Doherty v. L. B. Price Mercantile Co.

Cook, J., delivered the opinion of the court. The plaintiff, B. O. Doherty, instituted a suit for slander against the L. B. Price Mercantile Company, a corporation. The plaintiff was employed by the defendant, corporation, and the declaration in this suit was founded on an alleged oral charge of embezzlement, made against him by the manager of defendant’s business in the city of Hattiesburg, Miss., and, from a verdict and judgment in favor of the defendant, this appeal was prosecuted. It appears from the testimony that the appellee had an office and place of business in the city of Hattiesburg, Miss., and that it was engaged in the sale of certain classes of goods; that H. K. Hohmeyer was in charge of this business as manager, and that the appellant was employed as a salesman; that it was the custom of appellee to deliver its goods to its salesmen to be sold and delivered in the territory surrounding the city of Hattiesburg, the compensation of the salesman being a commission on the amount of his sales; that the goods were sold for cash or on credit, and it was the duty of the salesman to collect for the goods sold, and to account to appellee for all unsold goods, all money collected, and all contracts for credit sales. It further appears that; after appellant had worked several [50] months under Hohmeyer as manager, considerable friction developed between them, the appellant claiming shortages in the commissions paid him, and Hohmeyer claiming that appellant had failed to account for all goods delivered to him and all money collected, and that the appellant and Hohmeyer had several conferences in an effort to reach a settlement. Appellee testified that at the last conference between them Hohmeyer demanded that he should pay over certain money and sign certain receipts to the company, and said: “If you don’t sign these receipts and give me the money, I will have you arrested and put in jail for embezzlement,’’ and that this language was used in the presence of two- people who were in appellee’s place of business at the time. Upon this language appellant’s cause of action is based. For a reversal of this cause, appellant relies upon alleged errors in several instructions. The first two assignments are based upon the action of the court, in granting the appellee an instruction which submitted to the jury, as a controverted fact to be determined from the evidence, the question of Avhether or not the alleged slanderous words were spoken by Hohmeyer, appellee’s agent, it being the contention of appellant that the use of the language complained of was admitted. While in one part of his testimony the Avitness, Hohmeyer, appeared to admit the use of the language charged, it is not clear from the whole testimony that the witness intended to or did admit it, but, in view of the fact that the case must be reversed on other grounds, we deem it unnecessary to pass upon that question, as this matter can be made clear and definite on another trial. Appellant next assigns as error instruction No. 3, granted the appellee, which reads as follows: “The court-instructs the jury that, even though you might believe from the evidence that the plaintiff was told by H. K. Hohmeyer that, unless he signed the receipts that he (Hohmeyer) would have him arrested and put in jail for embezzlement, yet the plaintiff cannot recover unless [51] he has proven damages sustained by such statement, and unless the plaintiff has proven damages by a preponderance of the testimony, it is the sworn duty of the jury to find for the defendant.” This instruction is erroneous and is in conflict with instructions granted the appellant. The language alleged to have been used, and embodied in this instruction, clearly imputes that appellant ivas guilty of the crime of embezzlement; consequently, it was actionable per se. The law presumes damage from the speaking of words which are slanderous per se, and it was error to instruct the jury that no damages could be allowed unless the plaintiff had proven damages by a preponderance of the testimony. Hubbard et al. v. Rutledge, 52 Miss. 581; Furr v. Sneed, 74 Miss. 423, 21 So. 562. Appellant next assigns as error instruction No. 6, which is as follows: “The court instructs the jury for the defendant that, unless you believe from the evidence in the case that the defendant had hired or employed the said H. K. Hohmeyer as its agent to quarrel, dispute, and fight with the plaintiff, B. O. Doherty, and to accuse him, the said B. O. Doherty, of embezzlement, or unless you believe from the evidence in the case that quarrelling, disputing, fighting, and accusing the said B. O. Doherty of embezzlement, if you believe from the evidence in the case that the said H. K. Hohmeyer did accuse the said B. O. Doherty of embezzlement, was within the scope of the labors and duties for which the defendant hired the said H. K. Hohmeyer, then, under the law, it is the duty of the jury to find for the defendant.” This instruction is manifestly erroneous. As said in the ease of Rivers v. Yazoo & M. R. Co., 90 Miss. 196, 43 So. 471, 9 L. R. A. (N. S.) 931, “the test is whether the slanderous words were spoken by the agent of the company while acting within the scope of his employment and in the actual performance of the duties of his principal touching the matter in cmestion.” and “in such case it is unneees [52] sary for a plaintiff to show that the slanderous words were spoken with defendant’s knowledge or with its approval, or that it ratified the act of the agent.” The same errors as herein pointed out also occur in instruction No. 7 granted the defendant. For the errors herein indicated, the judgment of the court below will be reversed, and the cause remanded. Reversed and remanded.