Tattis v. Karthans, 45046

• Decision Date: 18 November 1968
• Docket Number: No. 45046,45046
• Citation: 215 So.2d 685
• Parties: Ellen Anthony TATTIS v. N. A. (Nick) KARTHANS and Alec Dennery.
• Court: Mississippi Supreme Court

Page 685

215 So.2d 685

Ellen Anthony TATTIS v. N. A. (Nick) KARTHANS and Alec Dennery.

No. 45046.

Supreme Court of Mississippi.

Nov. 18, 1968.

Bernard W. N. Chill, Jackson, for appellant.

Dan M. Lee, Ray, Lee & Moore, Jackson, for appellees.

JONES, Justice.

This is a case filed in the Circuit Court of the First Judicial District of Hinds County, Mississippi, seeking to recover damages under the provisions of our 'Actionable Word Statute.' A demurrer to the declaration, on the ground 'That the alleged statements contained in the amended declaration are not actionable under Section 1059 of the Mississippi Code of 1942, as amended,' was sustained by the lower court and the case was brought here. The first part of Section 1059 reads as follows:

All words which, from their usual construction and common acceptation, are considered as insults, and calculated to lead to a breach of the pece, shall be actionable; and a plea, exception or demurrer shall not be sustained to preclude a jury from passing thereon, who are the sole judges of the damages sustained * * *.

The declaration charged 'That at or about midnight between October 15th and 16th, 1966, at Charlotte, North Carolina, defendant in the presence of a number of persons (* * * including among others, the appellee, Alec Dennery * * *) maliciously and with the intent to cause it to be believed that this plaintiff was an immoral and unfit person who used filthy and unbecoming language * * *' spoke certain words, and that the defendant Dennery thereafter published the said words by repeating to various persons what his codefendant had said.

Although the declaration did not contain certain provisions of the statute above quoted, it was charged by the plaintiff that the action was brought under said statute; and it was so treated by the defendant and the court below. The lower court held a demurrer good, finding that the words were not actionable under said section.

Though the demurrer was filed as a special demurrer, we are treating it as a general demurrer and considering whether under the law said words, with the allegations of the declaration, are actionable under the Mississippi statute.

The statute itself provides that no demurrer shall be interposed to prevent the jury from passing upon the question as to whether said words are within the statute. The purpose of this statute and the reason for not permitting the court to construe the said words are stated int he case of Barger v. Hood, 87 W.Va. 78, 81, 82, 104 S.E. 280, 282 (1920), as follows:

None of the grounds of the demurrer urged to this declaration involved the construction of the language used, and it is urged that the inhibition of that statute only goes to the extent of denying the right of the court to construe the language, and not to the right of the court to entertain a demurrer for other reasons. In Poling v. Pickens, 70 W.Va. 117, 73 S.E. 251, Ann.Cas.1913D, 995, a demurrer to the declaration in an action of this kind was under consideration, and it was held that it did not lie, but the ground of demurrer urged there was that the language used was not, according to its ordinary acceptation, insulting, and that decision is only authority for the principle that a demurrer may not be entertained for that reason. This statute was passed in aid of acts to prevent duelling, the argument being that language of an insulting character was often used under such circumstances that the law offered no redress, and because of this fact those insulted were inclined to resort to personal violence for satisfaction. The Legislature evidently contemplated that juries were better qualified to determine what language would be insulting to a gentlemen's moral sensibilities than the judges who, because of their habits of thought, may acquire a more or less pachydermous disposition, and be likely to hold language which to others might seem violent or insulting as not insulting, or not likely to produce a breach of the peace. It cannot be doubted but that in the construction of such language the habits of thought and methods of life of those charged therewith play a large part, and the beneficent results accomplished by this legislation would seem to justify the confidence of the Legislature in the juries charged with the trial of such cases. It is argued that a jury might construe the mildest kind of language as insulting and tending to a breach of the peace, and the courts would have no power to correct their verdict upon that ground. A review of the cases which have arisen under this statute justifies the conclusion that the juries can be trusted to protect the rights of individuals in this regard, and whether this be true or not the Legislature undoubtedly has the power to place upon the jury this duty, instead of upon the court. The reason for the enactment of this statute makes it quite clear that it was the entertain limit the power of the court to entertain a demurrer only when that demurrer was based upon a construction of the language, and not when it is founded upon some such cause as misjoinder of parties, as is the case here.

In actions brought under this statute, the court has the power to pass on a demurrer where the demurrer is not based upon a construction of the words but on some other ground evidenced by the declaration.

In Verner v. Verner, 64 Miss. 321, 1 So. 479 (1886), the declaration showed the defendant was a witness in a judicial proceeding and a demurrer was sustained on the ground of the immunity of a witness in a judicial proceeding from liability to such an action.

In Dedeaux v. King, 92 Miss. 38, 45, So. 466 (1907), the declaration stated the defendant was an election manager and that the words were spoken in the discharge of his duties. A demurrer was there sustained not on the construction of the words but because, in view of the defendant's official position, the declaration was fatally defective when it failed to charge malice; to negative the truth of the words spoken; or to show the words were not said in good faith. It was unnecessary in either of these cases to construe the words.

In Davis v. Woods, 95 Miss. 432, 437-438, 48 So. 961 (1909), this Court reversed a case where a demurrer to the declaration had been sustained, saying:

The declaration states a cause of action in the very words of the statute, and the court should have overruled the demurrer to the declaration. It is stated in the declaration what the words were, and it is further alleged that, from their usual construction and common acceptation, they were considered insulting and calculated to lead to a breach of the peace. Whether the words were such as are usually considered insulting and calculated to lead to a breach of the peace is expressly required by the statute to be submitted to a jury. Under this statute the jury juge, not only of the amount of the damages sustained, but they are also the judges of whether or not the words used were insulting and calculated to lead to a breach of the peace-in other words, whether the words were actionable, and under the allegations of the declaration it was beyond the power of the court to take away from the jury the consideration of these questions. Crawford v. Mellton, 12 Smedes & M. 328; Scott v. Peebles, 2 Smedes & M. 546. A cursory examination of the case of Dedeaux v. King, 92 Miss. 38, 45 So. 466, will readily differentiate the opinion in that case from any holding here. The words charged to have been said by King to Dedeaux were: 'You cannot vote, because you are a convict. I say you are a convict, and convicts cannot vote here.' It is to be remembered under our laws that a convict is deprived of the right of suffrage, and at the time King made this statement to Dedeaux he was acting as an election manager, charged with the duty of challenging every vote believed by him to be illegal. The court held in that case that the declaration was demurrable, because it did not allege that King used the words with malice, or that the statement of the election manager was not true. In other words, the declaration did not show that, although the words were spoken to Dedeaux as alleged, King was not acting in the lawful discharge of a duty required of him in making this statement. The case here presents quite a different question.

In Hodges v. Cunningham, 160 Miss. 576, 581, 135 So. 215, 217 (1931), the Court again held that:

Under section 11, Code of 1930, whether the words charged to have been spoken of the plaintiff are calculated to lead to a breach of the peace is for the determination of the jury.

The cases on which the appellees' rely are such as Cooper v. Davidson, 172 Miss. 74, 157 So. 418 (1935). This was a case where all of the evidence had been taken and it appeared, without doubt, that the words were spoken in a business deal and thus, under the evidence showing the surrounding circumstances, the words could not be considered actionable.

In that case, the Court said:

To apply the statute literally, the use of any words, without reference to the occasion or purpose of their use, which, from their usual construction and acceptation, are considered as insults and calculated to lead to a breach of the peace, would be actionable. To so construe the statute would reduce it to an absurdity and prevent one from using words of the character condemned by the statute when necessary to be used in asserting or defending, in good faith, a claimed right or duty. This court has uniformly declined to so construe the statute. The circumstances under which the words were used must appear. Warren v. Norman, Walk, 387. And, if the occasion is such as to render it necessary or proper for the use of the words, they are not actionable, if used in good faith and without any intention to insult. Verner v. Verner, 64 Miss. 321, 1 So. 479; Dedeaux v. King, 92 Miss. 38, 45 So. 466; Winton v. Patterson, 152 Miss. 158, 119 So. 161; and Chaffin v. Lynch, 83 Va. 106, 1 S.E....