
    National Life & Accident Ins. Co. v. DeVance.
    [70 South. 83.]
    1. Trial. Peremptory instruction. Bight to. Libel and slander. Actions. Evidence.
    
    Where the evidence is conflicting a peremptory instruction should not he given.
    2. Trial. Instruction. Error.
    
    Where in an action for slander, plaintiff’s declaration contained two counts and in the first count it was charged that the slanderous words were spoken by defendant’s soliciting agent and ■ "in the second count the slanderous words are charged to have been spoken by defendant’s superintendent, and the first count not being supported by the evidence, the court instructed the jury to find for the defendant on that count, it was error for the court to then instruct the jury that if they believed from the evidence that both said agents or either of them while acting within the scope of their authority and while about their master’s business, spoke of and to the plaintiff the slanderous words alleged in the declaration, then they should fi,nd for the plaintiff and assess his damages etc.
    3. Libel and Slander. Actions. Evidence
    
    In an action against an insurance company for slander uttered by its agents after the beneficiary in one of its policies had recovered judgment on the policy, evidence that recovery had been contested on the ground that the policy was obtained by fraudulent representations, was admissible in mitigation of damages.
    
      Appeal from the circuit Court of Warren county.
    Hon. H. C. Mounger,, Judge.
    Suit by Henry De Vance against tbe National Life & Accident Insurance Company. From a judgment for plaintiff, defendant appeals.
    Tbe facts are fully stated in tbe opinion of tbe court.
    
      N. Vick Bobbins & Wells and May & Sanders, for ap■pellant.
    Tbe court will observe that tbe second count of tbe declaration proceeds solely upon tbe right to recover 'damages on account of tbe alleged slanderous and defamatory woids used-toward plaintiff by G. E. Liles as agent of defendant. At the close of tbe testimony, tbe court granted defendant’s instruction No. 1 to find for tbe defendant on tbe first count of tbe declaration.
    This action of tbe court was manifestly intended to and -should have eliminated from tbe • consideration of tbe jury, all of tbe evidence and all right of plaintiff to recover damages on account of tbe alleged slanderous words used by E. P. Mullen as set out in tbe declaration.
    Tbe court also granted defendant’s instruction No. 6 (Record page 25) to tbe effect that tbe jury could not and should not base any verdict upon tbe words alleged to have been spoken by E. P. Mullen at plaintiff’s bouse.
    These two instructions given in behalf of tbe defendant excluded any and all right of recovery on account of any words which may have been spoken of tbe plaintiff by "E. P. Mullen, at any time.
    In tbe second count of tbe declaration, there is no claim whatever on account of any words used at any time by E. P. Mullen, and tbe court having instructed tbe jury to find for the defendant on tbe first count in tbe declaration, there remained nothing upon which tbe jury could lawfully render a verdict, except tbe alleged slanderous words used by G. E. Liles as set forth in tbe second count of tbe declaration.
    And yet tbe court below, after having instructed the jury to find for tbe defendant in tbe first count of tbe declarhtion, and iri total disregard of the fact that the second count of the declaration upon which alone a verdict could then be rendered, contained no allegation of any kind complaining of any words spoken by E. P. Mullen, proceeded to instruct the jury in plaintiff’s instruction No. 2, that if they believed from the evidence, “that the-defendant by its ag*ent, E. P. Mullen and G-. E. Liles, or either of them,” spoke the slanderous words, alleged in the declaration, they should find for plaintiff. This instruction (No. 2) for plaintiff, is in hopeless and irreconcilable conflict with defendant’s instructions Nos. 1 and 6, and left the jury no intelligent rule to follow.
    After the jury had been instructed to find for the defendant on the first count of the declaration, all defamatory words spoken by E. P. Mullen, were eliminated from the case and nothing remained of the declaration except the second count thereof, and in this count no complaint whatever is made on account of any words which may have been spoken by any other person than Gr. E. Liles.
    "When they were. instructed in instruction No. 2 for plaintiff, that they were authorized to find a verdict for plaintiff on words which may have been spoken by E. P. Mullen, they were necessarily referred back to the first-count in the declaration, since nowhere else in the declaration does E. P. Mullen’s name appear; and so it is that they were first instructed to find for the defendant on the first count in the declaration, and also instructed that they might find for the plaintiff on account of the-slanderous words complained of in that same court, and complained of nowhere else in the declaration.
    Not only so, hut in this same instruction for plaintiff (No. 2), the jury are not confined as they necessarily should have been, to the consideration of the slanderous words set forth in the second count of the declaration, but they are invited to the consideration of all slanderous words “alleged in the declaration,” and this embraced the entire declaration, including both the first and second counts.
    
      This instruction was not only in hopeless conflict with defendant’s instructions, hut it was confusing and misleading to the jury, and deprived the defendant of all benefit which it had a right to expect at the hands of the jury by the giving of defendant’s instructions Nos. 1 and 6.
    Under these two instructions for the defendant, even though the jury may have believed every word of the testimony of plaintiff’s witnesses as to words spoken by E. P. Mullen as set forth in the declaration, still it was their duty to render a verdict for the defendant as to these words because they are only complained of in the first count of the declaration. The authority given to the jury to find for the plaintiff on any .slanderous words used by E. P. Mullen or Gr. E. Liles, or either of them, as was given by plaintiff’s instruction No. 2, was misleading in the highest degree because no words used by E. P. Mullen are alleged in the second count of the declaration and on this second count alone were they in any event authorized to find for the plaintiff.
    Section 743 of the Mississippi Code of 1906', provides as follows: “In actions for libel or slander, assault and battery and false imprisonment, a defendant under the plea of not guilty, may give any evidence of mitigating* circumstances to reduce the damages, notwithstanding he may also have pleaded a justification.”
    The plaintiff in this suit on the trial in the circuit, court below, had been permitted to testify to the fact as to the pendency of this suit at law and as to the fact that he had obtained the insurance policy on the life of his son, and as to the fact that the defendant insurance company had refused to pay the policy after his son’s death, all having been done over the objection of the defendant herein, and the declaration, in the second count, charges that the slanderous words alleged to have been spoken of the plaintiff, were uttered immediately after the. trial of this cause in the court of the justice of the peace, and just a few minutes after the trial. In mitigation of the damages it was clearly competent for the defendant to prove the character of the suit between the parties and the plaintiff before the magistrate’s court, as also the result of said suit, as well as the attendant facts and circumstances. It was proper that these facts should go to the jury in order that they might know the precise facts and circumstances under which the slanderous words complained of were used and to know the extent of the provocation, if any, under which they were uttered, because the proof in .this case shows that these words •arose from a misunderstanding on account of testimony which had been given in that trial. The ruling of the ■court in excluding this testimony from the jury and in refusing to' permit the defendant to cross-examine the plaintiff in regard to the facts and attendant circumstances of that trial, was clearly in opposition to the statute above referred to which provides that the defendant under the general issue/may give any evidence in mitigating circumstances to reduce the damages, not withstanding he may also have pleaded justification.
    It was most important to the defendant, that the proof along this line should have gone to the jury in mitigation. It was proposed to show that the plaintiff had acted in bad faith towards the defendant with reference to the procuring of the insurance policy on the life of -his son and that said policy was procured by false and fraudulent representations and these facts, which proven, would properly have been considered by the jury in mitigation of damages; they would have gone very far to show the worthlessness of plaintiff’s character and to •show that he had been but little damnified by the'utterance of the language charged in the declaration as being slanderous. The proof was competent and should have gone to the jury and the error of the court below in refusing to allow the defendant in that court to make this proof, was fatal error and necessarily was prejudicial to the defendant in the highest degree. Lewis v. JBlack, 5 Cushman (Miss.) 434; Second Qreenleaf Evideuce, paragraph 421; Powers v. Pressgroves, 38 Miss. 227.
    
      A. A. Chaney, for appellee.
    The first count of ihe declaration charges that one E. P. Mullen went to the home of appellee and attempted by threats to prevent him from proceeding with justice court suit against his company; that the justice matter was later tried and Mullen, after that time, met DeVance again, and used the language attributed to him, to the appellee, in the presence of witnesses, on the streets of Vicksbnrg, and the second count charging that G. E. Liles, superintendent of the company, used the language attributed to him immediately after the trial of the justice court suit.
    Was .Mullen acting within the scope of his authority and in and about his master’s business when he went to the home of appellee, and when he used the words attributed to him by the witnesses in speaking of and to the appellee on the streets of .Vicksburg? This is one of the questions raised by appellant in its rejoiner brief. It .was the duty of agent Mullen to write insurance and collect premiums, according to his testimony. It is the duty of the superintendent, so he states, to make settlement of claims that come into the office. When Mullen went to the home of appellee he was accompanied by the superintendent, G. E. Liles. Hear the testimony of Mariah DeVance: “Who was with him (Mullen) ? ” “That gentleman there.” “Mr. Liles?” “Yes, sir.” - and then (bottom of page 56: “Did Mr. Mullen have anything to sajr that night?” “Mr. Mullen did the raring.” “Did Mr. Liles have anything to say?” “He said, ‘y°u will get some nice clothes out of this suit’- — both came in together,” meaning Mr. Mullen and Mr. Liles. The testimony of appellee is that two or three came out to his house in the nighttime in response to the justice court suit, and when he heard the cursing he went into a back room, and Mariah. DeVance, the wife of appellee, identified Q-. E. Liles, the superintendent, as being one who came out to the house with Mullen, and was there with him at the time he is alleged to have done the cursing and made the threats as to' what „would be done if he, .appellee, proceeded with the justice court suit against his company. We contend that even if Liles had not gone out to the home of appellee with Mullen, that Mullen, was clearly acting within the scope of his authority, —that he went there for no other purpose except to prevent, by threats and abuse, the appellee from proceeding with the case in the justice court, but certainly, it cannot be successfully contended that when he went there accompanied by his superior officer, the superintendent of the company, whose duty it was to make adjustment of claims, and who, at least, acquiesced in the actions of Mullen, he was not acting within the scope of his authority. The court will observe that the very first time that DeVance, the appellee, was attacked by agent Mullen, it was at his home, in the nighttime, that it related to the suit against his company, and that his superintendent was with him at the time, and that he acquiesced and took part in the abuse and vilification. “The other man said this — “You think you will get some money off the company to buy some fine clothes,” (meaning the other man who came out with Mullen). A few days after this occurrence at the home of appellee, Mullen met DeVance on the streets, near his home, and continued the same course started by him with his superintendent.
    Was G-. E. Liles acting within the scope of his authority when he used the language attributed to him by the witnesses at the home of appellee and at the justice court? This is another question raised in the rejoiner brief of appellant. It has already been shown that it was a part of his duty to make settlement of claims against his company, and it has been shown that a claim had been filed by the appellee; that he brought suit on this claim in the justice court; that after the suit'was filed Liles went to Ms home with Mullen at the time the ■trouble started; that this trouble continued till after the .suit was tried in the court oí Justice of the Peace, Kearney; that immediately after the trial, and inside of the steps leading to the court-room he, Liles, accused him oí bribing the court and swearing to falsehoods; that he went to the court representing the company.
    Another question raised m the rejoiner brief of appellant on page 19 of its brief, is that the appellant should have been permitted to have gone into the merits of the justice court proceedings, because, as it is argued, the appellant was placed in the false attitude of not paying a just claim. The record will disclose the fact that neither side of this controversy developed its side of the ■case in the justice court, except to show that suit had been filed and tried in the justice court as alleged in the -declaration, and to show that appellee was cursed and abused by the agents of appellant because he had filed the suit in the justice court, but it is not shown that we went into details of this justice suit. It is argued that the court erred in refusing to .permit the appellee to answer this question: “DeVance they refused to pay you that money because they said you made representations that were not true?” It is clearly shown that the justice court trial was not gone into by the appellee, but we contend that, regardless of the merits of this justice court matter, appellee certainly had the right to a trial without being abused and vilified by the appellant. The ■court will observe from the testimony of appellee that the appellant attempts to show cause for the mistreatment of appellee, by showing that the policy was procured by false representations. Can the appellant defend its actions, in mitigation of damages or for any other reason, in going to the home of appellee and of the treatment at the justice court by showing the policy was procured by fraudulent representations, and at the same time deny going to the home and deny the trouble at the justice court?
    
      We submit, without going into further details, that, the judgment of the court below should not be disturbed..
   Smith, C. J.,

delivered the opinion of the court.

This is an action for slander in which judgment was. rendered for the plaintiff. The declaration is in two counts,j in the first of which certain slanderous words are-alleged to have been spoken of the plaintiff by E. P. Mullen, one of appellant’s soliciting agents; and in the second count certain slanderous words are alleged to have been spoken of plaintiff by G-. E. Liles, the • superintendent of appellant’s business at Vicksburg. The first, count of the declaration was not supported by the evidence, and the jury were instructed by the court to find, for the defendant upon that count. Appellee sued appellant in the court of a justice of the peace to recover the-.-..mount of an insurance policy issued by appellant upon the life of his, appellee’s son. Liles was present at and participated in the trial of this case, which resulted in a judgment for appellee. Immediately after the rendition, of this judgment, and as Liles, appellee, and several, other parties were in the act of leaving the courtroom, he, Liles, according to the evidence introduced in behalf of appellee, said in the presence and in the hearing of appellee and several other persons that- “if he (meaningappellee) had not paid the justice of the peace to decide against us and lied in his testimony, he would never have obtained a judgment against us;” that the judgment rendered “was a damned outrageous perjured one.” This, was denied by Liles.

At appellee’s request the court below instructed the jury “that if they believe from, the evidence that the defendant, by its agents, E. P. Mullen and G-. E. Liles, or either of them,.while acting within the scope of their authority and while about their master’s business, spoke of' and to the plaintiff, the slanderous words alleged in the-declaration, and testified to by the witnesses of the plaintiff, then they will find for the plaintiff and assess his •damages,” etc.

The peremptory instruction requested by appellant was properly refused (Richberger v. Express Co., 73 Miss. 161, 18 So. 922, 31 L. R. A. 390, 55 Am. St. Rep. 522); but the jury should not have been instructed to find for appellee in event they believed from the evidence that' •slanderous words alleged in the declaration were spoken of him by E. P. Mullen, and the error in so doing was not cured by the instruction charging the jury to find for •appellant on the first count of the declaration.

In the brief of counsel for appellant it is said that the court below excluded testimony offered in behalf of appellant tending to show that it declined to pay the insur'•anee policy and defended the suit thereon, on the ground 'that it was obtained by fraudulent representations made to it by appellee. We do not think the record is in such shape as to present this ruling of the court for consideration, but in order that the whole matter may be disposed of on the next trial, we will say that the evidence should not have been excluded, it being admissible in mitigation ■of damages.

Reversed and remanded-  