed in legal verbiage, cannot and does not differentiate and make distinctions that one trained in the law and its phraseologies and applications, makes. Nowhere is the jury told in the instructions that the discharging of appellee, if they believe she was discharged, is no element of damages and that such fact could not be taken into consideration in fixing damages.

It cannot be said that a legal duty rested upon appellant to secure an instruction correcting or explaining instructions given appellee and which were erroneous or incorrect.

The jury were not required to go to the declaration, nor elsewhere, except the instructions given by the court, in order to ascertain the grounds relied on by appellee, as a basis of recovery.

Y. & M. V. R. R. v. Cornelius, 131 Miss. 37, 95 So. 90.

The trial court erred in authorizing the recovery of punitive damages.

Y. & M. V. R. R. Co. v. Mullen, 158 Miss. 774, 131 So. 101; Bounds v. Watts, 159 Miss. 307, 131 So. 159; Miss. Power Co. v. Byrd, 133 So. 193, 160 Miss. 71.

The trial court erred in overruling appellant's motion to set aside the verdict and grant a new trial not only for the many errors set up in said motion but for the additional reason that the damage awarded was grossly excessive and evidenced passion prejudice or caprice.

Miss. Central v. Smith, 159 So. 562; 37 C. J. 128; N. O. & G. N. R. R. Co. v. Frazer, 158 Miss. 407, 130 So. 493; Cointment v. Cropper, 41 La. Ann. 303; Fitzgerald v. Boulat, 13 La. Ann. 116; Howard v. Grover, 28 Me. 97, 48 Am. Dec. 478; Snow v. Weeks, 77 Me. 429; Phelps v. Cogswell, 70 Cal. 201; Allen v. Craig, 13 N.J.L. 294; Steadman v. Venning, 22 N. B. 639; Dancey v. Grand Trunk R. R. Co. of Canada, 19 Ont. App. Rep. 664; Belt v. Lowes, L. R., 12 Q. B. Div. 356; Higgens v. Walker, 17 Con. S. C. 225; 8 R. C. L. 674.

Conner & Hammond and T. B. Davis, all of Columbia, for appellee.

When we boil down the brief of counsel for the appellant we will find that after all practically the entire brief is based on the proposition that the communication, or rather words uttered, were privileged, and after all each point comes back to that proposition but we answer that by saying, first, under no circumstances would this difference be a defense; second, that if it could be a defense it was such defense as was necessary to plead; and third, that it would be inconsistent to deny the utterance of these words and at the same time say they were privileged; fourth, the testimony offered along this line was offered by the appellant and admitted over the objection of the appellee.

Y. & M. V. R. R. Co. v. Watson, 104 Miss. 672, 61 So. 657; Tittle v. Bonner, 53 Miss. 578; Grant v. Smith, 125 So. 393; Reeder v. Pace, 171 So. 113; Hess v. Sparks, 21 A. S. R. 300; Gudger v. Penland, 23 A. S. g. 73; 19 R. C. L. 399, par. 156.

One who denies writing the letter alleged to be libelous cannot, upon the trial justify on the grounds of privilege.

Hyatt v. Lynder, 48 L.R.A. (N.S.) 256, 63 So. 241; Sec. 536, Code of 1930; Lumber Co. v. Rather, 111 Miss. 55; Railroad Co. v. Grant, 86 Miss. 565, 38 So. 502; Herndon v. Henderson, 41 Miss. 584; Orgill Bros. & Co. v. Polk, 155 Miss. 492, 124 So. 649; Bessler & Co. v. Bank & Co., 140 Miss. 537, 106 So. 445.

Counsel state, or rather cite some authorities where the Supreme Court reversed cases on the facts, but none of those cases are applicable to the case at bar and this case comes under no rule announced in those cases.

The court is too familiar with the law on this question for us to cite any further authority or make any further comment except to say that the question as to whether or not Mr. Detman called Mrs. Graham a thief was testified to by two witnesses, neither of whose character or reputation was attacked and we challenge the record as to whether or not there is anything therein contained which makes this testimony unworthy of belief. There is none, no, not one sentence, word or letter which throws suspicion upon these witnesses. A jury of twelve good and lawful men heard all of this evidence and carefully considered the questions presented to them unbiased and unprejudiced so far as we know, and determined that Detman uttered these words as related by Mrs. Graham and there is no reason why their judgment should be peremptorily set aside and held for naught.

The words spoken were actionable per se and carried with them the presumption of malice.

Kroger Grocery & Baking Co. v. Harpole, 166 So. 335; N. O. G. N. R. R. Co. v. Frazier, 130 So. 493; Valley Dry Goods Co. v. Buford, 75 So. 252.

As to qualified or unqualified communications the question is for the court on a given state of facts if the facts are undisputed the court decides the question and if the facts are disputed, it is a question for the jury.

La Oil Corp. v. Renno, 157 So. 705; Newell on Slander...

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8 cases
  • Sumner Stores of Mississippi, Inc. v. Little
    • United States
    • Mississippi Supreme Court
    • 8 Enero 1940
    ...on a qualifiedly privileged occasion and there was no showing of actual malice on the part of this defendant. Reliance Mfg. Co. v. Graham, 181 Miss. 549, 179 So. 341; La. Oil Corp. v. Renno, 173 Miss. 609, 157 So. Scott-Burr Stores v. Edgar, 181 Miss. 486, 177 So. 766, 165 So. 623; Mo. Pac.......
  • Henry v. Collins, 42759
    • United States
    • Mississippi Supreme Court
    • 2 Diciembre 1963
    ...knowing or caring whether they were true. This is in accord with practically all of the authorities.' See also Reliance Mfg. Company v. Graham, 181 Miss. 549, 179 So. 341. Under the evidence, there was clearly such publication in the newspapers and by letter as to fasten liability upon the ......
  • Taylor v. Standard Oil Co.
    • United States
    • Mississippi Supreme Court
    • 6 Febrero 1939
    ...to make it a jury question as to whether the words spoken, in connection with all the circumstances, showed malice. Reliance Mfg. Co. v. Graham, 179 So. 341; Lumbra U.S. 290 U.S. 551, 54 S.Ct. 272, 78 L. Ed., 492; Watts v. U.S. 24 Fed. Sup. 969; La. Oil Corp. v. Renno, 173 Miss. 609, 157 So......
  • Morehead v. United States Fidelity & Guaranty Co
    • United States
    • Mississippi Supreme Court
    • 27 Noviembre 1939
    ... ... 675; Kroger Grocery ... & Baking Co. et al. v. Harpole, 166 So. 335, 175 Miss ... 227; Reliance Manufacturing Company v. Graham, 179 ... So. 341; Mo. Pac. Trans. Co. v. Beard, 176 So. 156, ... ...
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