| Miss. | Mar 15, 1909
delivered the opinion of the court.
This is a suit under section 10, Code of 1906, which provides that “all words which, from their usual construction and common acceptance, are considered as insults, and calculated to lead to a breach of the peace, shall be actionable; and a plea, exception or demurrer shall not be sustained to preclude a jury from passing thereon, who are the sole judges of the damages sustained; but this shall not deprive the courts of the power to grant new trials, as in other cases.” The declaration substantially alleges that about the 9th day of October, 1907, Davis was approached by Woods,' and Woods then and there addressed the following abusive language to Davis, to wit: “What in the God damn hell are these infernal lies you have been circulating on me l” It is averred that the words, from
The declaration states a cause of action in the very words of the statute, and the court should have overruled the demurrer to the declaration. It is stated in the declaration what the words were, and it is further alleged that, from their usual construction and common acceptation, they were considered insulting and calculated to lead to a breach of the peace. Whether the words were such as are usually considered insulting and calculated to lead to a breach of the peace is expressly required by the statute to be-submitted to a jury. Under this statute the jury judge, not only of the amount of the damages sustained, but they are also the judges of whether or not the words used were insulting and calculated to lead to a breach of the peace — in other words, whether the words were actionable, and under the allegations of the declaration it was beyond the power of the court to take away from the jury the consideration of these questions. Crawford v. Mellton, 12 Smed. & M. 328; Scott v. Peebles, 2 Smed. & M. 546. A cursory examination of the case of Dedeaux v. King, 92 Miss. 38, 45 South. 466, will readily differentiate the opinion in that case from any holding here. The words charged to have been said by King to Dedeaux were: “You cannot vote, because you are a convict. I say you are a convict, and convicts cannot vote here.” It is to be remembered under our laws that a •convict is deprived of the right of suffrage, and at the time King made this statement to Dedeaux he was acting as an elec
But it is argued by appellee that, since the judgment sustaining the demurrer recites that plaintiff declined to amend and requested the declaration to be dismissed, he cannot now complain. We do not understand that the plaintiff asked for a dismissal of the declaration for any other reason than that it was his view that the declaration stated a good cause of action, and that there was no necessity for any further pleading. Therefore, instead of asking the court to allow him to amend when the demurrer was sustained, it was manifestly the intention to decline to amend, and let the judgment show that the declaration was dismissed because plaintiff believed that the declaration stated a good cause of action. We think there is no merit in this contention on the part of appellee, and that we would not be justified in distorting the record to mean that which the whole case shows that it was manifest that the appellant never intended. We treat this judgment as just what it is — a judgment of the lower court sustaining a demurrer, with leave 'to the appellant to amend the declaration, which he declined to do, and thereupon a judgment was taken dismissing the declaration. We think any other construction of the action of the court below would be too technical, and would subvert, and not promote, the ends of justice. We would have to close our eyes to the true action of the parties, did we not so decide.
The judgment is reversed and cause remanded.