Yazoo & Mississippi Valley Railroad Company v. Rivers

• Decision Date: 22 June 1908
• Citation: 93 Miss. 557,46 So. 705
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. JOHN RIVERS
• Court: Mississippi Supreme Court

46 So. 705

93 Miss. 557

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. JOHN RIVERS

Supreme Court of Mississippi

June 22, 1908

October 1908

FROM the circuit court of Yazoo county, HON. J. B. HOLDEN, Special Judge.

Rivers appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. The action was for slander. The jury rendered a verdict for $ 10,000 in plaintiff's favor, but the same was by remittitur reduced to $ 5,000 to prevent the court below granting a new trial. The defendant appealed from the judgment of the circuit court for the latter sum to the supreme court.

This report is of the second decision made in this case; a former decision being reported, Rivers v. Yazoo, etc., R Co. 90 Miss. 196, 43 So. 471, 9 L. R. A. (N. S.) 931. The original declaration, filed June 1, 1906, consisted of two counts; the first charging slander by and through defendant's agent, one Sullivan, a time checker, and the second count charging slander by and through one Gilleas defendant's roadmaster. The amended declaration, filed October 30, 1906, charged in the first count a libel contained in a letter written by Sullivan to the assistant chief engineer, and the second count is based upon statements made by Sullivan in the presence of another that he had caught appellee stealing. The third count of the amended declaration was on a statement made by Gilleas in the defendant's office at Jackson, Miss., in the presence of C. A. Maynor and one Hudson, when Gilleas said, "The old -- is stealing, and I want him discharged;" the third count being afterwards amended on November 18th by adding "and that the oldest foreman on the road (meaning appellee) was caught stealing." The fourth count of the amended declaration was on a statement made by said Gilleas at McComb City, Miss., in the presence of John Maynor and another, to the effect that C. A. Maynor, supervisor, had caught two men stealing, and that one of them (meaning plaintiff) had been in the service of the company about twenty years, and that he was section foreman at Pocahontas. The court held the first count bad, and instructed the jury that no recovery could be had on the evidence under the second and fourth counts. The judgment was based, therefore, on the third count alone.

The appellant relied for reversal on the following alleged errors, to-wit: First, the statute of limitations, the contentions being that the amended declaration, in which the third count first appears, was not filed until more than one year after the slander is alleged to have been spoken; i.e., on June 7, 1905. The court held that, since the original declaration was filed Within one year after the cause of action arose, the amended declaration, although filed after the expiration of one year, was good, and that it was not barred by the statute of limitations of one year. Second, the admission of the deposition of John Maynor as to what was said in his presence in McComb City, since the recovery was had on the third count, based upon the conversation with C. A. Maynor at Jackson, Miss.; contending that John Maynor's deposition could only be admitted to show malice on the part of Gilleas, and, Third, the appellant predicated error of the admission of the deposition of G. B. Ham which was admitted by the court and remained with the jury overnight, but withdrawn the following day. Appellant also complained of the remarks of counsel as follows: "This railroad corporation has seen fit to employ these time checkers, like Sullivan, who are no more than spies on honest men, and if they did not report somebody, they would lose their positions."

Judgment reversed and cause remanded.

Mayes & Longstreet and Charles N. Burch, for appellant.

The court below was requested to instruct the jury that any right of Rivers to recover because of the matters set forth in the third count of the amended declaration, was barred by the one year statute of limitations, which the court refused to do. This was error. The court will observe that this amended declaration, including, of course, the third count, was filed October 30, 1906. The amendment to the third count was not filed until the 18th day of November, 1907.

The conversation which is alleged to have been slanderous is shown by the record to have taken place on the 7th day of June, 1905.

The original declaration having been filed on the 1st of June, 1906, was, therefore, filed within a year of the time when this conversation took place; but the amended declaration in which this third count occurs, not having been filed until the 30th of October, 1906, was not filed until more than sixteen months afterwards, and the amendment to the third count was not filed until more than two years after the conversation.

It is not necessary to amplify this presentation. The point is easily intelligible; and we submit that when the amended declaration was filed in October, 1906, the third count must be treated as a presentation of substantially a new demand and; it was barred by the one year statute of limitations.

More especially is this true when the second count of the original declaration expressly avers that the statement made by Gilleas was made in the month of August, 1905, and the third count of the amended declaration is upon a statement alleged to have been made by Gilleas in the month of June, 1905.

At the conclusion of the evidence, the defendant moved the court to exclude the deposition of John Maynor on the ground that it was incompetent and irrelevant. This motion was overruled, and the defendant excepted.

This action of the court was error, and that error was not cured by the fact that the court afterwards instructed the jury that the deposition of John Maynor could only be considered on the question as to whether it tended to show malice on the part of Gilleas at the time he made the statement complained of.

If this court will read the deposition of Mr. John Maynor, the court will see that it relates wholly to a conversation which took place, not at Jackson, but in the office at McComb City. This conversation in the McComb City office was, of course, entirely irrelevant to a charge of slander predicated of different conversations at a different time in Jackson; but over the objection of the defendant the court let it go to the jury to show malice.

If this court will read the deposition of John Maynor, it will see that it did not have the slightest tendency to show malice on the part of Mr. Gilleas in making the observations which he made in the Jackson office on the 7th day of June. The conversation at the McComb City office was on the fifteenth day of June.

The communication was in fact privileged. Apart from that question the deposition does not have the slightest tendency to show malice on the part of Gilleas.

Malice being an essential element, had to be shown by evidence; the jury could not assume it. If now the court will look through the testimony in this case, it will find that there is no evidence whatever of any malice on the part of Gilleas. The materiality of the error which we have criticised under the preceding head of the admission of the deposition of John Maynor, here becomes evident. The record shows manifestly that the point of malice was sought to be made out by the use made of John Maynor's deposition. It did not even tend to prove it. There is no...