Furr v. Speed

Stockdale, J., delivered the opinion of the court. This is an action of slander brought by appellant (plaintiff in the court below) against appellee (defendant in the court below) to recover damages for injury to character by the speaking and publishing, as is alleged, of slanderous words by appellee of and concerning appellant. The complaint charges that appellee said of appellant, “ Mrs. Furr poisoned me,” to which the defendant pleaded “Not guilty.” On the trial, plaintiff testified that appellee took dinner at her house on one occasion, and she passed him a cup of coffee, and her husband helped his plate. Mr. Speed soon rose from the table, threw the food out of his mouth, said he was sick, and after awhile left the house and premises. Some time after that she heard that he had told in the neighborhood that she had poisoned him. She went to his house, and asked him what grounds he had for believing that. He said he felt like he was poisoned. She asked him what grounds he had to believe that she had — 429 — poisoned him. He replied: “lam sorry to say it, but if I had taken another sip of that coffee I would have died on the spot;” and that she had poisoned him. This conversation was wholly addressed to Mrs. Furr, but in the presence of two witnesses that were with her, according to the testimony of plaintiff, and they corroborate her. Albert D. Moore testified that in 1892 Mr. Speed (appellee) told him that he (Speed) had just come from Mr. Furr’s, and he believed that he was poisoned, and that he got the poison in the coffee which was given him for dinner at Furr’s. Defendant testified in his own behalf that on the occasion referred to he took dinner at Mr. Furr’s, and Mrs. Furr passed to him a cup of coffee. He took a sip or two of it, and it made him violently sick. After leaving there, he told a number of persons that he believed he had been poisoned, and that he believed the poison was in the coffee, and Mrs. Furr (the plaintiff) gave him the coffee; that he had never said to anybody that Mrs. Furr poisoned him, nor that he believed she had poisoned him; never charged Mrs. Furr with poisoning him. The most he ever said was that the coffee made him sick, and he believed it had poison in it. He denied the conversation at his house with Mrs. Furr as related by her and the other two witnesses. He made no declarations that Mrs. Furr had poisoned him, nor admissions that he had ever so stated. This testimony having been submitted to the jury, they found a verdict for defendant. The plaintiff moved for a new trial, and the motion was denied, after being considered bjr the judge under advisement. The plaintiff asked a peremptory instruction, which was refused by the court, and plaintiff excepted. We think this instruction was properly refused. There was conflicting testimony in the case sufficient to preclude a peremptory charge. Plaintiff then asked a number of charges, which were given, No. 2 of 'which is in the following words, to wit: “ If the jury believe from the evidence that Speed said to Mrs. Furr, in the presence of other persons, that Mrs. Furr had poisoned him, — 430 — or that he believed she had poisoned him, then they will find for plaintiff. ’ ’ The fifth instruction given at the instance of plaintiff charges that ‘£ if they believe from the evidence that the defendant said of and concerning the plaintiff that Mrs. Furr poisoned him, or words to that effect, they must find a verdict for plaintiff.” It is not necessary to pass upon the legality of the modification by the court of instruction No. 3, asked by plaintiff. It was manifestly erroneous as asked. The court was asked to charge the jury that it was unnecessary for plaintiff to show affirmatively that she had really suffered damages, but without such proof she is entitled to recover such damages, etc., without stating that ££if they believe the slanderous words were spoken; ” nor do the subsequent words cure the defect. They only furnish the jury the means of measuring the amount of damages after the right to recover had been announced. The fourth instruction given at the instance of plaintiff seems to have been drawn rather broadly. While it is true, as stated, that it is not necessary to plaintiff’s recovery that she should prove every averment of the declaration, it is giving too much latitude to say, £ ‘ If she has proved her case substantially. ” This court said, in Fritz v. Williams, 16 South., 359, by Justice Whitfield, after an extended review of cases on the subject: “The rule in Jones v. Edwards, 57 Miss., 28, is the better one, meaning what Mr. Odger says, and what it plainly shows upon its face it means, that £ synonymous words,’ conveying the same specific idea — the same identical thought — will do.” And that is-as far as this court has gone in relaxation of the old rule requiring the precise words charged to be proved in order to recover. The law is properly announced in charge No. 7 for plaintiff. These instructions, with others, given for plaintiff, brought the case to a single point for the jury to determine, to wit: Did the defendant speak the words charged in the declaration, or synonymous words conveying the same specific idea, the same identical thought ? If the words charged in the declara — 431 — tion, and others as testified to by the witnesses for plaintiff, were spoken and published, they are actionable. The defendant met the charge by a straight denial that such words were spoken, and, if that were correct, then there is no cause of action in this case. To enable the jury to arrive at a correct conclusion on that issue of fact (the court having charged the jury at the instance of plaintiff), the defendant presented instruction No. 2, in the record, which was given, charging the jury that no recovery could be had in this case unless the exact words alleged, or synonymous words, had been spoken by the defendant. Words of synonymous meaning, conveying the same specific idea, is, of course, what the court meant by the language of that instruction, and we do not think there was error in giving it. Nor do we find error in the granting of the fourth instruction asked by the defense. Plaintiff’s seventh instruction informs the jury that the law implies both intention to injure and damage from the speaking of slanderous words. Defendant’s instruction No. 2, informs the jury that if the words upon which the law so presumes damages and bad intention were not spoken at all, then these presumptions will not exist; and defendant’s fourth instruction is, for similar reasons, free from objections. Nor do we find error in the giving of the fifth charge for defendant, and, had the case been tried with the same result upon those instructions, above referred to in this case, the verdict would not now be disturbed. But, in addition, instructions Nos. 1 and 3, asked by defendant, were given to the jury, both of which are objectionable, and may have had weight in shaping their verdict. The authors on the subject of slander concur that no general rule can be laid down by which to determine what words or phrases will support an action for libel or slander; so much depends on the attending circumstances of each case. Starkie, in his work on slander (section 55), quotes from the opinion in the early case of Button v. Heyward, 8 Mod., 24, by Chief Justice Pratt. An action was brought against Mrs. Heyward for speaking the words: ‘‘I know the man that killed — 432 — my husband; it was George Button,” her first husband being dead. Those words were held to be actionable. The lord chief justice said: “We are to understand words in the same sense that the hearers understand them. We ought to expound words according to their general signification, to prevent scandals. It is the duty of the jury to construe plain words and clear allusions to matter of universal notoriety, according to their obvious meaning, and as evei’ybody who reads must understand them.” Lord Mansfield, in Rex v. Horne, Corp., 680; Hume v. Arrasmith, 4 Am. Dec., 626, “the use of such words and signs as do, in effect, injure the reputation of an individual, are within the mischief; the grievance is the loss of character. ” Starkie, Sland. & L., p. 60, sec. 60. Guided by the above announced doctrine, it has been held slander to say, ‘‘ I will call him in question for poisoning his aunt, and make no doubt to prove he has poisoned his aunt. ’ ’ And the words were held to be actionable. Townsh., Sland. & L., sec. 68. A general count in an action for slander — as, charging the plaintiff with stealing — is good. Nye v. Otis, 5 Am. Dec., 19. The books abound with instances where similar phrases and of similar character, published by writing or voice, were held to be actionable. Had the words alleged in the complaint in this cause, ‘ ‘ Mrs. Furr poisoned me,” and those testified to by the plaintiff’s witnesses, “1 am sorry to say it, but you did poison me, and, had I taken another sip of that coffee, 1 would have died on the spot, ’ ’ been among these enumerated cases, we do not see why they would not have been in proper company. Poisoning was and is a crime at common law and by statute — murder, if death ensues; attempt to murder, if death does not follow — and to charge either crime upon any person by any expression generally and commonly understood by the persons addressed, constitutes the wrong, and the words are actionable. See authorities cited above. To say a man swore falsely, or swore a lie, the words are not actionable; but if one say of another, “ He committed perjury, ’ ’ the words are actionable, because the words — 433 — “themselves, as generally understood, impute an infamous crime;” and it would be error to instruct the jury that they must believe, from the- evidence, that the. speaker intended to charge thereby, by name, all the ingredients that constitute perjury before recovery could be had. The word £ £ perjury ” is known to mean an infamous crime in common parlance, and, when charged by a name that conveys to the hearers the idea that one is guilty of that crime, the damage is done as effectually as though charged in the elaborate phraseology of an indictment. Judges and lawyers themselves use the descriptive terms “perjury,” '“murder,” ££arson,” etc., to designate those crimes, and on the docket of the court they are so used. In most of the states of the American Union, including Mississippi, as well as in England, the enlightened doctrine is maintained that people are entitled to protection against the slanderer in their good name as well as in their profession and business reputation and their property, and the humble as well as the great can invoke it. In view of the authorities cited, and numerous others which we have examined, it was error in the court below to charge the jury as asked by defendant in instructions Nos. l.and 3, wherein, by No. 1, the jury are charged: “That before any recovery can be had in this action, the evidence must satisfy the jury, not only that the defendant said that Mrs. Fun-poisoned him, or words of synonymous character, but it must be established, further, • that the words were so spoken by 'the defendant with intent, and that he meant thereby, to say and publish that Mrs. Furr intentionally poisoned him, and was guilty of an attempt to kill and murder him by poisoning him, and, unless such is established by a preponderance of the evidence, the'jury will find for the defendant.” Instruction No. 3 corroborates No. 1, and is erroneous. We do not concur in the expression of counsel for appellant to the effect that if the words spoken, or alleged to have been spoken and published by defendant, were actionable per se, a peremptory instruction ought to have been given for plaintiff. — 434 — The plaintiff and her witnesses testified to certain words spoken to her in presence of third persons, which words are actionable, if so spoken. The defendant, in his sworn testimony in the case, denied that such words were spoken at all, but another set of words, and those only, were spoken. That was the issue before the jury, raised by the plea of not guilty to the declaration. The jury had the right to believe the one or the other, and with that conflicting testimony in the cause the court could not give a peremptory instruction, but must allow the jury to find on the facts. The jury, by their verdict, indicated that they believed the case was not made out, but how much weight the two erroneous instructions had upon their minds in aiding them to arrive at that conclusion is not known, but it is fair to presume that those vigorous utterances may have materially influenced their judgments, and, much as we dislike to disturb a verdict where two trials have been had reaching the same result, we do not think a verdict should be allowed to stand, where vital principles of public policy are involved, until the record shows a perfectly fair trial with the law properly announced. We think that the motion for a new trial should have been granted for the reasons above stated. The judgment of the court loelow is reversed, a new t/rial granted, and the cause remanded.