Nabors v. Mathis , 115 Miss. 564 ( 1917 )

Cook, P. J.,

delivered the opinion of the court.

Appellant began this suit in the circuit court of Alcorn county, under section 10, Code 1906, “Actionable Words.” The evidence in support of the averments of the declaration was conflicting. Plaintiff proved by several witnesses that defendant said in the presence ■of witnesses that he could prove that plaintiff, while acting as a member of the legislature, had — “voted to kill our home Agricultural School at Kossuth, and voted -and did all he could to get a fifty thousand dollar appropriation for a negro school in the Delta. I can’t prove this, gentlemen, but it is my honest opinion, and the opinion of others, that he got eight thousand dollars or ten thousand dollars from some of them rich negroes in the Delta to give them that school.”

The witnesses did not agree as to the exact words ■ employed by defendant, but they were in substantial agreement that he used the words above quoted, of words of similar import, conveying the imputation that that plaintiff had been paid for his vote and influence. The evidence for defendant contradicted the evidence for plaintiff. In this state of the record, the court, at the request of defendant, instructed the jury as follows:

No. 3. “The court charges the jury for the defendant that the gravamen of the action in this case is the fact that the words were spoken by the defendant of the plaintiff in an insulting manner, calculated to lead to a breach ■of the peace; and although you may believe by a preponderance of the testimony that the words were spoken by ■defendant, yet unless you further believe by a preponderance of the testimony that they were spoken in an insulting manner, you cannot find for the plaintiff; and you will find for the defendant in this case.”

No. 5. “The court charges the jury for the defendant that, although you may believe that the defendant spoke the words alleged to have been spoken by him, or that he rspoke the words of similar meaning, unless you further believe that they were spoken in an insulting manner and in a manner calculated to lead to breach of the peace, you will find for the defendant;”

The jury returned the verdict for the defendant, and it is insisted that they were influenced to do so by the instructions just quoted. .

There can be no doubt that plaintiff was entitled to a werdict, if the jury believed that defendant used, the language imputed to him. The words were libelous per se. They conveyed a direct charge that plaintiff worked for and accepted a bribe; that he was a felon and should be in the penitentiary rather than in the legislature. There is no question of the insulting character of the language Mr. Mathis is said to have used, and we may say, with confidence, that the average adult male would “raise a rough-house” and manhandle the fellow who charged that he had perjured himself and accepted a bribe.

The instructions should not have been given, and we cannot say that they did not mislead the jury.

Reversed and remanded.