Yazoo & Mississippi Valley Railroad Co. v. Watson

• Decision Date: 21 April 1913
• Docket Number: 16,062
• Citation: 61 So. 657,104 Miss. 672
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. WATSON
• Court: Mississippi Supreme Court

61 So. 657

104 Miss. 672

YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. WATSON

No. 16,062

Supreme Court of Mississippi

April 21, 1913

APPEAL from the circuit court of Sunflower county, HON. MONROE MCCLURG, Judge.

Suit by J. S. Watson against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

This is an appeal from a judgment for the sum of seven hundred and fifty dollars in favor of plaintiff below in an action for libel, based upon a letter written by an agent of the defendant railroad company to a cotton merchant in the city of Memphis to whom plaintiff had shipped certain cotton. The shipment checked up one bale short, and plaintiff put in a claim for same. The defendant paid the claim, protesting all the while its liability, though admitting that the shipment was one bale short of the number called for in the bill of lading, and taking the position that the missing bale was shipped elsewhere by plaintiff. The letter alleged to be libelous is as follows:

"Memphis Tenn., April 12, 1909.

"J T. Fargason & Co., City--Gentlemen: Referring to conversation the writer had with Mr. Patterson in your office with reference to your claim filed Jan. 20th, covering loss of one bale of cotton marked J. S. 427, shipped by J. S. Watson Drew, Miss., Oct. 10, 1908, beg to advise that I have noted Mr. Watson's letter of March 15, 1909, in reply to letter from you, and in reply we have to say that it is true that our bill of lading No. 201 of Oct. 10th is issued for twenty-four bales of cotton; but this is accounted for by the fact that bale No. 527 was placed on this bill of lading in error, because there was only one bale No. 527, and it was shipped by these parties to Greenwood, Miss., and we have established delivery of this bale at Greenwood. Furthermore the shipper has acknowledged receiving payment for the bale. In addition to this, the original bill of lading has been changed, bale 654 having been erased and No. 527 placed thereon after the B/L was signed by our agent, and without our agent's consent. It seems to us from these facts that the shipper is in error in his contention; hence we ask that you take up with shipper getting a more detailed statement. Yours truly, [Signed] B. Herring, Agent. Williamson."

Affirmed.

Mayes & Mayes, for appellant.

The letter in question, as shown by plaintiff's own case, is within the qualified privilege class.

Furthermore, the notice given under the general issue was that the defendant would show that there was no malice in writing the letter in question. We submit that this notice complied with the terms of the statute as to giving notice under the general issue, and that under our liberal system of pleading this was sufficient to justify throughout any evidence negativing malice. That, in effect, it amounted either to a special plea, or effectual notice, the result of which would be the same.

As stated in our argument, Greenleaf and other authorities lay down the rule that, "the plea of the general issue requires plaintiff to prove. First, the special character and intrinsic facts when they are essential to the action. Second, the speaking of the word, or the publication of the libel. Third, the truth of the colloquim, or the application of the word to himself. Fourth, the defendant's malicious intention, where malice in fact is material. Fifth, the damage, where special damages are alleged, or more than nominal damages are expected." 2 Greenleaf, sec. 410; Jarnagan v. Fleming, 43 Miss. 725; 25 Cyc. 480, h. Privilege.

As stated in our oral argument, when plaintiff's own case shows that the communication, as in this case, is qualifiedly privileged, the burden is upon plaintiff, in the first instance, in making out his case, to show express malice. In 18 Am. & Eng. Ency. Law, 1003, par. 3, on evidence and Burden of Proof, the text is:

"Where, however, the circumstances of the publication are such as to repel the inference of malice, and exclude any liability of the defendant, except upon proof of actual malice, it is incumbent upon the plaintiff or the prosecution to furnish such proof."

In Jarnagan v. Fleming, supra, the court says: "If the mitigating circumstances appear upon plaintiff's own showing, then he must prove malice in fact, or express malice. If they do not thus appear, the defendant may prove, under the plea of not guilty, any facts which repel the implication of malice, not proving, or tending to prove, the truth of the charge."

The Code of 1857, in force when this case was tried, is exactly the same as the law today, found in section 743, as to mitigating circumstances; and section 744, as to notice of special matter under the general issue.

In other words, this case distinctly showed that the burden resting upon plaintiff at common law, where he sues upon a communication qualifiedly privileged, is unaffected by our statutory provisons, insofar as his duty to show express malice goes.

Hence, we insist, as in the oral argument, that the defendant got the full benefit of the situation of qualified privilege, although there may not have been any special plea of privilege, or notice under the general issue that the communication would be shown to be privileged.

An analogous case, if one be needed, is found in suits for personal injuries inflicted upon plaintiff by defendant. If the evidence of plaintiff himself shows that he is guilty of contributory negligence, the defendant is entitled to a peremptory instruction, as much as if the showing of such negligence was made by defendant.

Reduced to its last analysis, the rule simply means that the plaintiff must make out his case. And this he did not do, if his own evidence, as in the instant case, shows that the communication was...