Sellers v. Powell

• Decision Date: 22 January 1934
• Docket Number: 30870
• Citation: 152 So. 492,168 Miss. 682
• Court: Mississippi Supreme Court
• Parties: SELLERS v. POWELL

152 So. 492

168 Miss. 682

SELLERS v. POWELL

No. 30870

Supreme Court of Mississippi

January 22, 1934

Division B

1. LIBEL AND SLANDER.

Evidence held not to show publication necessary to make case of slander against store manager and owners.

2. LIBEL AND SLANDER.

Slander must be proved substantially as alleged in amended declaration changing case from action under actionable words statute to one of slander.

3 PROCESS.

Statute requiring publication or posting of notices to nonresidents of action against them must be strictly complied with to confer jurisdiction on state court (Code 1930, sections 177, 2972).

4 JUDGMENT.

Nonresident defendants, whose post office addresses were not shown by proof of publication of notices to them, were not in court which had no power to render judgment or apply testimony against them (Code 1930, sections 177, 2972).

5. JUDGMENT.

There was no valid judgment against nonresident attachment defendants, nor any property condemned, in absence of proof of what or how much property there was or value thereof when copy of bill was served on resident defendant, and personal judgment could not be rendered without personal service of summons or personal appearance.

6. JUDGMENT. Master and servant.

Alleged slanderous statement by saleslady in employ of nonresident defendants not in court created no liability against them or resident manager of store operated by them.

HON. HENRY MOUNGER, JR., Special Chancellor.

APPEAL from chancery court of Marion county, HON. HENRY MOUNGER, JR., Special Chancellor.

Action by Henry P. Powell against W. C. Sellers and others. Judgment for complainant, and defendants appeal. Reversed and remanded.

Reversed and remanded.

Ford & McGehee, of Columbia, for appellants.

Defamatory words, uttered only to the person concerning whom they are spoken, no one else being present or within hearing, are not actionable, but it is necessary as an invariable rule that there be a publication of defamatory words to some one other than the person defamed to render the same actionable.

17 R. C. L. 315; Sheffill v. Van deusen, 74 Am. Dec. 632; Markham v. Russell, 12 Allen 575; Marble v. Chapin, 132 Mass. 226.

The decree is void as to the nonresident defendants on account of the absence in the bill of complaint or in an affidavit filed of any allegation as to their post office and street addresses or in the absence of any allegation to the effect that complainant had been unable to ascertain their post office and street addresses after diligent inquiry.

Ponder et al. v. Martin et al., 119 Miss. 156, 80 So. 388; Moore v. Summerville, 80 Miss. 323, 31 So. 793, 32 So. 294; Diggs v. Ingersoll, 28 So. 825; Burns v. Burns, 133 Miss. 485, 97 So. 815; Mays Food Products, Inc., v. Gloster Lbr. Co., 137 Miss. 691, 102 So. 735; Mercantile Acceptance Corporation et al. v. Hedgepeth, 147 Miss. 717, 112 So. 872; Ex Parte Latham, 161 Miss. 243, 136 So. 625; Commercial Credit Co., Inc., v. Cook et al., 143 So. 863.

The court below was without jurisdiction to render a personal decree, as was undertaken to be done, against all of the nonresident defendants, none of whom have been personally served with process or have entered an appearance in the case.

And the court was without jurisdiction for the further reason that whoever composed the co-partnership of Morgan & Lindsey Chain Stores were themselves in possession of their stock of goods, wares and merchandise at the Columbia store, where the resident defendant Sellers was employed as manager, to the same extent that any other store owner in Mississippi, who employs a manager and clerks, is in possession of his own property.

Advance Lbr. Co. v. Laurel National. Bank, 86 Miss. 419, 38 So. 313; 28 C. J. 81; Neuer v. O'Fallon, 18. Mo. 277, 59 Am. Dec. 313.

The attachment in chancery against the effects of nonresidents, for whom the resident defendant and the saleslady are alleged to have acted as agents in making the accusation against the complainant, was wrongfully sued out for the reason that the attachment proceedings were instituted against the nonresidents under a bill of complaint drawn under the "actionable words statute," which imposes no liability on a principal for words of an agent.

Dixie Fire Ins. Co. v. Betty, 101 Miss. 880, 58 So. 705; Neely v. Payne, 126; Miss. 854, 89 So. 669.

Seth Dale, of Columbia, for appellee.

If as argued in appellant's brief the lower court was without jurisdiction to hear the case and render a decision with reference to the nonresident defendants, as complained by counsel, because they are not in court, they are seeking to do the same thing in this court that they complained of in the lower court, for the record indicates that only defendant W. C. Sellers has appealed. Therefore, this court is concerned with the case only as it concerns defendant W. C. Sellers.

With reference to assignment eleven, the court could have of its own motion required appellee to have stricken the inconsistencies with reference to the actionable words and in sustaining the motion of appellee to be permitted to strike the same, the court committed no error, and the appellant was not injured thereby.

With reference to assignment thirteen, it appears from the reading of section 738, Code of 1930, that where judge or chancellor by reason of interest is disqualified, the parties may select some other member of the bar to try the cause, in which case it is the duty of the regular judge or chancellor to sign the order or decree, the duties of the special judge or chancellor being ministerial rather than judicial.

Grinsteau v. Buckley, 32 Miss. 148.

Unless the chancellor was manifestly wrong in his findings of facts with reference to the slander then there is absolutely no merit in any of the assignments of error, unless it be the thirteenth assignment.

OPINION

Ethridge, P. J.

The appellee, Powell, sued out an attachment in chancery against B. Morgan, C. V. Lindsey, B. G. Lindsey, C. A. Morgan, R. D. Hudiburgh, J. A. Russell, A. J. Buckley, O. A. Morgan, R. E. Smith, and O. R. Russell, nonresidents of the state of Mississippi, and operating a number of chain stores under the trade-name of Morgan & Lindsey Chain Stores, with their general office in Jasper, Texas, and one of such stores at Columbia, Marion county, Mississippi, and W. C. Sellers a resident citizen of Marion county, Mississippi, and the manager of defendants' store at Columbia, Mississippi, alleging that said W. C. Sellers has effects of the said copartnership in his hands or under his control subject to attachment in chancery.

As a ground of this action, it is alleged that the complainant, Powell, was at that time a person of good reputation, esteemed by his neighbors, and was never suspected of any dishonesty; but that the defendants, well knowing the premises, and being fully cognizant of the rights and privileges of complainant, did wantonly, willfully, recklessly, maliciously, on or about March 28, 1931, in the defendants' store at Columbia, Mississippi, while he was lawfully therein for the purpose of making a purchase acting through said W. C. Sellers and a lady clerk or saleslady who were strictly in the scope of their employment, did obstruct complainant as he was leaving the store, and, over his protest, require him to go to the rear of the store, and there was accused by W. C. Sellers and the saleslady with having stolen a pair of gloves, then and there saying to complainant, "You did steal them, I saw you steal them," and "He has them in his pockets now," and that said accusation was wholly false and without foundation, and by forcing complainant to draw from his pocket his own gloves, and saying "Now, you see they are ours, they are just alike," all of which was calculated to lead to a breach of the peace. Complainant asked for a more minute comparison of the gloves, and finally acceding to this request, a minute comparison was made of complainant's gloves with gloves belonging in the store, and W. C. Sellers and the saleslady were convinced that they were wrong and their accusation was false and without foundation.

Complainant asked damages in the sum of ten thousand dollars.

The bill did not state the post office addresses of the nonresidents, but merely stated they were a partnership at Jasper, Texas. Nor was any affidavit filed showing post office address. On the trial the complainant offered proof of publication to the nonresidents, which does not show their post office addresses, said proof of publication reading as follows:

"Notice to nonresidents:

"The State of Mississippi to B. Morgan, C. V. Lindsey, B. G. Lindsey, C. A. Morgan, R. D. Hudiburgh, J. A. Russell, A. J. Buckley, O. A. Morgan, R. E. Smith, and O. R. Stinson:

"An attachment at the suit of Henry P. Powell against your estate for ten thousand dollars, returnable before the chancery court of Marion county, at Columbia, Mississippi, has been executed and is now pending in said court; and unless you appear before said court on the 2nd Monday of April, A. D. 1932, and plead...