Holliday v. Maryland Casualty Co.

Cook, P. J., delivered the opinion of the court. The appellant filed suit in the circuit court of Madison county, a demurrer to the declaration by the defendant; the demurrer was sustained; the plaintiff filed an amended declaration, and the demurrer to same was also sustained, and plaintiff appeals. It is unnecessary to set out in this opinion the first declaration. The amended declaration, omitting the formal parts, was as follows: “For that, whereas, the plaintiff, T. C. Holliday, be- • fore and at the time of the committing by the defendant of the several grievances hereinafter mentioned, was a — 66 — person- of good name and reputation, and deservedly enjoyed the esteem and good opinion of his neighbors and other worthy citizens in the city of Canton, in the county of Madison, and in the state of Mississippi, and of other worthy citizens and business acquaintances in other. parts of the state and outside of the state, yet the defendant, well knowing the premises,.but contriving and maliciously intending to injure the plaintiff and to bring him into public scandal and disgrace, on the 22d day of August, 1914, arid shortly subsequent thereto in a certain circular letter which the said defendant had printed and directed 'To Each Agent,’ as will be shown by a copy of said letter herewith filed, marked Exhibit A and made a part of this declaration, which circular letter, although not calling the name of plaintiff, did directly, specifically, and intentially refer to plaintiff in paragraph A therein, which said paragraph is as follows: “A. 'Living in a Southern state, a hard drinker, a habitual carrier of firearms, reputed to be twice a man-killer, minus one foot when insured, none of these facts, except the lost foot, given to us; represented by the agent as a good risk; recently shot off his other and makes claim accordingly. Our claim investigator discovered the above characteristics.’ “The defendant in writing did willfully and maliciously and wantonly, and with the malicious design to injure plaintiff in his reputation and to mortify and humiliate him in his business, circulating and publishing said circular letter with paragraph A therein, meant and intended by said paragraph A to refer to plaintiff, and had no other person in mind when it made said publication. And defendant did willfully and maliciously and with a wanton desire to humiliate, mortify, and bring plaintiff into disrepute and disgrace, charged by said circular and by said paragraph A above referred to that plaintiff (deliberately) shot off his said foot (for the purpose of collecting said insurance); and said defendant did, at the — 67 — time aforesaid, mail, circulate, and excessively publish, sáid circular letter containing the said false, scandalous, and malicious language, to his local agent and others, in many towns and cities in the state of Mississippi, and in other states. The recipients of many of these letters, and particularly the agents of the said, defendant company in Canton, and other places, who were personally acquainted with plaintiff, and who knew that plaintiff had sometimes in the past been in the habit of drinking to excess, and knew that plaintiff had some years before been involved in a personal difficulty, which caused plaintiff great uneasiness about his personal safety, and who, in order to protect himself, sometimes went armed, and who knew that plaintiff himself was finally compelled to kill his adversary in a personal encounter, the same being the culmination of the above difficulty, and for which no indictment was ever returned against plaintiff, and which said agents and other persons'who received said letter also knew plaintiff had lost one foot in said difficulty, and that plaintiff only had, when he obtained insurance from the defendants, one foot, and that plaintiff had recently lost that foot, and parties receiving said circular letter in other cities and towns in the state of Mississippi, of whom there were many, understood the said libelous matter to refer to this plaintiff. By means of the committing of the said several grievances by the defendant, and especially in charging* the plaintiff with willfully and designedly shooting off his remaining foot for the purpose of procuring the insurance thereon, the plaintiff has been and is g*reatly injured in his good name, credit, trade, and business, and has fallen into great discredit among his neighbors, friends, and acquaintances and of whom he was accustomed to enjoy their confidence, companionship, and respect, to his great humiliation, chagrin, and mortification, and to the actual damage of plaintiff in the sum of ten thousand dollars, and plaintiff claims by way of punishment to defendants for their — 68 — willful and wanton and libelous conduct punitive damages in the sum of ten thousand dollars, in all, actual and punitive damages, the sum of twenty thousand dollars.” The demurrer to this declaration was general and specific, raising the law points we will take up in this opinion. The opinion of the trial judge sustaining the demurrer •is in these words, viz.: “This is an action founded upon an alleg-ed libelous circular letter, sent out by the president of the defendant corporation, and addressed to each agent. This circular is an advisory letter, and upon its face is apparently intended to prevent the acceptance of risks, by agents, deemed undesirable by the management, and is qualifiedly privileged, if confined to, and sent out alone to defendant’s agents. The declaration, however, avers that the letter was mailed out to agents and others, and was received by them, and that its publication was excessive, and so exceeds the privilege. While no name is mentioned in the letter, it is fully charged that it was written of and concerning the plaintiff, with a malicious design to injure him. The only serious question presented is whether the letter is libelous per se. If it is there is no necessity to show special damage resulting from the publication. But if not, it must be shown to be knowingly false, published with malicious motive, and that special damage was sustained. “The declaration under consideration does not set out special damage, within the accepted meaning of that term. It therefore appears that whether the declaration is good against demurrers depends upon whether the words alleged to be libelous are so in themselves. The words claimed to be libelous, taken from the letter that is made an exhibit to the declaration, are: ‘A hard drinker, a habitual carrier' of firearms, reputed to be twice a man-killer; minus one foot when insured’ — and, standing alone, might of themselves be calculated to bring plaintiff into bad repute; but when — 69 — the letter is made a part of the declaration, the whole letter should be considered, as well as the fact that plaintiff’s name is not mentioned. Rodgers v. Kline, 56 Miss. 808, 31 Am. Rep. 389. The letter charges no one with a violation of any criminal law, is not abusive, charges no dishonesty or moral turpitude; and considering the letter alone, it bears no indication of malice, or that any one is intended to be held up to scorn or ridicule. In addition to this, the plaintiff, in his declaration, admits that he had in the past been in the habit of drinking to excess; that for his protection he sometimes went armed; that he had killed a man; and that he had but one foot. So that the admissions are almost as broad as the paragraph complained of as being false. “Considering the letter as a whole, and the admissions made by the plaintiff, and the absence of a showing of special damages in the declaration, I think the demurrer should be sustained.” It is clear that the circular letter is not libelous per se, and is only made so by the averments of the declaration. The circular says, that example B “recently shot off his other foot and makes claim accordingly.” This statement is not denied; it is not charged that it was false, but plaintiff says that the defendant willfully and designedly charged plaintiff with shooting off his remaining foot for the purpose of procuring the insurance thereon. This is an inference not warranted by the language of the circular. In fact, plaintiff admits that example B fits him exactly, and everything said is literally true, except he denies that he had killed two men, and asserts that'he had killed only one man. As we construe the declaration, the plaintiff admitted that he had killed one man, that he had been guilty of the excessive use of ardent spirits, and that he had (accidentally) shot off his remaining foot and made claim accordingly; that he lived in a Southern state. Nothing more appears in the circular. — 70 — It will be noted that the declaration does not specifically state that any particular person, other than defendant’s agents, ever saw or heard of the circular; it is not alleged, except in a general way, wherein and with whom he was injured in his business or reputation. The circular was a qualified privileged communication, not libelous per se, and to render same libelous the pleadings must specifically set out the facts which will be proven to establish the libelous character of the writing; mere generalizing is not sufficient. Before he could recover he had to prove wherein and with whom his business or reputation suffered, and, this being true, it is necessary that he plead it. Johnson v. Robertson, 8 Port. (Ala.) 486. In this case plaintiff could only recover special damages, and he cannot recover special damages without naming in his pleadings the persons who read the circular and with whom he suffered in his business or reputation. It is necessary to point out with reasonable precision his special damages. Linden v. Graham, 1 Duer (N. Y.) 672; Kendall v. Stone, 5 N. Y. 14. “In an action for slander or libel, no evidence of special damages can be given unless the same is alleged in the declaration.” Ency. Pleading & Practice, vol. 1, p. 771. As we construe the case made by the declaration, it appears that the alleged libelous publication was a privileged communication; that it was not libelous per se. The plaintiff did not allege special damages, and it therefore follows that the demurrer to the declaration was properly sustained. Affirmed and dismissed.