Taylor v. Standard Oil Co.

• Decision Date: 06 February 1939
• Docket Number: 33521
• Citation: 186 So. 294,184 Miss. 392
• Court: Mississippi Supreme Court
• Parties: TAYLOR v. STANDARD OIL Co

186 So. 294

184 Miss. 392

TAYLOR v. STANDARD OIL Co

No. 33521

Supreme Court of Mississippi, Division A

February 6, 1939

APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Slander action by J. S. Taylor against the Standard Oil Company. From a judgment entered on a directed verdict for defendant plaintiff appeals. Affirmed.

Affirmed.

Barnett Jones & Barnett and D. C. Enochs, all of Jackson, and Frank F. Mize, of Forest, for appellant.

Appellant was fired by the defendants because of a shortage at the station.

The words alleged and proved to have been spoken of and to appellant by the appellee Reed were slanderous per se.

Great Atlantic & Pacific Tea Co. v. Majure, 176 Miss. 356, 167 So. 637; Louisiana Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705, 98 A.L.R. 1296; Hines v. Shumaker, 97 Miss. 669, 52 So. 705; Doherty v. L. B. Price Mereantile Co., 132: Miss. 39, 95 So. 790; W. T. Farley, Inc. v. Bufkin, 159 Miss. 350, 132 So. 86.

The slander was published.

Kroger Grocery & Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335.

The language used was not privileged.

Louisiana Oil Corp. v. Renno. 159 Miss. 350, 157 So. 705.

Malice was shown in the speaking of the slanderous words. Wanton and reckless disregard of whether words spoken are true or not amounts to malice.

Missouri Pac. Transp. Co. v. Beard, 179 Miss. 764, 176 So. 156.

An unnecessary publication tends to show malice and is sufficient 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 v. 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. 705, 98 A.L.R. 1296.

Appellees say that the defamatory language complained of did not charge a crime. We answer that the ordinary and accepted meaning of such language under the circumstances used is that it does charge a crime. But even if it were conceded that it did not charge a crime, under The Great Atlantic and Pacific Tea Co. v. Majure, 176 Miss. 356, 167 So. 637, and under the rule laid down in Farley v. Bufkin, 159 Miss. 350, 355, 132 So. 86, that words imputing a want of integrity or capacity, whether mental or pecuniary, in the conduct of a profession; trade, or business are slanderous per se, appellees would still be liable for use of the said defamatory language. But, appellees contend that the declaration contains an innuendo which charges that the said defamatory language used meant that appellees were charging appellant with theft or embezzlement, and that appellant must stand or fall on the said innuendo. The answer is that the innuendo does not change the character or meaning of the words published to which it is applied. If the innuendo were not true, and the words, taken in their natural and obvious signification, are actionable in themselves, as we believe to be true in this case, then the unproved innuendo should be rejected as mere surplusage.

Continental National Bank v. Bowdre, 92 Tenn. 723, 23 S.W. 131; Grand Union Tea Co. v. Lord, 231 F. 390.

We contend that the question of whether or not there was a publication of the slanderous language as charged in the case at bar was a jury question and that the court was in error in not allowing the jury to decide the question.

Loranger v. Loranger, 74 N.W. 228; Roemer v. Jacob Schmidt Brewing Co., 157 N.W. 649, L.R.A. 1916E 771; United Cigar Stores Co. v. Young, 36 App. D. C. 390; Pendrock v. F. W. Woolworth Co., 243 N.W. 648; Kroger Grocery & Baking Co v. Harpole, 175 Miss. 227, 166 So. 335.

Lyell & Lyell, of Jackson, for appellees.

It is well settled upon principles of pleading generally, and in actions for libel or slander, that the innuendo counted upon in the declaration determines the meaning upon which plaintiff intended to rely, therefore he cannot abandon the innuendo upon the trial and rely upon a different meaning.

Norton v. Livingston, 64 Vt. 473, 24 A. 247.

The language used by Reed was not slanderous per se or per quod.

Key v. Armstrong, 151 P. 572; Missouri Pacific Transp. Co. v. Beard, 179 Miss. 764, 176 So. 156; Hardeman v. Sinclair Refining Co., 41 Ga.App. 315, 152 S.E. 854; U.S. P. & G. Co. v. State of Oklahoma, 43 F.2d 532; Walgreen Co. v. Cochran, 61 F.2d 357; Thomas v. McShan, 99 Okla. 88, 225 P. 713; Whitley v. Newman, 9 Ga.App. 89, 70 S.E. 686; Grand Union Tea Co. v. Lord, 231 Fed. (C. C. A.) 390; Pittsburg, A. & M. Ry. Co. v. McCurdy, 8 A. 230.

Words charging merely that an officer as Collector of Customs has failed to account for certain sums paid to him have been held not to charge embezzlement, and that the meaning of alleged slanderous words cannot be enlarged by innuendoes to impute a criminal offense, and where the words set out are not capable of such construction, the declaration will be adjudged bad on demurrer.

Goodrich v. Hooper, 97 Mass. 1, 93 Am. Dec. 49.

No malice of any type or nature was shown on trial of this cause.

Walgreen Co. v. Cochran, 61 F.2d 357; Missouri Transp. Co. v. Beard, 179 Miss. 764, 176 So. 156; ScottBurr Stores Corp. v. Edgar, 177 So. 766; Newell on Slander and Libel (4 Ed.), sec. 271; Newell on Slander and Libel (3 Ed.), sec. 397.

Whatever the language used by Reed, it was upon an occasion of qualified privilege.

Scott-Burr Stores Corp. v. Edgar, 177 So. 766; Newell on Slander (4 Ed.), page 725.

The rule that the qualified privilege of the occasion is not lost where a stranger present may have overheard the oral communication, and the presence of the stranger has not been sought or procured by the one making the privileged communication, is further supported and sustained by 36 C. J. 1249.

Broughton v. McGrew, 39 F. 672, 5 L.R.A. 406; Phillips v. Bradshaw, 181 Ala. 541, 61 So. 909; Hoover v. Jordan, 27 Colo.App. 515, 150 P. 333; Sheftall v. Georgia Cent. R. Co., 123 Ga. 589, 51 S.E. 646; Burton v. Dickson, 104 Kan. 594, 180 P. 216, 775; Conrad v. Roberts, 95 Kan. 180, 147 P. 795, L.R.A. 1915E 131, Ann. Cas. 1917E 891; Coleman v. MacLennan, 78 Kan. 711, 98. P. 281, 130 A. S. R. 390, 20 L.R.A. (N.S) 361; Redgate v. Roush, 61 Kan. 480, 59 P. 1050, 48 L.R.A. 236; Hatch v. Lane, 105 Mass. 394; Brow v. Hathaway, 13 Allen, 239; McKenzie v. William J. Burns International Detective Agency, 149 Minn. 311, 183 N.W. 516; Mertens v. Bee Pub. Co., 5 Neb. 592, 99 N.W. 847; Fahr v. Hayes, 50 N.J.L. 275, 13 A. 261; Bingham v. Gaynor, 68 Misc. 565, 125 N.Y.S. 216, 203 N.Y. 27, 98 N.E. 84; Arnold v. Ingram, 151 Wis. 438, 138 N.W. 111, Ann. Cas. 1914C 976; Padmore v. Lawrence, 11 A. & E. 380, 39 E. C. L. 217, 113 Reprint 460; Toogood v. Spyring, 1 C.M. & R. 181, 149 Reprint 1044, 9 E. R. C. 55; Crisp v. Gill, 5 Wkly. Rep. 494; Gorst v. Barr, 13 Ont. 644; Wells v. Lindop, 13 Ont. 434; Pittard v. Oliver, 1 Q. B. 474; Taylor v. Hawkins, 16 Q. B. 308, 71 E. C. L. 308, 117 Reprint 897.

Argued orally by Ross R. Barnett, for appellant, and by Garland Lyell, for appellee.

OPINION

Griffith, J.

Appellant and J. B. Stewart were respectively the junior and senior commission managers of the large service station of appellee company at the corner of Amite and North State Streets in the City of Jackson. It was their duty, in co-operation with each other, and under a plan which they themselves had inaugurated, to make at frequent intervals correct reports of services, sales, and receipts and to correctly and fully account to their employer for all such receipts, and as to the disposition of the various petroleum and other products and supplies handled by or under them.

These manager employes had been paid partly on the basis of a fixed salary and partly by commissions. Their contracts of employment were terminable at the will of the employe or the employer. It had been decided that on and after June 1, 1937, these employes would be put on a fixed salary without any additional compensation by way of commissions.

To this end a complete audit of the accounts of the said commission managers was made on May 31, 1937, but this audit, the correctness of which appellant does not deny, showed a shortage against them of something more than $ 200. During the afternoon of that day and while the audit was not yet complete, appellant's attention, as the record fairly discloses, was called to the fact that the figures, as compiled up to that hour, showed a discrepancy of about $ 196; but appellant admits that he offered no explanation, and, in fact, appears to have manifested but little active interest in the matter.

The record discloses further that going back over the daily reports of these commission managers from January 1, to May 31, 1937, there were numerous errors and inaccuracies therein, sometimes against the managers and sometimes against their employer, and that it was repeatedly necessary to go to considerable trouble in time and effort to get these discrepancies properly adjusted and reconciled, and as to which appellant admits he was more than once cautioned and warned. It is proved by the documentary exhibits that in the local head accounting office of appellant there was kept what was termed an "Over and Short Account, " and this account, the correctness of which is admitted, shows that in the reports made by appellant himself during the five months mentioned there were eighty-nine over or short items. And it is found that as to one item, on the report of appellant for January 6, 1937, the appellant himself in admitting a shortage of $ 18.72, used the following words: "Short--18.72--84 gal. error in meter reading, " these words being in his own handwriting.

The superintendent in charge of the various stations of appellee company in Jackson was J. C. Reed. When,...