Wrought Iron Range Co. v. Boltz

• Decision Date: 15 November 1920
• Docket Number: 21278
• Citation: 123 Miss. 550,86 So. 354
• Court: Mississippi Supreme Court
• Parties: WROUGHT IRON RANGE CO. et al v. BOLTZ

86 So. 354

123 Miss. 550

WROUGHT IRON RANGE CO. et al v. BOLTZ

No. 21278

Supreme Court of Mississippi

November 15, 1920

October 1920

.

1. LIBEL AND SLANDER. Whether language imputing dishonesty or want of credit is actionable depends on circumstances.

As to whether language which imputes dishonesty or lack of credit to an individual is actionable per se, no definite rule will govern in all cases, but the language used and the particular facts and circumstances of each case must control.

2. LIBEL AND SLANDER. When words "no good" are libelous per se stated.

When the words "no good" are used in such manner and connection as to denote that an individual is engaged in making accounts which he does not intend to pay, and is dishonest, lacking in integrity, and wholly unworthy of credit, this naturally and necessarily tends to injure his standing and good name in the community, and lower him in the confidence and respect of his eighbors, and when so used they are libelous per se.

3. LIBEL AND SLANDER. Communication of libelous statement to wife of plaintiff held not a publication.

Communication to the wife of language defamatory of the husband's credit is not a publication when the language is used of and concerning credit growing out of a contract to which the wife is a party, and under which she is jointly liable with the husband.

4. LIBEL AND SLANDER. Communication of libelous statement to plaintiffs agent held not a publication.

When an individual contracts to purchase personal property, and delegates another to act in his place and stead in receiving and dealing with such property, communication to this agent of language defamatory of the principal's credit is not a publication, when such language is used in explanation of a demand for a cash payment before delivery of the property.

D M GRAHAM, Judge.

APPEAL from circuit court of Stone county, D. M. GRAHAM, Judge.

Action by G. J. Boltz against the Wrought Iron Range Company and another. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

Case reversed.

Mize & Mize and W. Batson, for appellant.

We will consider the first two assignments of error together, one being that the court erred in not giving a peremptory instruction in favor of the Wrought Iron Range Company and the other that the court erred in not giving a peremptory instruction in favor of Clark Young, which instructions were requested separately.

These peremptory instructions should have been given for the following reasons: first, the words, "no good" are not libelous per se; second, there is no publication of them; third, there is no malice shown and no damage proven.

This case falls squarely in the doctrine announced in the case of Ely v. Railroad, 83 Miss. 519, where the court held the following words: "cause for leaving service, unsatisfactory service; conduct good," not libelous per se, and that the one suing on same had the burden of proving not only that the words were untrue but were published from malicious and false motives.

In the case here absolutely no malice was shown whatever, no damage whatever is shown; that Young, when he made the statement to Faulk, was actuated by the best of motives; that he merely inquired of Faulk whether he thought Boltz could pay half down on the stove; that he had a report on him "no good" and had orders not to deliver the stove except on payment of half down. The record shows that, at the time he told Mrs. Boltz half would have to be paid down, he was very much embarrassed and stood around not seeming to know how to approach the subject.

There was no publication. Faulk was the agent of Boltz, because Boltz had engaged him to help put the stove up, so when Young was talking to Faulk, inquiring about Boltz's financial condition, he was talking to Boltz's agent; hence there was no publication to him. Then, when he told Mrs. Boltz the reason why he could not put it up he was talking to a party who had signed the note for the purchase price, because Mrs. Boltz signed the note with Boltz, or Boltz signed for her, so there was no publication to her; he was merely giving Mrs. Boltz his reasons and instructions that he could not deliver the stove unless half was paid. No evidence whatever is in the record of any malice, and no damage whatever is shown. The only injury shown is that Boltz got mighty mad over it and proceeded to employ a lawyer at once.

We submit that these peremptory instructions should have been given.

The next error assigned is that the court erred in giving the following instructions for the plaintiff: "The court instructs the jury for the plaintiff that in this suit malice does not necessarily mean or imply personal ill will against a person, but merely the wilful doing of an unlawful act resulting in injury to another."

This is erroneous, because there is no evidence on which to base malice, and no evidence of any wilful or unlawful act being done from which the jury may infer malice; as the conduct of Young on the occasion complained of was only a business inquiry to the agent of the plaintiff.

The next assignment of error is that the court erred in granting the following instruction for the plaintiff: "The court instructs the jury for the plaintiff that in an action for libel the law implies damage for the speaking of the libelous words, and also that the defendant intended the injury the libel is calculated to effect. And in this cause, if the jury believe from the evidence, and under the instructions of the court, that the defendant wantonly and maliciously, as charged in the declaration, published the words set out in the declaration, or substantially the same words, then they are to determine, from all the facts and circumstances proved, what damages ought to be given; and the jury are not confined to the mere pecuniary loss or injury sustained. Injury to reputation or character, if proved are proper elements of damages."

This instruction is erroneous in this: it tells the jury that, in an action for libel, the law implies damages from the speaking of the libelous words and also that the defendant intended the injury the libel is calculated to effect.

This part of the instruction would be correct if there were evidence in the record sufficient on which to base the law this part of the instruction is intended to set out; but words like these, not libelous per se, would have to be submitted to the jury to say whether they are libelous or not; and nowhere does this instruction submit to the jury whether or not said words are libelous.

The instruction then goes on to say: "and in this cause, if the jury believe from the evidence, and under the instructions of the court, that the defendant wantonly and maliciously, as charged in the declaration, published the words set out in the declaration, then they are to determine, from all the facts and circumstances proved, what damages ought to be given etc." This part of the instruction is erroneous because there is no evidence in the record that the defendant wantonly and maliciously published the words complained of.

The giving of the following instruction for plaintiff is next assigned as error: "The court instructs the jury for the plaintiff, that it is not necessary in all cases to prove malice by extrinsic evidence. Malice may be inferred from the falsity of the words in question and may also be inferred from the surrounding circumstances or from the absence of probable cause for making the assertion in question."

There is no evidence whatever in the record from which the jury would be authorized to infer malice, either from the words in question or from the conduct of the defendant in uttering them; so this instruction is fatally erroneous, for the reason that there is no evidence on which to base it.

Clark Young cannot be held as agent of the Wrought Iron Range Company for the acts of its agent that wrote the said words on the order blank because it is not shown that he had anything whatever to do with the writing of said words; and in order, to get Clark Young for punitive damages, the jury would have to believe that his conduct, in the conversation with Faulk or Mrs. Boltz was marked with wantoness or maliciousness, and we submit that the record is wholly barren of any evidence showing wilful, wanton or malicious conduct on his part. He simply made a business inquiry about the ability of Boltz to pay for the stove which he had been instructed not to deliver...