Willis v. McCarty-Holman Co.
| Decision Date | 29 January 1940 |
| Docket Number | 34008 |
| Citation | 187 Miss. 381,193 So. 337 |
| Court | Mississippi Supreme Court |
| Parties | WILLIS v. MCCARTY-HOLMAN CO. et al |
APPEAL from circuit court of Hinds county HON. J. P. ALEXANDER Judge.
Action in tort by Mrs. M. W. Willis against McCarty-Holman Company and others. From an adverse judgment, plaintiff appeals. Affirmed.
Affirmed.
James B. Sykes and Frank T. Williams, of Mendenhall, and Lotterhos & Travis, of Jackson, for appellant.
The language used was slanderous per se. The only reasonable interpretation of the language used is, under all circumstances, that a charge of larceny was intended.
Kennington-Saenger v. Weeks et al., 168 Miss. 566; I. C. R. Co. v Wales, 177 Miss. 875; Wrought Iron Range Co. v Boltz, 123 Miss. 550; Taylor v. Standard Oil Co. (Miss.), 186 So. 294; Great A. & P. Tea Co. et al. v. Majure, 176 Miss. 350; Kroger Grocery & Baking Co. v. Harpole, 175 Miss. 227.
The language used was understood in a defamatory sense by one of the witnesses who knew all the surrounding circumstances.
Conroy v. Breland et al. (Miss.), 189 So. 814; Taylor v. Standard Oil Co. (Miss.), 186. So. 294; Holmes v. T. M. Strider & Co. et al. (Miss.), 189 So. 518.
The occasion was not one of privilege.
The burden of proof to establish qualified privilege is on the one who claims the privilege.
36 C. J. 1218, sec. 166; Williams v. Kroger Grocery Co., 1 A.2d 495; Skillern v. Brookshire, 58 S.W.2d 545.
Even if the charge were privileged the privilege was exceeded and malice shown.
Language exceeding the necessity of the occasion exceeds privilege.
Hines v. Shoemaker, 97 Miss. 669; Hodges v. Cunningham, 160 Miss. 576; Saenger Theatre Co. v. Hearndon, 180 Miss. 791.
Privilege is exceeded or lost by publication in presence of customers.
Perry Bros. Variety Store v. Layton et al., 25 S.W.2d 310.
Where improper motives are unnecessarily imputed there is evidence of malice.
Newell on Libel and Slander (3 Ed.), Sec. 397.
When a party denies having uttered the slander, proof that he did, when taken in connection with the fact that no effort was made to prove the truth of the utterance, is sufficient evidence of malice to go to the jury.
La. Oil Corp. v. Renno, 173 Miss. 609; Great A. & P. v. Majure, 176 Miss. 350.
The facts show malice in this case.
There was an infringement of a legal right so as to make defendant liable under the third count.
The privilege, power, and duty of the cashier to collect must be exercised without insult, abuse, or defamation.
Saenger Theatre Co. v. Hearndon, 180 Miss. 791.
The acts of the cashier were negligent as creating an unreasonable risk of emotional disturbance.
Doherty v. Miss. P. & L. Co., 178 Miss. 204; Restatement on Torts, Secs. 306, 312; Miss. Law Journal, Vol. XI, No. 3, page 319 (Feb. 1939); Indianola v. Woods, 118 Miss. 738; Fidelity & Guaranty Co. v. State, 121 Miss. 369; Hewlett v. George, 68 Miss. 703; Heirn v. M'Caughan, 32 Miss. 17; Bell v. Morrison, 27 Miss. 28; Continental Cas. Co. v. Garrett, 173 Miss. 675; I. C. R. Co. v. Hawkins, 114 Miss. 110; Stone v. Bank, 153 Miss. 892; Western Union Tel. Co. v. Watson, 82 Miss. 101; Singer Sewing Machine Co. v. Stockton, 171 Miss. 209; Interstate Co. v. Garnett, 154 Miss. 325; Planters Oil Mill v. Y. & M. V. R. Co., 154 Miss. 712.
The masters were liable for the acts of their cashier.
Singer Sewing Machine Co. v. Stockton, 171 Miss. 209; Primos v. Gulfport Laundry, 157 Miss. 770.
Flowers, Brown & Hester, F. W. Bradshaw, and Robert Burns, Jr., all of Jackson, for appellee.
The lower court concluded that the language complained of was not slanderous per se.
Farley v. Bufkin, 132 So. 86; Kroger Grocery & Baking Co. v. Yount, 66. F.2d 700.
The lower court was properly convinced that the language used in this case, when considered in connection with the facts and circumstances surrounding the transaction in question, could not reasonably be construed as charging plaintiff with theft and his action in sustaining the motion to exclude was unquestionably proper. The language used in this case falls far short of constituting a charge of larceny.
The language complained about was qualifiedly privileged because the communication was made in good faith by Arnold in the discharge of his duty. He had no personal interest in the matter. He did not know appellee and to his knowledge had never seen her before the occasion in question. There was an absence of malice on the part of Arnold and the inquiry was reasonable and the language temperate.
Scott-Burr Stores Corp. v. Edgar, 177 So. 766.
The privilege was not exceeded and no malice was shown.
Kroger Grocery & Baking Co. v. Yount, 66 F.2d 700; Scott-Burr Stores Corp. v. Edgar, 177 So. 766.
It would be contrary to all rules of human nature and human experience in business dealings to conclude that Arnold, a young employee of good reputation, with a family to support, could have entertained a grudge, hatred, or ill will against appellee, a lady of mature years, whom he had never seen before. His natural impulse was to act faithfully in behalf of his employers and fairly toward appellant in order to maintain good will for the store and continue his employment which was so essential for his own well being and that of his loved ones.
Scott-Burr Stores Corp. v. Edgar, 177 So. 766; Mo. Pac. Trans. Co. v. Beard, 176 So. 156.
The case is not different from Scott-Burr Stores Corp. v. Edgar, supra, except the facts there involved were much stronger as tending to show slander than in this case.
There was no infringement of a legal right so as to make appellees liable under the 3rd count of the declaration.
We deny that there is any liability on the partner defendants or their agent in this case, but we also say that there is no liability on the partner defendants even though the agent should be held liable.
Appellee company, a partnership, operates a chain of grocery stores known as Jitney Jungle Stores. One of these, a large establishment, is located at 419 East Capital Street in Jackson. In this store, and in the others of the chain, the customers serve themselves. They gain entrance to the enclosure within which the goods are kept by way of an entrance turnstile, and the customer makes his own selection from the goods on open display and within easy reach. When the customer has selected the goods desired, he takes the articles to an exit, at which point a cashier is stationed. Here the goods are checked and are wrapped or put in bags and are then paid for, whereupon the customer passes to the outside with the goods in his possession.
This record does not show whether there is an employe stationed at the entrance turnstile to see that no freshly purchased goods--and which might have been purchased at some other store--are carried into the enclosure by a customer, nor does it appear that there was a conspicuous sign so displayed as to warn customers not to take into the entrance, goods purchased elsewhere. Nor is there anything in the record to show that at the cashier's exit, when paying for goods selected, any receipt in any form is given...
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