MISSOURI PAC. TRANSP. CO. v. BEARD

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Docket Number

No. 32709.

Judges

Griffith, J., delivered the opinion of the court.

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Smart Summary

Factual and Procedural Background

During November and December 1933, four bus companies operated a union bus station in Natchez with appellee Beard as the agent in charge. On December 8, 1933, appellant's superintendent, F.K. Carkuff, wrote a letter to officers of the other bus companies reporting that an audit revealed a shortage of approximately $79.20 in Beard's accounts, recommending that Beard be replaced as the station agent. In September 1934, Beard filed a libel suit against appellant company based on this letter, and after trial, recovered a substantial judgment. The appellant company appealed the judgment.

Legal Issues Presented

Whether the December 8, 1933 letter constituted a libelous publication.
If libelous, whether the letter was libelous per se or libelous per quod and the relevance of this distinction given the letter's qualified privilege.
Whether the qualified privilege attached to the letter was overcome by proof of malice or bad faith.
Whether the evidence supported the award of punitive damages and special damages to appellee.
The admissibility of evidence regarding prior audits and related declarations.
Whether the trial court erred in excluding certain evidence and in reserving rulings on material matters during trial.

Arguments of the Parties

Appellant's Arguments

The letter on its face was not libelous or injurious, could not be libelous per se, and special damages were not properly alleged.
The communication was qualifiedly privileged, requiring appellee to allege and prove malice, which was not done.
The declaration contained only legal conclusions about malice unsupported by facts, and facts alleged affirmatively negated malice or bad faith.
The letter was made in good faith, without malice, for a legitimate purpose, and concerned a matter of mutual business interest.
No special damages were proven, and the defamatory part of the letter was not the proximate cause of any damages.
The trial court erred in refusing a directed verdict and in allowing punitive damages without proof of actual malice.
Evidence of prior audits and the Carkuff letters were improperly excluded, which was prejudicial error.
There was no conspiracy to discharge appellee as alleged by appellee's counsel.

Appellee's Arguments

The letter was libelous per se because it imputed embezzlement and dishonesty by charging appellee with being "short" in his accounts.
Written words charging breach of trust or dishonesty are libelous per se, and the jury is the judge of whether the words were defamatory.
The declaration sufficiently alleged special damages resulting from the wrongful publication, including damage to business, reputation, and livelihood.
The publication was not qualifiedly privileged, and the appellant failed to establish truth as an affirmative defense.
Malice and reckless disregard of appellee's rights were proven, justifying exemplary damages.
The jury was the proper factfinder on the defamatory meaning and damages, and the verdict was supported by the evidence.
The exclusion of the three Carkuff letters was proper as they were self-serving declarations and their admissibility was within the trial court's discretion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Louisiana Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705	Qualified privilege and burden of proving malice in libel cases	Established that the letter was qualifiedly privileged and that appellee bore the burden to prove malice or bad faith.
Kroger Grocery Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335	Definition of malice and good faith in libel actions	Clarified malice as ill will or reckless disregard and found no evidence of malice by appellant's superintendent.
Neely v. Payne, 126 Miss. 854, 89 So. 669	Libel action based on publication by agent and qualified privilege	Noted that the proper libel action would be against the auditor's publication, with the letter as a republication, both qualifiedly privileged.
Warren v. State, 174 Miss. 63, 164 So. 234	Disapproval of trial judge reserving rulings on material matters in jury trials	Court disapproved the trial judge's practice of reserving rulings, which occurred in this case.
Jackson Light Tr. Co. v. Taylor, 112 Miss. 60, 72 So. 856	Requirement of actual malice for punitive damages in libel cases	Held that punitive damages require proof of actual malice, which was lacking here.
McCormick Motor Car Co. v. U.S. Rubber Co., 163 Miss. 293, 141 So. 595	Admissibility of written declarations made ante litem motam	Cited regarding the exclusion of letters as written declarations and trial court discretion.
Others (e.g., Holliday v. Md. Cas. Co., Heralds of Liberty v. Rankin, Jones v. Rogers)	General principles of libel, qualified privilege, and pleading requirements	Supported appellant's position on pleading malice and special damages and the nature of qualified privilege.

Court's Reasoning and Analysis

The court analyzed the letter's content and context, finding it to be qualifiedly privileged because it was made in good faith on a subject matter of common business interest. The burden was on appellee to prove malice or bad faith, which the court found was not established. The superintendent, Carkuff, relied on an auditor's report that showed a shortage, and the auditor's competency and reliability were presumed due to his long service. Evidence of prior audits showing discrepancies supported the good faith of the communication.

The court rejected appellee's allegation of a conspiracy orchestrated by appellant's general office, finding no substantial evidence to support it. The court further held that the proper libel action, if any, would be against the auditor's publication rather than the superintendent's letter, which was merely a republication.

The court found no substantial facts to support punitive damages or special damages because the defamatory portion of the letter was not the proximate cause of the damages claimed. The trial court's refusal to admit full testimony on prior audits and the exclusion of certain letters were errors because such evidence bore on good faith and malice.

The court also disapproved the trial judge's practice of reserving rulings on material matters during jury trial, emphasizing that the jury's role is to decide factual issues and not legal issues. Joint audits were admissible evidence when auditors testified as experts. Ultimately, the court reversed and remanded the case for further proceedings consistent with these principles.

Holding and Implications

The judgment of the trial court is REVERSED AND REMANDED.

The court held that the letter was qualifiedly privileged and that appellee failed to prove malice or bad faith necessary to overcome that privilege. The evidence did not support punitive damages or special damages as awarded. The decision requires a new trial or further proceedings consistent with the court’s guidance. No new precedent was established beyond the application of well-settled principles regarding qualified privilege, malice, and the burden of proof in libel cases.

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MISSOURI PAC. TRANSP. CO. v. BEARD.

Ratcliff Ratcliff, of Natchez, and Hudson, Potts, Bernstein Snellings, of Monroe, La., for appellant.

The alleged defamatory publication sued on (the letter of December 8, 1933) shows upon its face that it is not libelous, or injurious at all, could not be libelous per se, and special damages were not alleged.

Newell, Slander and Libel (4 Ed.), sec. 1, page 1, sections 2 and 6, section 138, pages 170-171, and sec. 175, page 218; 17 R.C.L. 262, 263 and 315; 36 C.J. 1143-5, 1149-51, 1223; 1 Words and Phrases (4 Ed) 693; 2 Words and Phrases (4 Ed.), 564-5; 3 Words and Phrases (4 Ed.), 280.

By "special damages" are meant particular injuries proximately consequent upon the alleged libel, but not necessarily or ordinarily flowing therefrom unless because of stated circumstances — the nature and extent of which must be alleged and established by proof — as distinguished from `general damages' — which because naturally and necessarily ensuing the law presumes and allows recovered without allegation or definition.

17 R.C.L. 264 and 431; 37 C.J. 35-36; Newell, Slander Libel, (4 Ed.), sec. 735, page 824, and sec. 737, pages 826-7.

The law of Mississippi so closely follows the general jurisprudence and is so clearly stated that we will not stray into other jurisdictions.

Holliday v. Md. Cas. Co., 115 Miss. 56, 75 So. 764; Heralds of Liberty v. Rankin, 130 Miss. 698, 94 So. 849; Lucas E. Moore Stave Co. v. Wells, 111 Miss. 796, 72 So. 228.

Where the letter alleged to be libelous is itself alleged in full, counsel's allegation as to what it "falsely, frauduently, etc., charges" is merely a legal conclusion of the pleader.

49 C.J. 43-46, 57, 87; Jones v. Rogers, 85 Miss. 802, 38 So. 742; Mitchell v. So. Ry., 77 Miss. 917, 27 So. 834; 21 R.C.L. 440.

This declaration itself discloses upon its face that the alleged defamatory communication and the occasion for the alleged libelous publication were qualifiedly privileged, which required appellee to declare ultimate facts and circumstances sufficient to support and substantiate his general averment of malice and bad faith, and without which the unsupported and unsubstantiated general averment in this declaration was insufficient because the mere conclusion of the pleader, which should be disregarded upon consideration of the appellant's demurrer.

Hines v. Shumaker, 97 Miss. 669, 52 So. 705; Jarnigan v. Fleming, 43 Miss. 710, 5 Am. R. 514; Dedeaux v. King, 92 Miss. 38, 45 So. 466; McAdory v. Turner, 50 Miss. 666; A. V. Ry. v. Brooks, 69 Miss. 168, 13 So. 848; Grantham v. Wilkes, 135 Miss. 777, 100 So. 673; Louisiana Oil Corp. v. Renno, 157 So. 705, 173 Miss. 609.

The burden of proof thus being upon appellee to establish malice, he must allege facts sufficient to justify and support it. This declaration not only completely fails to even attempt to do that, it alleges facts which themselves affirmatively negate malice or bad faith, wrongful motive, etc.

The only allegations in this entire declaration suggesting or even inferring malice are the obviously overstated, exaggerated, irresponsible and patently unjustified conclusions of the pleader that the simple, normal, natural, prudent and proper facts alleged constituted such false, unlawful, wilful, malicious, wicked, fraudulent, tortious defamation and libel — a conclusion supported by nothing and refuted by the communication itself as well as by the other material facts alleged.

That such allegations are mere legal conclusions of the pleader, and are not admitted by but must be disregarded upon demurrer is settled law.

49 C.J. 43, 46, 60; 21 R.C.L. 440, 508; Knowles v. N.Y., 176 N.Y. 430, 68 N.E. 860; Davidson v. Buchanan, 164 App. Div. 352, 149 N.Y.S. 640; Jones v. Pickard, 101 Misc. R. 117, 166 N.Y.S. 721; Langdon v. Kennedy, 224 N.W. 292; Noonan v. Luther, 41 L.R.A. (N.S.) 761; Jarrell v. Young, 66 A. 50; Askin Marine Co. v. Logan, 24 Ala. App. 13, 222 Ala. 52, 130 So. 768; Carns v. Bassick, 187 App. Div. 280, 175 N.Y.S. 670; Nauss v. Nauss Bros., 195 App. Div. 318, 187 N.Y.S. 158; Lavelle v. Julesburg, 40 Colo. 290, 112 P. 674; Continental Jewelry Co. v. Pugh Bros., 168 Ala. 295, 53 So. 324; Weinstein v. Mutual Ins. Co., 116 Conn. 654, 166 A. 63; Jones v. Rogers, 85 Miss. 802, 38 So. 742; State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152; Metcalfe v. Merchants Bank, 89 Miss. 649, 41 So. 377; Booze v. Cresswell, 117 Miss. 795, 78 So. 770; Stirling v. Lague, 154 Miss. 812, 123 So. 825; McLemore v. McLemore, 173 Miss. 765, 163 So. 500; Nortz v. U.S., 79 L.Ed. 442, 55 S.Ct. 428.

We, therefore, respectfully submit that the demurrer, timely and properly filed by the appellant, was well founded and should have been sustained, not only because this declaration shows an occasion of qualified privilege without sufficiently alleging malice, but because it fails to allege special damages in connection with an alleged defamatory publication which it shows to be not libelous per se.

If for any reason this declaration were not demurrable, in limine, the proofs affirmatively showed that the alleged defamatory communication, if actionable at all, was not actionable per se; that it was made in good faith; without malice; for an honest, lawful and legitimate purpose and from no direct or indirect, wrongful motive; concerned a matter and was communicated only to persons having a common and mutual business interest and duty; was predicated upon an honest and justifiable belief in its truthfulness; and that no special damages were caused thereby or consequent thereon. Therefore, the trial court erred in refusing appellant's motion for a directed verdict which was properly and timely filed, argued and submitted and reserved for review here.

Columbus G.R. Co. v. Cobbs, 156 Miss. 604, 126 So. 402; Clark v. Moyse Bros., 48 So. 721; Am. Tr. Co. v. Ingram-Day Lbr. Co., 110 Miss. 31, 69 So. 707; Payne v. Stevens, 125 Miss. 582, 88 So. 165, 257 U.S. 642, 260 U.S. 705; Watkins v. Port Gibson, 113 Miss. 38, 73 So. 867; G. S.J.R. Co. v. Prine, 118 Miss. 90, 79 So. 62; I.C.R.R. v. Fowler, 123 Miss. 826, 86 So. 460; M. O.R.R. Co. v. Cox, 153 Miss. 597, 121 So. 292; Boggs v. Jewett, 127 Miss. 308, 90 So. 13; N.O. N.E.R.R. v. Penton, 135 Miss. 571, 100 So. 521, 266 U.S. 605; Miller-Allaire Co. v. Hutcherson, 147 Miss. 453, 112 So. 589; Yates-Houston v. Murray, 141 Miss. 881, 106 So. 110; N.O. N.E.R.R. v. Jackson, 140 Miss. 375, 105 So. 770; N.O. N.E.R.R. v. Martin, 140 Miss. 410, 105 So. 864; I.C.R.R. v. Humphries, 170 Miss. 840, 155 So. 421; Columbian, etc., Co. v. Gunn, 173 Miss. 897, 163 So. 454; L. N.R.R. v. Jones, 134 Miss. 53, 98 So. 230; Smokey v. Johnson, 4 So. 788; Miss. Ice Utilities Co. v. Pearce, 161 Miss. 252, 134 So. 164; I.C.R.R. v. Schultz, 87 Miss. 321, 39 So. 1005; Gulf Ref. Co. v. Miller, 153 Miss. 741, 121 So. 482; Bankston v. McKnight, 139 Miss. 116, 103 So. 807; Masonite Corp. v. Dennis, 168 So. 613; Slacker v. Slade, 148 Miss. 575, 114 So. 396; Gunter v. Y. M.V.R.R., 145 Miss. 475, 111 So. 105; N.O. N.E.R.R. v. Ward, 132 Miss. 462, 96 So. 401; Mardis v. Y. M.V.R.R., 115 Miss. 734, 76 So. 640; St. L. S.F.R.R. v. Bowles, 107 Miss. 97, 64 So. 968; A. V.R.R. v. Dear, 87 Miss. 339, 39 So. 812; M. O.R.R. v. Bennett, 127 Miss. 413, 90 So. 113; Goodwin v. Mitchell, 38 So. 657; Burns v. A. V.R.R. Co., 93 Miss. 816, 47 So. 640; Miller v. Ivey, 35 So. 417; Cozeneune v. Martinez, 28 So. 788; I.C.R.R. v. Wales, 171 So. 536.

This record establishes beyond doubt that the letter complained of was not only not a libelous publication, but that it was not defamatory at all.

U.S.F. G. v. State of Oklahoma, 43 F.2d 532; Walgreen Co. v. Cochran, 61 F.2d 357; Thomas v. McShan, 99 Okla. 88, 225 P. 713; Whitley v. Newman, 9 Ga. App. 89, 70 S.E. 686; Grand Union Tea Co. v. Lord, 231 Fed. 390; Pittsburg, A. M. Ry. Co. v. McCurdy, 8 A. 230; Goodrich v. Hooper, 97 Mass. 1, 93 Am. Dec. 49.

The occasion of the alleged libelous communication here sued on and the alleged defamation were both qualifiedly privileged.

Newell, Slander Libel (4 Ed.), sec. 389, page 415; 74 So. 278, L.R.A. 1918F, 566, Ann. Cas. 1917E, 985, 92 A.L.R. 1175; 36 C.J. 1237, 1271; 17 R.C.L. 341, 359-360; Watts v. Longsdon, I.K.B. 130, 69 A.L.R. 1005; Hoeppner v. Demkirk Ptg. Co., 254 N.Y. 95, 172 N.E. 139; Kroger, etc., Co. v. Youncy, 66 F.2d 700; Cartwright-Capps Co. v. Fischel Kaufman, 113 A.L.R. 1175, 113 Miss. 359, 74 So. 278; Louisiana Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705; N.O. Gt. Nor. Ry. v. Frazer, 158 Miss. 407, 130 So. 493; Grantham v. Wilkes, 135 Miss. 777, 100 So. 673; Neely v. Payne, 126 Miss. 854, 89 So. 669; Wrought Iron Range Co. v. Baltz, 123 Miss. 550, 86 So. 354.

It is settled law that where, as here, the alleged defamatory words are not actionable per se, not only must special damages be specifically and definitely alleged and shown, but their author is not liable for their voluntary and unjustifiable repetition, without his authority or request, by others over whom he has no control. Such repetition cannot be considered the necessary, natural and probable consequence of the original libel.

Newell, Slander Libel (4 Ed.), sections 303-5, page 339; Odgers, Libel Slander (5 Ed.), 177-8; 36 C.J. 1230; Schoepplin v. Coffey, 162 N.Y. 12, 56 N.E. 502; Shurtleff v. Parker, 130 Mass. 293, 30 Am. Rep. 454; Bigley v. Nat. Fid. Cas. Co., 94 Neb. 813, 144 N.W. 810, 50 L.R.A. (N.S.) 1040; Maytag v. Cummings, 260 Fed. 74, 16 A.L.R. 712.

This record shows no desire, intent or authority by appellant to the Teche Lines to repeat the alleged libel, nor any reasonable anticipation that they would or should, no moral or other necessity therefor.

We assert that this record is so indefinite, vague and general as to be practically frivolous upon the nature, kind, character and quantum of damages, actual, special or compensatory. As to injury of appellee's reputation or standing in the community this record is without any proof whatever.

Under the state of facts we submit that the law will not sustain such an arbitrary, irresponsible and excessive award.

Newell, Slander Libel (4 Ed.), sections 789-791, pages 881-900, sec. 792, page 900, and sec. 794, page 902; Coffin v. Coffin, 4 Mass. 1, 3 Am. Dec. 189; Stafford v. Morning Journal Assn., 68 Hun. 467, 22 N.Y.S. 1008; Pavlovski v. Thornton, 89 Ga. 829, 15 S.E. 822; Wilford v. Berkeley, 1 Burr. 609; Seaman v. Allen, 2 Wils. 160; Huckle v. Money, 2 Wils. 205; Pfister v. Milwaukee Free Press Co., 139 Wis. 627, 121 N.W. 938; Clair v. Battle Creek Journal Co., 168 Mich. 467, 134 N.W. 443; Coleman v. Southwick, 9 Johns. 45, 6 Am. Dec. 253; Crocker v. Hadley, 102 Ind. 416, 1 N.E. 734; Hulbert v. Arnold, 83 N.J.L. 114, 83 A. 497; Hines v. Shumaker, 97 Miss. 669, 52 So. 705; Miss. Cent. R. v. Smith, 112 Miss. 60, 159 So. 562, 154 So. 533; N.O. G.N.R. v. Frazer, 158 Miss. 407, 130 So. 493; Y. M.V.R. Co. v. Mullins, 115 Miss. 343, 76 So. 147; Kern v. Bridwell, 119 Ind. 226, 21 N.E. 664; Prat v. Pioneer Press Co., 30 Minn. 41, 14 N.W. 62, 18 N.W. 836, 28 N.W. 708; Holmes v. Jones, 50 Hun. (N.Y.) 345, 3 N.Y.S. 156; Haight v. Hoyt, 50 Conn. 583; Van Tuyl v. River, 3 Ill. App. 556; Clark v. Morrison, 80 Or. 240, 156 P. 429; Jones v. Brinkley, 174 N.C. 23, 93 S.E. 372; O'Neil v. Adams, 144 Ia. 385, 122 N.W. 976; Taylor v. Mosley, 170 Ky. 592, 186 S.W. 634; 37 C.J. 121, 128-9; 8 R.C.L. 674; 17 R.C.L. 445-5; Massee v. Williams, 207 Fed. 222.

Mitigation does not have to be specially plead.

37 C.J. 62; Jarnigan v. Fleming, 43 Miss. 710; Sec. 535, Code of 1930; Y. M.V.R. Co. v. May, 104 Miss. 422, 61 So. 449, 44 L.R.A. (N.S.) 1138; Burns v. A. V.R. Co., 93 Miss. 816, 47 So. 640; Hill v. A. V.R. Co., 79 Miss. 587, 31 So. 198; S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A.L.R. 167; S.H. Kress Co. v. Sharp, 159 Miss. 283, 131 So. 412; Miss. Cent. R. Co. v. Roberts, 173 Miss. 487, 160 So. 604, 296 U.S. 536; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3; Gulf Ref. Co. v. Miller, 153 Miss. 741, 121 So. 482; Harris v. Sims, 155 Miss. 207, 124 So. 325; Caver v. Eggerton, 157 Miss. 88, 127 So. 727; Bufkin v. Grisham, 157 Miss. 746, 128 So. 563; McDonald v. Moore, 159 Miss. 326, 131 So. 824; Miss. Ice Util. Co. v. Pearce, 161 Miss. 252, 134 So. 164; So. Bell T. T. Co. v. Quick, 167 Miss. 438, 149 So. 107; Pub. Serv. Corp. v. Watts, 168 Miss. 235, 150 So. 192.

The trial court erred in authorizing the recovery of punitive damages. It is thoroughly established by the jurisprudence of Mississippi that there can be, as a matter of law, no punitive damages in a libel case without positive proof of actual malice, which this record not only does not disclose but affirmatively refutes. This record may be searched in vain for any effort to prove malice.

Jackson Light Tr. Co. v. Taylor, 112 Miss. 60, 72 So. 856; Y. M.V.R. Co. v. Mullins, 115 Miss. 774, 76 So. 147; Y. M.V.R. Co. v. Mullins, 158 Miss. 774, 131 So. 101; Bounds v. Watts, 159 Miss. 307, 131 So. 804; Miss. Power Co. v. Byrd, 160 Miss. 71, 133 So. 193; 37 C.J. 125; 17 R.C.L., sec. 202, page 441.

It is the universally recognized rule of law applicable that in libel actions the damages claimed must, ex necessitate, and as a prerequisite to recovery of damages for alleged injury, in all cases be the direct result of the publication of the alleged defamatory words.

Newell, Slander Libel, (4 Ed.), sec. 567, page 616, sec. 571, page 618, sec. 794, page 902; 36 C.J., 1224, 1230-1; 17 R.C.L. 399, 434; 37 C.J. 13, 39, 72, 150-151.

As was apparent from the questions propounded by counsel for appellee — and from his argument to the jury — a deliberate appeal to the prejudice and passion of the jury was made on the theory that these affiliated bus companies, all of them non-resident corporations, combined and conspired to drive appellee out of business and deprive him of his joint agency at Natchez. This record affirmatively disproves that contention.

This record affirmatively and conclusively establishes the truthfulness of the statement made in the letter and here complained of as constituting the defamation entitling appellee to money damages in this civil action for a libelous publication thereof, which properly arises as a defense under the general issue and was noticed as special matter and the failure and refusal of the trial judge to so find, hold and rule upon the various pleadings, motions and instructions predicated thereon, constitutes clear and manifest prejudicial error.

36 C.J. 1231, 1234-5; 17 R.C.L. 325; McAllister v. Detroit Free Press Co., 76 Mich. 338, 43 N.W. 431, 15 A.S.R. 318; Cotulla v. Kerr, 74 Tex. 89, 11 S.W. 1058, 15 A.S.R. 819; Williams Ptg. Co. v. Saunders, 113 Va. 156, 73 S.E. 472, Ann. Cas. 1913E 693; Newell, Slander Libel (4 Ed.) sec. 696, page 764; Neely v. Payne, 126 Miss. 854, 89 So. 669.

The facts are fully developed in this record and without material conflict upon fundamental issues. Questions of law are mainly involved. If the appellee has not stated and shown a cause and right of action in this proceeding, it is perfectly apparent that he never can or will. All the "breaks" of the trial went in his favor, both in the introduction of evidence, rulings of the judge, instructions to the jury and those unclassifiable elements inherent in every civil action trial.

I.C.R.R. Co. v. Wales, 171 So. 536; Bailey v. Gaskins, 7 Miss. 519; Rigby v. Hardin, 4 So. 114; Rowan v. Lamb, 83 Miss. 45, 35 So. 427; State v. Pigott, 97 Miss. 599, 54 So. 257; Hairston v. Montgomery, 102 Miss. 364, 59 So. 793; Y. M.V.R.R. v. Pope, 104 Miss. 339, 61 So. 450; 4 C.J. 1185; 2 R.C.L. 281; R.C.L. Perm. Supp. 426; Scottish, etc., Inc. Co. v. Warren-Gee Lbr. Co., 104 Miss. 636, 61 So. 310; Fowlkes v. Hardin, 109 Miss. 318, 68 So. 468; Grenada Gro. v. Tatum, 113 Miss. 388; Pearce v. Sharpe, 118 Miss. 107, 79 So. 69; Carter v. Studdard, 118 Miss. 345, 79 So. 225; Hines v. Cole, 123 Miss. 254, 85 So. 199; Couret v. Conner, 123 Miss. 456, 86 So. 277; Davis v. Dantzler Lbr. Co., 126 Miss. 812, 89 So. 148; McCoy v. Tolar, 128 Miss. 202, 90 So. 628; Witherspoon v. State, 138 Miss. 310, 103 So. 134; Berry v. Magee, 140 Miss. 307, 105 So. 518; 100 A.L.R. 775; 60 A.L.R. 433; 18 A.L.R. 955.

The province of the jury is limited to determine issues of fact only and to empower a jury to consider issues of law is "clearly not within the legislative competence."

Aldridge v. Bogue Phalia Dr. Dist., 106 Miss. 626, 64 So. 377; Natchez So. R. Co. v. Crawford, 99 Miss. 687, 55 So. 596; Talbot Higgins Lbr. Co. v. McLeod Lbr. Co., 147 Miss. 186, 113 So. 433; Jackson v. Clark, 152 Miss. 731, 118 So. 350; Spier v. Moseley, 158 Miss. 63, 130 So. 53; Cantrell v. Lusk, 113 Miss. 137, 73 So. 885; Sackler v. Slade, 148 Miss. 575, 114 So. 396; M. O.R. Co. v. Gulf States Lbr. Co., 92 So. 235; Gibson v. W.C. Wood Lbr. Co., 91 Miss. 702, 45 So. 834; Bolling v. Red Snapper Sauce Co., 97 Miss. 785, 53 So. 394; Hayes v. Slidell Lig. Co., 99 Miss. 583, 55 So. 356.

The theory upon which courts are authorized to direct verdicts or give peremptory instructions, as should have been done here, conclusively refutes counsel's efforts to invariably hide behind the jury's skirts.

Porter v. Nesmith, 124 Miss. 517, 87 So. 5; Taylor v. DeSoto Lbr. Co., 137 Miss. 829, 102 So. 260, 103 So. 82; Haynes-Walker Lbr. Co. v. Hawkins, 141 Miss. 55, 105 So. 858; McFadden v. Buckley, 98 Miss. 28, 53 So. 351; Wooten v. M. O.R. Co., 89 Miss. 322, 42 So. 131; Clark v. J.L. Moyse Bro., 48 So. 721; A.G. So. Ry. Co. v. Daniell, 108 Miss. 358, 66 So. 730; Elliott v. G.M. N.R. Co., 145 Miss. 768, 111 So. 146.

That such issues are properly reviewable and determinable here on appeal is not questioned or questionable.

Rhymes v. Jackson Elec. R.L. P. Co., 85 Miss. 140, 37 So. 708; Bankston v. McKnight, 139 Miss. 116, 103 So. 807; St. L. S.F.R. Co. v. Bowles, 107 Miss. 97, 64 So. 968; M. O.R. v. Bennett, 127 Miss. 413, 90 So. 113; Y. M.V.R. v. May, 104 Miss. 422, 61 So. 499; Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3; Miss. Ice Util. Co. v. Pearce, 161 Miss. 252, 134 So. 164.

We submit that the De Zonia letter was improperly excluded and that as to the Carkuff letters they were clearly not within the self-serving written declaration rule.

McCormick Motor Car Co. v. U.S. Rubber Co., 163 Miss. 293, 141 So. 595.

The letters in question are written declarations made ante litem motam, and as such were clearly admissible. Their exclusion was prejudicial error.

22 C.J. 260; 10 R.C.L. 1147-1152.

We respectfully submit that the alleged defamation was not libelous per se; that no special damages were alleged or proved; that there was no publication by appellant and no injury to the character or standing or the business of appellee; that the alleged publication and its occasion was qualifiedly privileged; that appellee established no malice and appellant affirmatively proved want of malice, good faith, ample justification, honest purpose, duty and obligation to disclose to its business associates and, above all, the truth of the shortage in question.

Brandon Brandon and O.M. Hornsby, all of Natchez, for appellee.

Let us first emphasize the fact that this is an action for libel and not for slander, based upon written words and not spoken words, and the rule for construction of language used in these instances is different.

Written words imputing the crime of embezzlement are libelous per se. A positive and express charge of embezzlement is not requisite to constitute a publication libelous per se, it being sufficient if the language used naturally imports the commission of such an offense, as for instance a charge that one is a "defaulter." Indeed imputations in libelous form charging misappropriation, although not amounting to crime, are yet actionable as tending to bring plaintiff into disgrace or disrepute.

36 C.J. page 1153, sec. 20, page 1155, secs. 21 and 22, and page 1201, sec. 128; Iron Age Publishing Co. v. Crudup, 5 So. 332; 17 R.C.L., pages 263-264.

We submit to the court that the language used by this appellant against this appellee was libelous per se.

To the persons to whom the communication was made the words could have but one effect, construing the entire communication as a whole, and that was that the appellee was charged with being an embezzler or criminally short, for it speaks of him as being short a stated sum of money, of having remitted a part, presumably after being confronted with the charges of shortage and required so to do, but yet withholding some part, without any explanation being given of the true facts, which were that the appellee was entitled to withhold that which he did withhold and more.

The jury sitting in the case, being men in the community wherein the words were spoken and wherein the appellee was engaged in business of whom the words were spoken, placed thereon that same construction of a charge made of embezzlement and faithlessness in the performance of trust and confidence. The court himself upon the trial of this case placed thereon the same construction. The words could have no other reasonable intention or intent, aside from any words of inducement laid to them in the declaration.

Written words may be libelous where from the entire text it is clear that a charge is made, if they tend to expose a person to public hatred, contempt, ridicule, aversion, or disgrace, or to induce an evil opinion of him in the mind of right thinking persons and to deprive him of their friendly intercourse and society.

36 C.J. 1163.

It is well settled that, to constitute libel, it is not necessary that written statements should contain an imputation of an offense that may be punished as a crime. It is sufficient if the language tends to injure the reputation of the party, or to throw contumely or to reflect shame and disgrace upon him. As a general rule written words exposing the person to whom they refer to hatred, ridicule, contempt, shame or disgrace are libelous per se. In this connection, there is a clear distinction between written or printed defamation and merely verbal slander.

17 R.C.L., pages 286-287.

A publication which charges a breach of trust or betrayal of confidence is libelous per se.

36 C.J. page 1166, sec. 32, page 1167, sec. 37, page 1170, sec. 44, page 1180, sec. 69, page 1183, sec .76; 17 R. C.L., page 294, sec. 34; Ohio, etc., R. Co. v. Press Pub. Co., 48 Fed. 206.

Under the jurisprudence of this state and, in fact, under the provisions of Section 13 of the Constitution of the State of Mississippi, the jury is the judge of whether or not the words used were of themselves defamatory and damaging to this plaintiff, and, therefore, under proper directions as to what would constitute libel per se, were the judge of whether or not the particular words used were libelous per se.

If in fact the words used were neither defamatory upon the face nor shown to be defamatory by the special averments contained in the declaration, yet as charged in the declaration the same were maliciously, falsely and tortiously published of the plaintiff by the appellant for the purpose of injuring him in his business, and injury to his business, as shown by the declaration to have been a natural result of the wrongful publication and as charged in the declaration, injury to his business and good name did in fact result, wherefore the action of the appellant was an actionable wrong by it committed.

Morasse v. Brochu, 8 L.R.A. 524; Riding v. Smith, L.R. 1 Exch. Div. 91; Lynch v. Knight, 9 H.L. Cas. 600; Barley v. Walford, 9 Q.B. 197; Green v. Button, 2 Cromp. M. R. 707; Trenton Mut. L. F. Ins. Co. v. Perrine, 23 N.J.L. 402; Odgers, Libel and Slander, pages 89 and 92.

We respectfully submit to the court that the declaration most certainly did state in sufficient language a wrongful act done by the appellant against the appellee.

If the words used were actionable per se, then no special damages need be plead, but if actionable per quod, or if actionable under the Brochu case, supra, then special damages need be alleged. Has this plaintiff in the instant case so alleged them? How the contrary can be urged by able counsel for the appellant we cannot conceive. A reading of the declaration disposes of the argument submitted by counsel for the appellant. The plaintiff has set forth in full and detailed narrative the facts and circumstances which existed at the time the wrong was done to him in his business and in his charge that because of the publication in line with the intent, desire and purpose of the defendant his business was destroyed, his patronage withdrawn from him, and he was forced to surrender the lease which he had with McClure, and he was damaged in his good name and reputation and his livelihood taken from him.

We respectfully submit that the trial court did not err in overruling the demurrer to the declaration herein.

King v. Northeastern Publishing Co., 2 N.E.2d 486.

Upon the trial of this cause, if the language used is capable of bearing the meaning assigned to it by innuendo in the declaration is for the court, and whether that meaning is truly assigned to the language is for the jury.

Interstate Co. v. Garnett, 154 Miss. 325, 122 So. 373; Kroger Grocery Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335.

If the libel of plaintiff by appellant be held to have been such, per se, then it was not incumbent upon plaintiff to prove special damages for such is presumed.

Furr v. Speed, 74 Miss. 423, 21 So. 363; Doherty v. L.B. Price Merc. Co., 132 Miss. 39, 95 So. 790; Jones v. Spradlin, 18 Ala. 29, 88 So. 373.

Even where the publication is not actionable per se because as ordinarily understood it will not naturally and necessarily cause injury, yet, if it be not privileged, damages may be recovered on proper allegations and proofs for such special injury as is the natural and proximate, though not necessary, consequence of wrongful publication.

Hargis v. Metropolis Co., 118 Fla. 825, 160 So. 205; 17 R.C.L., sections 193-201.

Malice is an element properly to be considered not only for the awarding of exemplary damages but for aggravation of damages.

17 R.C.L., sec. 192.

That the jury was the sole proper judge of the amount of damages under all the facts in this case and on the record as made in the trial thereof was freely conceded by the defendant.

The plaintiff proved special damages from the libelous publication far in excess of the amount of actual damages ($10,000.00) demanded by him and the record fully justifies the verdict of the jury as to amount.

On the part of the plaintiff we can cite numerous cases as precedent for a larger award of damages than was allowed in this case.

Sanders v. Johnson, 36 Am. Dec. 564; Mitchell v. Bradstreet Co., 116 Mo. 226, 22 S.W. 358, 20 L.R.A. 138; 17 R.C.L., sec. 206; Hines v. Shumaker, 97 Miss. 668, 52 So. 705; Kroger Groc. Baking Co. v. Harpole, 166 So. 335; N.O. G.N.R. v. Frazer, 158 Miss. 407, 130 So. 493; Interstate Co. v. Garnett, 154 Miss. 325, 122 So. 373.

Malice and reckless disregard of plaintiff's rights was proven, warranting allowance of exemplary damages aside from the fact that the charges was libelous per se.

Hubbard v. Rutledge, 52 Miss. 581; 36 C.J. 1215 and 1146; Kroger Groc. Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335; Jefferson v. Bates, 152 Miss. 128, 118 So. 717.

Under its plea of general issue, by notice, the defendant pled "truth" as an affirmative defense to this suit; though that defense was, in said notice, so intermingled with the defense of qualified privilege as to be hardly distinguishable as a separate defense.

That the defendant (appellant) utterly failed to establish this affirmative defense; that the truth of the libel was utterly disproved; and that the court and jury were both warranted in finding against the defendant as to this affirmative defense, is fully demonstrated by the record.

The publication sued on was not qualifiedly privileged.

17 R.C.L. page 341, sec. 88 and page 343, sec. 89; Shumaker v. Southbend Spark Arrester Co., 135 Ind. 471, 35 N.E. 280, 22 L.R.A. 332; Holmes v. Clisby, 121 Ga. 241, 48 S.E. 934, 104 A.S.R. 103; Ramharter v. Olson, 26 S.D. 499, 128 N.W. 806, Ann. Cas. 1913B 253; Brown v. Vannaman, 85 Wis. 451, 55 N.W. 183, 39 A.S.R. 860; Flynn v. Boglarsky, 164 Mich. 513, 129 N.W. 674, 32 L.R.A. (N.S.) 740; 36 C.J., pages 1241-1245, sections 206, 209, 212, and pages 1247-1248, sec. 217; Samples v. Carnahan, 1 Ind. A. 55, 51 N.W. 425; Rosenbaum v. Roche, 46 Tex. Civ. A. 237, 111 S.W. 1164.

As will be discovered by examining the text and authorities, the association or relationship or interest which will ordinarily entitle one to the defense of qualified privilege exists generally in the following associations, to-wit: Between attorney and client; attorney and stenographer or clerk; bishop and clergyman; clergyman and parishioners; clergyman and curate; creditor and surety; directors and stockholders of a corporation; employer and employee; partners and ex-partners; landlord and tenant; physician and patient; principal and agent; reports by mercantile agencies and upon mercantile standing between members of mutual protective associations; communications in the course of mutual controversy; as to the character of an employee under certain circumstances, usually in response to inquiry; etc.

Counsel for appellant will not be able to cite a single case where may be shown that the mere fact that two or more persons may be dealing with another in their several business relationships, unassociated with one another, will establish an interest, duty, or occasion of qualified privilege for defamation of such other.

A charge of embezzlement, which was not recognized as a crime at common law, is clearly actionable per se at the present day. In many instances, the accusation is made in language of an indirect character, and where the meaning of the words is doubtful, it is necessary to leave the question as to their exact purport to the jury.

17 R.C.L., pages 271, 272 sec. 13.

Plaintiff unquestionably had the right on trial to attempt to prove and to urge before the court and jury that the word "short" as used, charged him with dishonesty, or, as alleged in the declaration, declared that he was dishonest and unfaithful in the discharge of his duties and trust.

17 R.C.L., pages 323-324, sec. 66; Grand Union Tea Co. v. Lord, 231 Fed. 390; Kroger Groc. v. Harpole, 166 So. 335, 175 Miss. 227.

Very often by a course of argument counsel on one side of an argument provoke a course of argument which would not be made without being provoked, and it is easy, of course, for the trial judge to see whether this is true or not.

Nelms Blum Co. v. Fink, 131 So. 817, 159 Miss. 372.

It was entirely proper for the plaintiff in his declaration by innuendo to make known and to plead that the words as used tended to charge him with the crime of embezzlement and with dishonesty in the performance of his duties. Such being so, it was entirely proper (since the words were susceptible of that meaning) for counsel to argue that the words had that meaning. As heretofore pointed out and as hereinaftermore particularly emphasized, the word "shortage" being susceptible of a meaning charging a crime, embezzlement, or dishonesty, the jury alone were the judges of whether the words as used in this particular case did convey such meaning.

Hearst v. New Yorker Staats Zeitung, 71 Misc. 7; Newell, Slander Libel (4 Ed.), page 125, sec. 100, page 250, sec. 202; Sunley v. Metropolitan Life Ins. Co., 132 Iowa, 123, 109 N.W. 463, 12 L.R.A. (N.S.) 91; Clegg v. Laffer, 3 Moore Sc. 727, 10 Bing. 250; Mallory v. Pioneer Press Co., 34 Minn. 521, 26 N.W. 504; Ayres v. Toulmin, 74 Mich. 44, 41 N.W. 855; Hart v. Sun Printing Assn., 79 Hun. (N.Y.) 358, 29 N.Y.S. 434; Newell, Slander Libel (4 Ed.), pages 274-275, sections 236 and 237; Lewis v. Black, 27 Miss. 425; Posnett v. Marble, 11 L.R.A. 162; Bailey v. Kalamazoo Publishing Co., 40 Mich. 251.

We submit that to charge an agent handling funds of another with being "short" as to such funds, to the every day meaning of the word and in fact to everybody, carries with it the meaning of a charge of embezzlement and dishonesty; that is the commonly accepted meaning of the words when so used.

When the court holds the communication to be entitled to the privilege, the jury should be instructed to consider and determine whether or not the defendant used the occasion for the sole reason and purpose which conferred the privilege upon his statement; and if the jury find from the surrounding circumstances, as shown by the evidence, that he did so use it, the verdict will be for the defendant. But if, on the other hand, they find that he employed the occasion in bad faith, to gratify or to further some indirect or malicious motive, or for some other improper reason, the verdict will be for the plaintiff. Where the communication is entitled to the privilege, the burden of proof is then upon the plaintiff to show actual malice in the sense of oblique design or bad faith.

Newell, Slander Libel, 382, sec. 346.

We submit that there was ample evidence before this jury for the jury to find that the occasion for the publication was by this defendant employed "to gratify or to further some indirect or malicious motive," in that they employed the occasion for the purpose of causing other employers of Beard to leave him and for the purpose of gaining for themselves his place of business and his business, and to obtain an advantage over its competitors using the same facilities of Beard's agency.

We submit that there was no error committed by the court in excluding the three letters written by Carkuff to his superior Mr. Neff and, further, that if the exclusion of these letters constituted error, then, in the state of the record, such error was harmless and was certainly cured by the court permitting Carkuff to testify as to his personal friendly feeling toward the plaintiff Beard.

The courts should condemn the effort of a litigant to prove his case by unsworn communications and declarations, particularly where the declarant is not personally offered in evidence and no attempt is made even to take the deposition of such witness.

22 C.J., pages 209-210, sec. 168, page 217, sec. 180, pages 220-226, sec. 193, pages 228-229, sec. 194, page 229, secs. 195-196, page 230, secs. 202, 203, pages 231-233, secs. 208, 210, page 259, sec. 262, page 281, sec. 295; Carter v. Catchings, 48 So. 515; Whitfield v. Whitfield, 40 Miss. 352; Johnson v. Stone, 13 So. 858, 69 Miss. 826; Baker v. Kelly, 41 Miss. 696; Pressley v. Quarles, 3 George 151; Barber v. Kinnard, 4 So. 120.

We submit to the court that the three letters were properly excluded from evidence in the strictest meaning of the phrase, and we further invite the attention of the court to the rule that the admissibility vel non of self-serving declarations, or those declarations which we are now considering, is one addressed to the sound discretion of the trial court.

22 C.J., pages 162-164, sec. 90, and page 168, sec. 93; Ward v. Thompson, 146 Wis. 376, 131 N.W. 1006; 1 R.C.L., pages 472, 473, sec. 8.

When special damages are demanded, must it be shown that the wrong was the proximate cause of the special damages demanded? We respectfully submit that the plaintiff met this burden of proof and did establish that the wrong complained of was the proximate cause of the special damages demanded in the plaintiff's declaration.

Argued orally by F.G. Hudson, Jr., and E.H. Ratcliff, for appellant, and by Gerard Brandon, and O.M. Hornsby, for appellee.

1. LIBEL AND SLANDER.

Letter of transportation company's superintendent, to officers of three other transportation companies with which first transportation company was associated in operating a union bus station, recommending discharge of agent at such union station on ground of shortage in his account, was libelous.

2. LIBEL AND SLANDER.

Where letter was qualifiedly privileged, it was immaterial whether letter was libelous per se or libelous per quod.

3. LIBEL AND SLANDER.

A statement, whether oral or written, not excessive or intemperate in its language, made without malice and in good faith on a subject-matter in which the person making it and the person to whom it is made have a legitimate common interest, is privileged on the ground of public policy.

4. LIBEL AND SLANDER.

A presumption of good faith arises as to a privileged communication which is allegedly libelous, and the burden of showing malice or bad faith is cast upon plaintiff asserting its libelous character.

5. LIBEL AND SLANDER.

The term "malice," as characterizing an element activating the writer of an allegedly libelous communication, relates to the state or condition of mind of the person who writes the defamatory words, and means that the person who writes or speaks is actuated by ill will or spite or hatred, or else that he spoke or wrote with a wanton and reckless disregard of whether the words were true or not.

6. LIBEL AND SLANDER.

As respects wantonness or recklessness of allegedly libelous communication written by transportation company's superintendent, in which plaintiff's discharge as station agent was recommended because of shortage in his accounts, as revealed by an auditor's report, a presumption of auditor's competency and reliability arose from fact that auditor had been engaged as such for 26 years, 18 of which were in the employ of transportation company.

7. LIBEL AND SLANDER.

In libel action based on alleged libelous character of letter of transportation company's superintendent, in which plaintiff's discharge as station agent was recommended on ground of shortage in accounts, as revealed by an auditor's report, refusal to admit full testimony offered as to previous audits and reports which showed discrepancies and apparent shortages was error, as such evidence had a material bearing upon question of superintendent's good faith and want of malice.

8. LIBEL AND SLANDER.

In action by union bus station agent against transportation company based on alleged libelous character of letter of transportation company's superintendent, based on an auditor's report, recommending station agent's discharge on ground of shortage in accounts, superintendent was entitled to rely upon the auditor's report under the evidence, and in so doing was guilty of no bad faith, so that, as far as malice or want of good faith on part of superintendent of transportation company was concerned, no cause of action existed against company.

9. LIBEL AND SLANDER.

Evidence held not to reveal any alleged conspiracy to secure discharge of union bus station agent upon which station agent's libel action, predicated upon letter recommending his discharge for shortage in his accounts, could be based.

10. EVIDENCE.

Surmises or conjectures are not sufficient to support a verdict and judgment.

11. LIBEL AND SLANDER.

Union bus station agent's libel action should be predicated, not upon letter written by transportation company's superintendent recommending agent's discharge for shortage in accounts as revealed by audit, but rather upon publication by auditor of such audit; letter written by superintendent being regarded as merely a republication of a libel originated and committed by the auditor, an authorized agent of the company acting within the scope of his duties.

12. LIBEL AND SLANDER.

Auditor's report showing shortage in union bus station agent's accounts was qualifiedly privileged and required showing that auditor acted maliciously or in bad faith in order that libel action be predicated thereon.

13. APPEAL AND ERROR.

In action for damages for libel, reversal of judgment was required for lack of substantial facts in record upon which a verdict including punitive damages could be sustained.

14. LIBEL AND SLANDER.

Union bus station agent was not entitled to special damages in libel action based on alleged defamatory character of communication in which his discharge was recommended for shortage in his accounts, where his discharge would have been accomplished even if the allegedly defamatory portion of letter were omitted, since the defamatory part of the letter was not the proximate cause of alleged special damages.

15. LIBEL AND SLANDER.

Letter of transportation company's superintendent, referring to prospective new agent for union station, could furnish no basis for libel action by present agent, whatever the result thereof.

16. TRIAL.

Trial judge's reservation of ruling as to material matters in trial before jury is disapproved.

17. EVIDENCE.

Joint audits are admissible in evidence when each auditor personally appears as a witness and swears to the correctness of portion done by him.

18. COMMON LAW.

The common law goes no further in any of its principles or rules than the reasons therefor.

19. EVIDENCE.

When an audit has been made by more than one person, one or more of them may be interrogated as experts in regard to the summaries and finished results and is not confined solely to the part done by him.

Griffith, J., delivered the opinion of the court.

During the months of November and December, 1933, and for some time theretofore, four bus companies maintained a union bus station in Natchez with appellee as the agent in charge. These companies were the Teche Greyhound Lines, of which J.G. Gaston was traffic manager; the Tri-State Transit Corporation, of which W.H. Johnson was president and general manager; the Interurban Transportation Company, of which M.W. Walker was president and general manager; and appellant, of which F.K. Carkuff was superintendent.

On December 8, 1933, Mr. Carkuff wrote to the said officers of said other lines the following letter:

"Monroe, Louisiana. "December 8, 1933.

"Mr. J.G. Gaston, "Mr. W.H. Johnston, "Mr. M.W. Walker.

"Gentlemen:

"Our auditor, Mr. W.K. Olmstead, in checking agent at Natchez, found him about $79.20 short. However he made remittance the same morning for $48.00 holding a balance of $38.00 not remitted.

"Due to the fact that our bond company will not permit such shortage it looks as though it will be necessary to move our station or have someone else take charge of station at Natchez. If one of us move out, there is not enough revenue in the station to keep it operating.

"Mr. G.B. Brooks who lives at Oakdale, Louisiana, has talked to Mr. J.B. McClure, the landowner, in regards to taking over the station agency should Mr. Beard give it up. This Mr. Brooks has been recommended very highly to me, and if it is satisfactory with the other bus companies, I will talk to Mr. Brooks, and have him talk to each of you. If either of you have any man in mind that can handle the station and could accept Mr. McClure's contract, would be glad to stay in this station. I believe it is a help to all of us to maintain this Union Station. Would appreciate very much a recommendation from each of you in regards to what action should be taken in this line. It will be necessary for us to make a change in the near future.

"Very truly yours, "[Signed] F.K. Carkuff."

"cc-P.J. Neff."

On September 17, 1934, a suit for libel, founded upon the foregoing letter, was instituted by appellee against appellant company, and upon the trial thereof a judgment was recovered by appellee for a large sum, and appellant has prosecuted this appeal.

A considerable portion of the briefs for both sides is devoted to the question whether the letter constituted a libel, and, if so, whether it was libelous per se or libelous per quod. Conceding that it was libelous, Great Atlantic Pacific Tea Co. v. Majure, 176 Miss. 356, 167 So. 637, 168 So. 468, we are of the opinion that the question whether it was libelous per se or libelous per quod is immaterial, for in either event it was qualifiedly privileged. It is definitely settled in our decisions, as well as in the general jurisprudence of the country, that a statement, whether oral or written, not excessive or intemperate in its language, made without malice and in good faith on a subject-matter in which the person making it and the person to whom it is made have a legitimate common interest, is privileged on the ground of public policy. The presumption of good faith arises as to such privileged communications, and the burden of showing malice or bad faith is cast upon the plaintiff. Louisiana Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705; Gardner v. Standard Oil Co. (Miss.), 175 So. 203.

The term "malice," as used in this connection, relates to the state or condition of mind of the person who speaks or writes the defamatory words, and means that the person who writes or speaks is actuated by ill will or spite or hatred, or else that he spoke or wrote with a wanton and reckless disregard of whether the words were true or not. Kroger Grocery Baking Co. v. Harpole, 175 Miss. 227, 238, 166 So. 335.

The proof is that Mr. Carkuff was, and at all times had been, friendly with appellee, and at no time entertained any ill will or spite, or hatred against him. Nothing to the contrary is attempted to be asserted even by appellee himself in his testimony, and is admitted in one of the briefs filed in his behalf. And as to the issue of wantonness or recklessness, which at the same time involves the issue of good faith on the part of Carkuff, it was assumed as a fact by both sides throughout the trial that Olmstead did make the report substantially as stated in the letter. Appellee himself stated that "the result of Mr. Olmstead's audit is set forth in that letter," and appellee in his said brief admits that such a report was made by the auditor; but appellee says that the report was made by the auditor to the general manager of appellant company at St. Louis — as to which latter there is not a word of evidence in the record. So far as there is any evidence to the contrary, the report may have been made direct to Mr. Carkuff. The auditor, Olmstead, had been engaged as an auditor for twenty-six years, eighteen of which were in the employ of appellant company. This length of service raises a presumption of his competency and reliability. Moreover, some of the admitted testimony shows without substantial dispute that on several previous occasions there had been discrepancies disclosing apparent shortages upon audits of appellee's financial accountability to appellant company, which both Olmstead and Carkuff had treated with patience and forbearance, each of them offering suggestions and aid to appellee for the elimination of these irregularities. In this connection, although, as observed, sufficient evidence was admitted so far as the purposes of the present record is concerned, it was erroneous for the court to refuse to admit the full testimony offered as to previous audits and reports, as this evidence had a material bearing upon the question of good faith and want of malice. Without discussing the facts further but taking all of them into view, we are of the opinion that Mr. Carkuff was entitled to rely upon the auditor's report — that in doing so he was guilty of no bad faith, and that so far as any malice or want of good faith on the part of Carkuff is concerned, no cause of action exists against appellant company.

We have not overlooked the purport of the argument, stressed in appellee's principal brief and in the oral presentation, that the letter by Carkuff was the result of a scheme hatched in the general office of appellant company in St. Louis to get rid of appellee as the agent of the said companies at Natchez; that the general manager at St. Louis had directed the auditor to go to Natchez and make a prejudged audit and to report such an audit to the general manager, and when this was done Carkuff was directed by the St. Louis office to write the letter as a part of said scheme. We have carefully read this record, not once but several times, and we fail to find therein any substantial evidence of facts which would dependably support any such conclusion. We must pronounce it as a surmise or conjecture; and as we have often said in this court, surmises or conjectures are not sufficient to support a verdict and judgment.

As we see this case, the only way that a recovery might be had by appellee, if at all, would be for him to declare, not upon the letter written by Carkuff as the foundation of his suit, but upon the publication by Olmstead of his said audit and that the letter by Carkuff, as to which as an original proposition there is no liability, was merely a republication or conduit of a libel originated and committed by Olmstead, an authorized agent of the company acting within the scope of his duties. Since the report of his audit was also qualifiedly privileged, it would be necessary to show that the auditor acted maliciously or in bad faith, as is required to be shown in respect to other communications of qualified privilege. The statements contained in this paragraph are not to be considered, however, as the law of the case, nor do we decide whether an amended declaration would be necessary, but we call attention to Neely v. Payne, 126 Miss. 854, 89 So. 669. And we do not decide whether an amendment, if necessary, would fall within the one year's statute of limitations. We refer to the matters mentioned in this paragraph as reasons for our judgment of reversal and remand, rather than a judgment of reversal and dismissal.

Along with the considerations mentioned in the preceding paragraphs of this opinion, we add that the judgment must be reversed, because there are no substantial facts in this record upon which, under familiar rules, a verdict which includes punitive damages, as does this verdict, can be sustained; and because the special damages allowed under the instructions for injury to appellee's agency business cannot be sustained, the evidence having fully disclosed that the defamatory part of Carkuff's letter was not the proximate cause of said special damages; that is to say, had the first two paragraphs of the letter been omitted, the same result would have followed. Undoubtedly Carkuff had a right to write the following paragraphs and no action could be sustained as to those paragraphs whatever the result thereof was. And because of the confusion in the record as to whether the joint audit as made by Olmstead and Evans, the latter being the auditor for the Teche lines, was fully admitted in evidence, and because of several other errors, which we do not specifically mention here because not likely to arise in a new trial — except that we do call attention to the several instances in which as to material matters the trial judge reserved ruling, a practice which as to trials before juries has been expressly disapproved by this court in Warren v. State, 174 Miss. 63, 70, 164 So. 234.

Joint audits are admissible in evidence when each auditor personally appears as a witness, as was done in this case, and swears to the correctness of the portion done by him. If this were not allowable, many audits in the business world, as well as of public agencies and institutions, could not be expeditiously made. There is no reason for a requirement that an audit is inadmissible unless made entirely by one person; and such is not the rule of law, the maxim being that the common law goes no further in any of its principles or rules than the reasons therefor. And when an audit has been so made by more than one person, one or more of them may be interrogated as experts in regard to the summaries and finished results and is not to be confined solely to the part done by him, otherwise juries might be left without proper guide or appreciation as to the summaries or finished results.

Reversed and remanded.