Winton v. Patterson

• Decision Date: 12 November 1928
• Docket Number: 27218
• Court: Mississippi Supreme Court
• Parties: WINTON v. PATTERSON. [*]

119 So. 161

152 Miss. 158

WINTON v. PATTERSON. ^[*]

No. 27218

Supreme Court of Mississippi

November 12, 1928

Division A

Suggestion of Error Overruled Dec. 10, 1928.

APPEAL from circuit court of Grenada county., HON. JNO. F. ALLEN Judge.

Action by T. F. Patterson against D. K. Winton. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Reversed.

A. M. Carothers, for appellant.

The declaration alleges that the words charged to have been used by the appellant were actionable under section 1 of Hemingway's Code of 1927 (Sec. 10 of the Code of 1906).

We respectfully submit that the language charged to have been used by the appellant to the effect that he had a mortgage upon the Chevrolet car, or that there was a mortgage upon the Chevrolet car, does not come within the purview of the statute above quoted. There is nothing insulting about the language used, and it would not be calculated to lead to a breach of the peace. The purpose of the statute is given in Dixie Fire Ins. Co. v. Betty, 101 Miss. 880. See, also, Crawford v. Melton, 12 S. & M. 330.

We respectfully submit that the words alleged to have been spoken by the appellant are not slanderous per se or actionable per se. Woodville v. Pizatti, 119 Miss. 91; 17 R. C. L. 265; Heralds of Liberty v. Rankin, 130 Miss. 702.

The appellee in the court below alleged by innuendo in his declaration that he was charged with a crime. If the words are slanderous per se, no innuendo is necessary, and the fact that an innuendo is charged shows that the words are not slanderous per se. 36 C. J. 1151, note 97.

We not only submit that the words used are not slanderous per se, but even if they are, that the language used by the appellant, which is the basis of this suit, was a qualifiedly privileged communication, and that in order for the plaintiff to recover, he would have to show express malice on the part of the defendant, and this he certainly failed to do. Grantham v. Wilkes, 135, Miss. 784; 25 Cyc. 276; Newell on Slander & Libel (2 Ed.), 418; 17 R. C. L. 330; Sands v. Robinson, 12 S. &. M. 704; 51 Am. Dec. 132; Abraham v. Baldwin, 52 Fla. 156, 42 So. 592, 10 L. R. A. (N. S.) 1051; Phillips v. Bradshaw (Ala.), 52 So. 665; Brow v. Hathaway, 13 Allen (Mass.) 242; Hines v. Shumaker, 97 Miss. 686; A. & V. Ry. Co. v. Brooks, 69 Miss. 185; 17 R. C. L., secs. 88, 842; Moore Stave Co. v. Wells, 111 Miss. 796.

Creekmore & Creekmore, S. L. McLaurin and B. D. Newsom, also for appellant.

The words upon which this suit is bottomed are not within section 1 of Hemingway's Code of 1927, as they are neither insulting nor calculated to lead to a breach of the peace, and therefore peremptory instructions should have been granted defendant.

The provision in section 1 making it apparently mandatory that the question be submitted to a jury does not, we contend, confer upon the jury judicial power, but we say that this provision is merely declaratory of the common law. There can be no question for the jury except an issue of fact, for the court alone has the power to determine the legal sufficiency of the evidence. If the evidence never reaches the point of raising an issue of fact to be determined then there is no question for the jury and the jury should be instructed peremptorily. Natchez & Southern R. R. Co. v. Crawford, 99 Miss. 697, 55 So. 596. The case of Verner v. Verner, 64 Miss. 321, is authority for the proposition that a peremptory instruction should have been granted in the case at bar.

The case of Dedeaux v. King, 92 Miss. 38, 45 So. 466, was another where a demurrer was sustained to a declaration for slander brought under section 1 of the Code. The defendant was an election manager and challenged the right of the plaintiff to vote in the election, saying: "You cannot vote because you are a convict; I say you are a convict and convicts cannot vote here." The demurrer was sustained on three grounds which are as follows: A. Failure to charge malice. B. Failure to negative the truth of the words spoken. C. Failure to negative that defendant made the challenge in good faith. See, also, Chaffin v. Linch, 83 Va. 106, 1 S.E. 803; Greenleaf on Evidence, secs. 2, 49.

S. C. Mims, Jr., for appellee.

It was not only alleged in the declaration but unquestionably established by the proof that Mr. Winton knew that Mr. Patterson "traded in" the Chevrolet car to the Imperial Motor Company as being free from incumbrances and that the Company accepted the Chevrolet as being free at a valuation far in excess of twenty-five dollars.

Mr. Winton knew under these circumstances, and it was manifest to the jury from the record, that when he (Winton) stated to the officers of the Imperial Motor Company, in the presence of Mr. Henderson, who, although a third person and a stranger--in the sense that he had no connection with the company at the time of the conversation--knew the facts and circumstances under which the car was "traded in," that he (Winton) had a mortgage on the Chevrolet car, he was in effect charging Patterson with having disposed of or sold mortgaged property without informing the purchaser of the condition of the title. This was necessarily the reasonable impression his statement made upon the officers of the Imperial Motor Company and Mr. Henderson, as the subsequent events clearly show.

Defamatory words must be interpreted as they would be understood by the hearers, taking into consideration the surrounding circumstances which were known to the hearers. 25 Cyc. 357; Rogers v. Kline, 56 Miss. 816; Furr v. Speed, 74 Miss. 431. The verdict of the jury is conclusive. Davis v. Woods, 95 Miss. 437.

We feel that counsel is in error in relying upon the case of Crawford v. Melton, as authority in urging the mild-mannered tone of voice of his client as a justification in exculpating him from liability in the case at bar. The court in that case was passing upon the sufficiency of a special plea of justification interposed by the defendant, and of course construed the same strictly against the pleader. The manner, attitude and intent of the defendant in the use of the words relied upon in that case as constituting an insult was pertinent.

In the case at bar, the gravamen of the language used by the defendant is that under the circumstances it imputed to the plaintiff the commission of a crime, a felony. If the plaintiff had been present and drawing the natural inference from the statement that he would have been justified in drawing, there would doubtless have been a breach of the peace.

It is not necessary that the words be spoken to, or in the presence of the plaintiff. Warren v. Norman, Walker 387; Scott v. Peebles, 2 S. & M. 546. See, also, Bigner v. Hodges, 82 Miss. 217; Valley Dry Goods Co. v. Buford, 114 Miss. 414.

Cowles Horton, also for appellee.

This is an action under section 10, Code of 1906.

Appellee having traded his auto to Imperial Motor Company without the company's knowledge of any claim against it in favor of the appellant the charge made by appellant that he held a mortgage against the car brought the case within the statute for it charged appellee with the commission of an infamous felony. Lewis v. Black, 27 Miss. 431, 114 Miss. 414, 115 Miss. 564, 119 Miss. 85, 132 Miss. 39.

Under this statute enacted for the purpose of suppressing duelling and preventing breaches of the peace, it is for the jury to determine as a pure matter of fact whether the words are insulting, etc., and their decision is final under the express provisions of the statute itself. Davis v. Woods, 95 Miss. 437, 97 Miss, 689. See, also, Rogers v. Kline, 56 Miss. 816; Furr v. Speed, 74 Miss. 431; Warren v. Norman, Walk. 387; Scott v. Peebles, 2 S. & M. 546.

The question of privileged communication in a case of this character and of the appellant's good faith is a matter for the jury to determine and cannot be determined by the sole testimony of the appellant himself. Railway Co. v. Brooks, 69 Miss. 185.

Argued orally by H. H. Creekmore and Wade Creekmore, for appellant, and Cowles Horton, for appellee.

OPINION

MCGOWEN, J.

The appellee, Patterson, filed his declaration in the circuit court of Grenada county against Winton, the appellant, alleging that Winton spoke the following words to the Imperial Mercer Company and its officers and agents of the plaintiff, Patterson, saying that "he (defendant, D. K. Winton) held a mortgage on said Chevrolet motor car," and further stated that "he (defendant, D. K. Winton) had a right to either the car or the debt secured by said mortgage." The declaration alleged that the above statement was false, malicious, and untrue, and that the accusation was an insult calculated to lead to a breach of the peace. The declaration further alleged that said accusation of selling mortgaged property was an insult and calculated to breach the peace, and is actionable under section 1, Hemingway's 1927 Code; that the car was of greater value than twenty-five dollars; and that Winton, by the language above quoted, charged Patterson, the appellee, with a felony.

The declaration further charged that, as a result of the speaking of these words, he, the appellee, Patterson, was arrested in Louisiana and incarcerated in jail there, and then brought back to Mississippi as a criminal on the charge of selling mortgaged property, the charge being predicated upon the above statement; for all of which Patterson sued for ten thousand dollars damages.

The defendant, appellant here, pleaded the general issue, and also filed pleas to the effect that in January, 1927, the appellee, Patterson, sought to borrow five hundred dollars for the purpose of burying his parent, and that, for accommodation, he, defendant (Winton), made arrangements...