Sumner Stores of Mississippi, Inc. v. Little
| Decision Date | 08 January 1940 |
| Docket Number | 33824 |
| Court | Mississippi Supreme Court |
| Parties | SUMNER STORES OF MISSISSIPPI, INC., v. LITTLE |
Suggestion Of Error Overruled February 19, 1940.
APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.
Action by L. L. Little against the Sumner Stores of Mississippi Incorporated, for slander. Judgment for plaintiff, and defendant appeals. Affirmed.
Affirmed.
Green, Green & Jackson, of Jackson, and Herbert A. Mossler, of New York City, for appellant.
The defendant was entitled to a peremptory instruction because the alleged slander was uttered 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. 705; Scott-Burr Stores v. Edgar, 181 Miss. 486, 177 So. 766, 165 So. 623; Mo. Pac. Trans. Co. v. Beard, 179 Miss. 764, 176 So. 156; Great A. & P. Tea Co. v. Majure, 176 Miss. 356, 167 So. 637, 168 So. 468; I. C. R. R. Co. v. Wales, 177 Miss. 875, 171 So. 536; Gardner v. Standard Oil Co., 179 Miss. 176, 175 So. 203; Kroger Grocery & Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335.
Malice is distinguishable from negligence in that it arises from some purpose, while negligence arises from the absence of purpose.
A man may do an act wilfully and yet be free from malice.
The defendant was entitled to a peremptory instruction because the alleged slander was by one servant of and concerning another servant beyond the scope of his authority, not in the furtherance of the business of the master, for which this defendant is not liable in law.
Scott-Burr Stores v. Edgar, 177 So. 766; Craft v. Magnolia Stores Co., 161 Miss. 756, 138 So. 405; Natchez, C. & M. R. Co. v. Boyd, 141 Miss. 593, 107 So. 1; Fisher v. Westmoreland, 101 Miss. 181, 57 So. 563; Ann. Cas., 1914B, 636; Great A. & P. Tea Co. v. Majure, 176 Miss. 356, 167 So. 637, 638; J. J. Newberg Co. v. Faulconer, 58 S.W.2d 217, 248 Ky. 59; S. H. Kress & Co. v. Crosby (Miss.), 98 So. 437 (Writ of Error dismissed, 265 U.S. 598); McCarty et al. v. Mitchell, 169 Miss. 82, 151 So. 567; Hines v. Green, 125 Miss. 476, 87 So. 649; Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299; Martin Bros. v. Murphree, 132 Miss. 509, 96 So. 691; Fisher v. Westmoreland, 101 Miss. 181, 57 So. 563; O'Brien v. Bates, 211 A.D. 743, 208 N.Y.S. 110; Crispin v. Babbitt, 81 N.Y. 516 at 520; Setzkorn v. City of Buffalo, 126 Misc. 858; Burch v. So. Bell T. & T. Co., 178 Miss. 407, 173 So. 300; Buckley v. United Gas Co., 176 Miss. 282, 168 So. 462; Sec. 6154, Code of 1930; Hercules Powder Co. v. Hammack, 145 Miss. 304, 110 So. 676; Hines v. Cole, 123 Miss. 254, 85 So. 199; Davis v. Green, 260 U.S. 346, reversing 125 Miss. 476, 87 So. 649; Petroleum Iron Works v. Bailey (Ala.), 86 So. 644; Alden Mills v. Pendergraft, 149 Miss. 595, 115 So. 713; Kress v. Crosby (Miss.), 98 So. 437; 39 C. J. 1285; Ala, etc., R. R. Co. v. Harz, 88 Miss. 681, 42 So. 201; Gill v. L. N. Dantzler Lumber Co., 153 Miss. 599, 121 So. 153.
There is a total failure of proof to show any liability on the part of this defendant to the plaintiff.
Great A. & P. Tea Co. v. Majure, 176 Miss. 356, 167 So. 637; Moore Store Co. v. Wells, 111 Miss. 796, 72 So. 228; Craft v. Magnolia Stores, 161 Miss. 756, 138 So. 405; Scott-Burr Stores v. Edgar (Miss.), 177 So. 766.
The lower court should have granted a mistrial on the oral amendment permitted because there was a total departure from the original cause of action asserted in the declaration.
Oliver v. Miles, 144 Miss. 852, 110 So. 666; Gill v. L. N. Dantzler Lbr. Co., 153 Miss. 559, 121 So. 153; Gulf Research Corp. v. Linder, 177 Miss. 123, 170 So. 646.
The amendment was without effect and erroneously made because permitted and proof thereunder adduced without a precedent order of the court, all of which was prejudicial to this defendant.
The court erroneously relied on admissibility of testimony.
The instructions do not correctly state the applicable principles of law on this record. None of these instructions, with the exception of instruction no. 7, informs the jury that in speaking the slanderous words Mr. Rabins, the manager, would have to be acting within the scope of his employment to bind this defendant, and none of the instructions informed the jury that Mr. Rabins, in order to bind the defendant, in addition would have to be furthering some business of the defendant. It is true that the instructions for the defendant include the element of scope of employment and furtherance of business, and perhaps to this extent the error, if any, may be cured, if such error might be corrected by other instructions. Nevertheless, we submit that continually, and in six specific instructions directing the jury's attention solely and only to the alleged unlawful conduct of Mr. Rabins without the necessity of such conduct being in the scope of his employment and in furtherance of the business of this defendant is a prejudicial error that could not be cured and was not cured by other instructions granted.
We submit that punitive damages in a slander action are not based upon the existence vel non of actual malice. This case being in law one in which the principle of qualified privilege applies, actual malice was necessary to the recovery of any damages, and could not form the basis, first of liability, and, second, of compensatory damages, and, thirdly, of punitive damages.
17 R. C. L. 441, 443; Kroger Grocer & Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335; 39 C. J. 537, 547, 592.
The verdict here entered is more than twice the amount of a verdict that has been permitted to stand in the history of the jurisprudence of this state on a slanderous charge of theft.
Hines v. Shumaker, 97 Miss. 669, 52 So. 705; Landrum v. Ellington, 152 Miss. 569, 120 So. 444; N. O. & G. N. R. R. Co. v. Frazier, 158 Miss. 407, 130 So. 493; Reliance Mfg. Co. v. Graham, 181 Miss. 549, 179 So. 341; Kroger Grocery & Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335.
The maximum figure on slander where there has been a charge of theft in this state has been Six Thousand Dollars, and this court has found that a verdict of Five Hundred Dollars was not out of line.
E. W. Stennett and Barnett, Jones & Barnett, all of Jackson, for appellee.
The defendant was not entitled to a peremptory, and the case was properly submitted to the jury.
The occasion was not one of qualified privilege.
La. Oil Corp. v. Renno, 159 Miss. 509, 157 So. 795; 36 C. J. 241, Sec. 205 and page 242, Sec. 206; 17 R. C. L. 341; Holmes v. Royal Fraternal Union, 222 Mo. 546, 121 S.W. 100, 26 L.R.A. (N.S.), 1080; Denver Warehouse Co. v. Holloway, 83 P. 131, 3 L.R.A. (N.S.), 696; Hines v. Shumaker, 97 Miss. 669, 52 So. 705; A. & V. Ry. v. Brooks, 69 Miss. 168, 13 So. 847; Scott-Burr Stores v. Edgar, 181 Miss. 486, 177 So. 766; Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 252.
Actual malice on the part of the defendant was clearly proved.
Scott-Burr Stores v. Edgar, 181 Miss. 486, 177 So. 766.
Malice was shown by an excess of the privilege.
A. & V. Railway v. Brooks, 69 Miss. 168, 13 So. 847; Hill v. Durham House Drainage Co., 79 Hun 335, 29 N.Y.S. 427; Ramsey v. Harrison, 119 Va. 682, 89 S.E. 977.
Malice was shown because of the lack of probable cause to make the charge, and lack of care to ascertain facts.
Kroger Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335; Thompson v. Rake, 118 N.W. 279, 18 L.R.A. (N.S.), 921; Stevenson v. Morris, 288 Pa. 405, 136 A. 234, 50 A.L.R. 335; Hartman v. Hyman, 288 Pa. 78, 134 A. 486.
Malice was shown by the communication itself.
Sunley v. Metropolitan, 132 Iowa 123, 109 N.W. 463, 12 L.R.A. (N.S.), 91; Liddle v. Hodges, 2 Bosw. (N.Y.) 537; Kenney v. Gurley, 208 Ala. 623, 95 So. 24, 26 A.L.R. 813; Stevenson v. Morris, 288 Pa. 405, 50 A.L.R. 335.
Malice established by showing bad faith.
La. Oil Corp. v. Renno, 159 Miss. 509, 157 So. 795; Pate v. Trollinger, 113 Miss. 255, 74 So. 131; Reliance Mfg. Co. v. Graham, 181 Miss. 549, 179 So. 341.
Malice shown by surrounding facts and circumstances.
Malice established because statement denied, and further testified that no grounds or making statement.
Reliance Mfg. Co. v. Graham, 181 Miss. 549, 179 So. 341.
The agent Rabins was acting within the scope of his employment, and in the furtherance of his master's business when he uttered slander.
Richberger v. Am. Ry. Express, 73 Miss. 161, 18 So. 922; Russell v. Palantine Ins. Co., 106 Miss. 290, 63 So. 644; King v. I. C. R. R. Co., 69 Miss. 245, 10 So. 42; Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 252; Y. & M. V. v. Cornelius, 131 Miss. 39, 95 So. 90; Alden Mills v. Pendergraft, 149 Miss. 595, 115 So. 713; Gill v. Dantzler Lbr. Co., 153 Miss. 559, 121 So. 153; So. Bell v. Quick, 167 Miss. 438, 149 So. 107; Scott-Burr Stores v. Edgar, 165 So. 623, 181 Miss. 486, 177 So. 766; N. O. G. N. v. Frazer, 158 Miss. 407, 130 So. 493; S. H. Kress v. Crosby, 98 So. 437.
The defendant was not entitled to a mistrial because there was no departure from the original cause of action.
Y. & M. V. v. Wallace, 90 Miss. 609, 43 So. 469; 1 C. J. 1079, Sec. 232; 1 C. J. 1056, Sec. 190; Brahm v. Gehl, 132 Wis. 674, 112 N.W. 1097; 1 C. J. 1062, Sec. 203; Oliver v. Miles, 144 Miss. 852, 110 So. 666; Gill v. Dantzler Lbr. Co., 153 Miss. 55, 121 So. 153; Gulf Research v. Linder, 177 Miss. 123, 170 So. 646.
The rulings of the court on admissibility of testimony were correct.
The given instructions correctly state the law applicable to this case.
Miss C. R. Co. v. Hardy, 88 Miss. 732, 41 So. 505; Y. & M. V. v....
To continue reading
Request your trial
-
Young v. Jackson
...679, 173 So.2d 640, 646 (1965); Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So.2d 572, 577 (1946); Sumner Stores of Miss. v. Little, 187 Miss. 310, 192 So. 857, 862 (1940). In McCrory Corp. v. Istre, 252 Miss. 679, 173 So.2d 640 (1965), we held that when a communication goes further ......
-
Montgomery Ward & Co. v. Skinner
... 25 So.2d 572 200 Miss. 44 MONTGOMERY WARD & CO., Inc., et al. v. SKINNER. No. 36023. Supreme Court of ... repeated efforts at other stores in Jackson, except that she ... was employed at one store, ... later case of Sumner Stores of Mississippi, Inc., v ... Little, [200 Miss ... ...
-
General Motors Corp. v. Piskor
...course of conduct in fact undertaken by General Motors amounted to a 'reckless disregard of truth.' See Summer Stores of Mississippi v. Little, 187 Miss. 310, 192 So. 857, 862 (1940). Moreover, the evidence indicates that Piskor was forced into the glass-enclosed office where management pre......
-
Tipps Tool Co. v. Holifield
...Fourth Edition, Sec. 287. See also, Scott-Burr Stores Corporation v. Edgar, 181 Miss. 486, 177 So. 766; Sumner Stores of Mississippi, Inc., v. Little, 187 Miss. 310, 192 So. 857. It is next argued on behalf of the appellants that the court erred in permitting the introduction, over the appe......