National Life & Accident Ins. v. DeVance , 110 Miss. 196 ( 1915 )

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-