W. T. Farley, Inc. v. Smith

• Citation: 130 So. 478,158 Miss. 404
• Decision Date: 03 November 1930
• Docket Number: 28847
• Court: Mississippi Supreme Court
• Parties: W. T. FARLEY, INC. v. SMITH

130 So. 478

158 Miss. 404

W. T. FARLEY, INC. v. SMITH

No. 28847

Supreme Court of Mississippi

November 3, 1930

Division B

Suggestion of Error Overruled, November 17, 1930.

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

Action by Mrs. Luria Smith against W. T. Farley, Inc. From the judgment, defendant appeals. Reversed and remanded.

Reversed and remanded.

Dabney & Dabney, of Vicksburg, for appellant.

A conspiracy may be proved like other controverted facts, by the acts of the parties, or by circumstances and a positive agreement or common purpose or design need not be sworn to by a witness and an instruction telling the jury that a conspiracy maybe proven by circumstantial evidence should be granted.

Street v. State, 43 Miss. 1; Osborn v. State, 99 Miss. 410; Pickett v. State, 139 Miss. 529; 5 R. C. L., sec. 37, p 1088.

A person who instigates or procures a libelous communication to be published against himself for the purpose of predicating a suit for damages on it, cannot recover in such an action.

17 R. C. L., sec. 62, Libel & Slander.

An instruction as to the credibility of witnesses which omits the essential qualifying words, "wilfully, knowingly and corruptly" is erroneous.

White v. State, 52 Miss. 216; V. & M. R. R. Co. v. Hedrick, 62 Miss. 28; Miller v. State, 35 So. 690; Sardis & D. R. Co. v. McCoy, 85 Miss. 391; Davis v. State, 89 Miss. 119; Bell v. State, 90 Miss. 104; Turner v. State, 95 Miss. 879; Shelton v. State, 126 So. 390; D'Antoni v. Albritton, 126 So. 836; McClure v. State, 128 So. 764.

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

An instruction telling the jury that they might, on circumstantial evidence alone without any regard to the other evidence, find that a conspiracy had been proved is a comment on the evidence. There was no evidence in this case on which to base such an instruction. For these reasons it was properly refused.

An instruction complained of in the instant case telling the jury that if they believe any witness has wilfully sworn falsely, not wilfully and falsely, his testimony might be disregarded, etc., is not erroneous. If any witness has wilfully sworn falsely, it follows, as a matter of course, that he intended to swear falsely, and if he intended to swear falsely, and did swear falsely, there can be no possible escape from the proposition that he testified corruptly.

Black's Law Dictionary; Anderson's Law Dictionary defining "willful. "

Argued orally by J. B. Dabney, for appellant, and by R. M. Kelly, and A. A. Chaney, for appellee.

OPINION

Griffith, J.

The following instruction requested by the appellant was refused by the court:

"The court instructs the jury for the defendant that direct evidence is not essential to meet the legal requirements in proving a conspiracy, but that a conspiracy may be proved by circumstantial evidence, and if the jury believe from all the circumstances as disclosed by the evidence in this case that this plaintiff was a party to a conspiracy for the purpose of instituting and maintaining this suit, they must find for the defendant."

Appellee seeks to justify the refusal of that instruction by the contention that there was substantially no testimony to warrant it. On the contrary, the chief defense made by appellant, and a large part of its testimony, was exactly upon the theory sought to be recognized by the said instruction. And the refusal of the instruction cannot be said to have been harmless, since it is a matter of common knowledge that some jurors act with stubborn hesitancy on circumstantial evidence. The existence of this trait of character among some men is so well known that it has always been admitted, in a relevant case, as a...