W. T. Farley, Inc. v. Bufkin

• Decision Date: 02 February 1931
• Docket Number: 29137
• Citation: 132 So. 86,159 Miss. 350
• Court: Mississippi Supreme Court
• Parties: W. T. FARLEY, INC., et al. v. BUFKIN

132 So. 86

159 Miss. 350

W. T. FARLEY, INC., et al. v. BUFKIN

No. 29137

Supreme Court of Mississippi

February 2, 1931

Division A

Suggestion Of Error Overruled, February 16, 1931.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Suit by Clara Smith Bufkin against W. T. Farley, Incorporated, and others. From a part of the judgment rendered, defendants appeal. Reversed, and judgment entered for defendants.

Reversed, and judgment for the appellants.

Dabney & Dabney, of Vicksburg, for appellants.

In an action for slander it has long been laid down as the correct guide that only in the following classes of cases may there be a recovery.

1. Words falsely spoken of a person which impute to the party the commission of some criminal offense involving moral turpitude, for which the party, if the charge be true, may be indicted and punished.

2. Words falsely spoken of a person which impute that the party is infected with some contagious disease where, if the charge is true, it would exclude the party from society.

3. Defamatory words falsely spoken of a person which impute to the party unfitness to perform the duties of an office or employment for profit or the want of integrity in the discharge of the duties of such an office or employment.

4. Defamatory words falsely spoken of a party which prejudice such party in his or her profession or trade.

5. Defamatory words falsely spoken of a person which, although not in themselves actionable, occasion the party special damage.

25 Cyc. 264.

Oral words not included within the first four classes of words actionable per se, as enumerated above, are not as a general rule actionable per se, and without proof of special damage, although tending to expose to public hatred, contempt and ridicule.

25 Cyc. 265; Davis v. Farrington, Walk. 304; Cocke v. Weathersby, 5 S. & M. 333; Woodville v. Pizatti, 80 So. 491.

There is nothing actionable per se in speaking the words "liar," "crook" and "no lady."

Interstate Co. v. Garnett, 123 So. 373; Bindfield v. Howeth, 107 Md. 278, 68 A. 566; 24 L. R. A. (N. S.) 583.

Oral words imputing to a person not in business a state of indebtedness or inability to pay his debts are not actionable per se.

Rock v. McClarnon, 95 Ind. 415; Elliot v. Ailsbury (Ky.), 5 Am. Dec. 631; Buck v. Hersey, 31 Me. 558.

Oral imputations of falsehood are not actionable per se unless they charge a crime, or affect one in his business or profession.

Studdard v. Trucks, 31 Ark. 726; Smalley v. Anderson, 4 T. B. Mon. 367; Barnes v. Trundy, 31 Me. 321; Harding v. Brooks, 5 Pick. 244; Cook v. Cook, 100 Mass. 194.

It is not slanderous per se to say of one that he cheated the government.

Havemeyer v. Fuller (N. Y.), 10 Abb. N. Cas. 9, 60 How. Pr. 316; Harvey v. Boies, 1 Penn. & W. 12; Kimmis v. Stiles, 44 Vt. 351.

An oral charge of dishonesty or rascality is not actionable per se, unless such charge is uttered or spoken of a person in his business or employment, or unless there is an implication of the commission of a crime.

Knight v. Blackford (Dist. Col.), 51 Am. Rep. 772; Porter v. Choen, 60 Ind. 338; Bays v. Hunt, 60 Iowa 251; Winter v. Sumvalt (Md.), 3 Harr. & J. 38; Richmond v. Post, 69 Minn. 457; Rammell v. Otis, 60 Mo. 365; Pike v. Van Wormer (N. Y.), 5 How Pr. 171; Colbert v. Caldwell (Pa.), 3 Grant. 181.

It is not actionable per se to say of a person that he is a rogue.

Ford v. Johnson, 21 Ga. 399; Mills v. Taylor (Ky.), 3 Bibb 469; Artieta v. Artieta, 15 La. Ann. 48; Winter v. Sumvalt (Md.), 3 Harr. & J. 38; Quin v. O'Gara, 2 E. D. Smith 388; Oakley v. Farrington (N.Y.), 1 Am. Dec. 107; Idol v. Jones, 13 N.C. 162; Horst v. Borbridge, 57 Pa. St. 62.

Mere words of common abuse are not actionable per se.

Davis v. Tacoma R., etc., 66 L. R. A. 802; Robertson v. Edelstein, 104 Wis. 440; Ritchie v. Stenius, 73 Mich. 567.

Chaney & Culkin and Vollor & Kelly, all of Vicksburg, for appellee.

In considering and determining the meaning of a word, it must be considered in the connection in which it is ordinarily used and understood by the public in the community in which it is used, and liability depends, not on what one intended to imply by the use of the language, but on what the language actually implied, or what it might reasonably have implied, as understood by those in whose presence it was spoken, and by those to whom it was spoken. For one to say in this country, and more especially in Mississippi, that a woman is not a lady and that she is crooked, means that she is unchaste and lewd.

Cooper v. Seaverns, 81 Kans. 267; Interstate Company v. Garnett, 154 Miss. 325; Battles v. Tyson, 77 Nebr. 563.

The language complained of was actionable.

Furr v. Speed, 74 Miss. 423; Trimble v. Yazoo & Mississippi Valley Railroad Company, 103 Miss. 1; Valley Dry Goods Co. v. Buford, 114 Miss. 414; Nabors v. Mathis, 115 Miss. 564; Doughtery v. L. B. Price Mercantile Co., 132 Miss. 39; Interstate Co. v. Garnett, 154 Miss. 325; Wrought Iron Range Co. v. Boltz, 123 Miss. 550.

Argued orally by J. B. Dabney, for appellant.

OPINION

Cook, J.

This suit was instituted in the circuit court of Warren county, and the declaration consists of two counts. The first count seeks to recover damages for mental suffering and physical pain alleged to have been suffered by the plaintiff, appellee here, as a result of the use toward her of certain abusive and insulting language by a collector for the defendants, appellants here. The declaration charged that when this collector called on her to collect a delinquent account owing to the appellant W. T. Farley Co., Inc., he used toward her the following language: "You have got our goods and don't want to pay for them. This is a hell of a come off. If you were a lady you would pay us. You are just a bunch of crooks and you are not ladies, and you are just damn liars. We don't want your damn rags back. " This count charged that this language, and other language of similar import and meaning, was spoken of and to the appellee "in a violent, insulting, angry, rude, unlawful and threatening manner, and in the prosecution of the defendant's business," and that at said time appellee was "in a sick and infirm condition, and was weak and nervous and was physically unable to leave her sick bed, and that by the use of such violent, abusive, insulting and profane language, of and to her, she was made sick, sore and lame for a long period of time, from thence hitherto, and was caused to suffer a nervous break-down, which kept her from her regular employment for about three months, and that, in addition to all of which, she was put to great expense endeavoring to be cured of the injuries so suffered." At the conclusion of the testimony offered at the trial, the court peremptorily instructed the jury to find for the defendants on this count, and from this action of the court there is no appeal.

The second count of the declaration is an action for slander, and charges that the appellants' collector used the language above quoted, of and to the appellee "in the presence of her mother, Mrs. Luria Smith, J. B. Price, and others, with the wilful, wicked and malicious intention of bringing her good name, fame and credit into...