Tipps Tool Co. v. Holifield

• Citation: 67 So.2d 609,218 Miss. 670
• Decision Date: 09 November 1953
• Docket Number: No. 38850,38850
• Parties: TIPPS TOOL CO. et al. v. HOLIFIELD.
• Court: Mississippi Supreme Court

Page 609

67 So.2d 609

218 Miss. 670

TIPPS TOOL CO. et al. v. HOLIFIELD.

No. 38850.

Supreme Court of Mississippi.

Nov. 9, 1953.

Beard, Pack & Ratcliff, Laurel, for appellants.

Collins, Collins & Brown, Laurel, for appellee.

KYLE, Justice.

Lavon Holifield, as plaintiff, brought this action in the Circuit Court of Jones County against Tipps Tool Company, a corporation, and A. L. Lowery, defendants, to recover damages for an alleged slander. The trial resulted in a verdict and judgment for the plaintiff in the sum of $10,000 against both defendants. From that judgment the defendants prosecute this appeal.

The appellant, Tipps Tool Company, owned and operated a large foundry and tool works business in the City of Laurel. A. L. Lowery was the appellant's welding and fabricating foreman. The company employed between 40 and 50 men. The appellee, Lavon Holifield, on January 28, 1952, was employed by the Tipps Tool Company as a truck driver and welder's helper. The appellee was 21 years of age and had a wife and one child two years of age. He had been employed by the Tipps Tool Company for a period of approximately 18 months, and earned $1.05 per hour.

The plaintiff alleged in his declaration that on January 28, 1952, around noon of that day, while he was engaged in the performance of his duties as an employee of the Tipps Tool Company, he was told to report to the office of the company, and when he reported to the office there were present in the office the defendant A. L. Lowery, how was the welding and fabricating foreman of the company, Bob Sigler, assistant to the general manager, S. W. Holston, construction foreman, Leroy Hodge, an employee who had delivered the message to the plaintiff requesting him to report to the office, and Jack McDill, the attorney for Tipps Tool Company; that there were also present other employees of the company and other persons unknown to the plaintiff; that immediately after the plaintiff entered the office, Jack McDill addressed the plaintiff in a violent, rude, and discourteous manner as follows, 'What were you doing stealing?' The plaintiff alleged that he was shocked at the remark made to him by the company's attorney and said, 'I haven't stole anything.' Jack McDill then said, 'Well, what about that paint you got?' The plaintiff stated that he had some paint at his house but that he had not stolen it, and had never stolen anything in his life. The plaintiff alleged that the defendant A. L. Lowery then spoke to the plaintiff in a malicious, violent, rude and discourteous manner as follows: 'We ought to go out to his house (meaning plaintiff's home) and see what he (meaning plaintiff) has got. We want to catch who has been doing the stealing around here and we are going to your house and take a look. We have been missing gauges and hoses and tools and you've been getting them. And you've got a whole damn cutting rig too. If you haven't got them at your house you've disposed of them.' The plaintiff alleged that A. L. Lowery then took the plaintiff into custody, and along with Mr. Holston and in the presence of all the employees of the company, who had ceased work during the lunch hour, marched the plaintiff to the place where the plaintiff's car was parked, and lifting up the trunk of the plaintiff's car said in the presence and hearing of Holston and other employees: 'If every one of them son of a bitches would get an axe like that, look where we would be.' The plaintiff alleged that Lowery then put the plaintiff in a pickup truck belonging to the company, and along with Holston took the plaintiff to the plaintiff's home and proceeded to search his premises; that Lowery and Holston went into the plaintiff's garage, and picked up two buckets of dried-up paint and threw them in the back of the pickup truck; and that Lowery then took the plaintiff back to the office of the company, where Jack McDill resumed his questioning of the plaintiff. The plaintiff charged that Jack McDill asked the plaintiff in a malicious, violent, rude and discourteous manner, 'What did you do with the gauges and torches and things that you stole out there? * * * Where did you put them that is what I want to know, where are those gauges and things?' The plaintiff alleged that other similar charges were made against him by Lowery, and that the interview was finally ended by Lowery saying to him, in a malicious and accusing manner, 'I am going to give you your time for stealing.'

The plaintiff alleged that the above slanderous statements were spoken to him by Jack McDill and A. L. Lowery without any basis whatsoever for suspecting him of the various crimes that he was charged with, and without any probable cause; and that the language thus maliciously spoken was spoken with the intent to injure the plaintiff in his good name, fame and reputation; that all of said charges were untrue; and that as a result of said charges the plaintiff had been injured and damaged in his good name, fame and reputation.

The defendants in their answer denied the allegations of the declaration concerning the slanderous statements made by McDill and Lowery; and the defendants denied that the plaintiff was taken into custody or treated discourteously during the inquiry, or that the plaintiff was accused of stealing. The defendants averred the truth to be that the plaintiff was questioned about items which he admitted taking, and that Lowery and Holston accompanied the plaintiff to his home at the plaintiff's request to receive back the paint that the plaintiff had taken. The defendants later filed an amendment to their answer, in which they averred that an statements made by them during their interviews with the plaintiff at the times and places mentioned in the declaration were privileged communications spoken upon a privileged occasion; that the statements made by them were made in the course of an investigation of reported thefts, upon probable cause, in good faith, and without malice toward the plaintiff, and to persons having a common interest; and that the defendants were not liable therefor.

The plaintiff, testifying in his own behalf, related the facts concerning the above mantioned interviews as alleged in his declaration. The plaintiff testified that the slanderous statements alleged to have been made by McDill and Lowery were made by them in substantially the same language as set out in the declaration. The plaintiff stated that when he returned to the office with Lowery and Holston, after their visit to his home, McDill said to him, 'What did you do with the gauges and torches and things you stole out there? * * * I want to know where you put them,' and that the plaintiff again told him that he had not stolen any of them. The plaintiff testified that Lowery then asked him, 'What about that 20-ton jack you got, what did you do with that?' The plaintiff testified that the axe and a 5-gallon oil can found in his automobile while the investigation was in progress belonged to his brother, and that he had borrowed it from his brother; and that the 5-gallon paint cans found at his home, with small quantities of paint in them, were there when he moved into the house a short time before the investigation was made. The plaintiff testified that there were several women in the office within hearing distance when the charges were made against him by McDill and Lowery, and that there were employees in the yard within hearing distance when Lowery opened the trunk of his automobile and accused him of stealing the axe. He denied that he had stolen the axe or the 5-gallon can, or that he had admitted stealing the same at any time.

J. J. Blackledge was called as a witness on behalf of the plaintiff, and stated that he was employed by Tipps Tool Company on January 28, 1952, and that while he was working on his car, which was parked near the blacksmith shop not far from the plaintiff's car, he saw a group of people crowded around the plaintiff's car. Blackledge stated that Mr. Lowery passed him while he was working on his car, and that he asked Mr. Lowery, 'What's the matter, did somebody get killed or something?' Lowery said, 'No, that darned Lavon Holifield stole some stuff from Tipps Tool Company and we found it there in his car.' Lewis Holifield, the plaintiff's brother, testified that he had let Lavon have the axe and the 5-gallon oil can a short time before the investigation was made. The plaintiff's wife, Mrs. Lavon Holifield, testified that when her husband arrived at her home with Lowery and Holston, who proceeded to search the premises, she asked her husband what was wrong, and before he could say anything Lowery, said, 'He stole everything we got over there * * * We come over here to get it.' Mrs. Holified also stated that the axe that the plaintiff had was an axe that his brother had loaned to him, and that the paint cans which Lowery and Holston carried back to town with them were on the premises at the time she and her husband moved in. Several witnesses testified that the plaintiff's general reputation for honesty and integrity in the community in which he lived prior to January 28, 1952, was good.

Jack McDill was called as the first witness for the defendant. He stated that he was called to the office of Tipps Tool Company on January 28, 1952, at the instance of Bob Sigler, the assistant general manager, for the purpose of assisting in an inquiry concerning the loss of certain tools and equipment belonging to the company, including an axe that Lavon Holifield was reported to have placed in the back of his automobile. McDill stated that the questioned Holifield in the private office of the company, and that Mr. Lowery, Mr. Sigler and Mr. Holston were present. He stated that he told Holifield that he was a lawyer representing Tipps Tool Company and he wanted to ask him some questions; that he did not accuse Holifield of stealing. He asked Holifield what he intended to do with the axe that he had placed...