Dedeaux v. King

45 So. 466 | Miss. | 1907

Caxhoon, T.,

delivered the opinion of the court.

The statute (Code 1906, § 10) provides that “all words which from their usual construction and common acceptation are considered as insults and calculated to lead to- a breach of the peace shall be actionable,” etc. The declaration is for damages under that statute, and charges that on a day named “the regular election was being held in the municipality of Longbeach, Harrison county, Mississippi, for the regular election of municipal officers ; that defendant, King, was one of the managers of said election, and was performing the duties as required of a manager; and the plaintiff then and there was a legal and qualified voter of said municipality, and on said election day, while the election was being held, went to the place where the election was being held, and where defendant was acting as such election manager, and plaintiff then and there asked for a ticket that he might vote, whereupon the defendant, King, one of the election managers, said to the plaintiff: ‘You cannot vote because you are a convict. I say you are a "convict, and convicts cannot vote here.’ Said words were spoken then and there-to plaintiff in the presence of several persons, with the intention to> insult plaintiff, and to the very great shame and humiliation of plaintiff, and that said words are, from their usual construction and common acceptation calculated to lead to a breach of the peace and violence, contrary to the statute,” etc. A demurrer was sustained to this declaration.

It is clear that this declaration is demurrable, if it were in libel or slander under the common law, because express malice, or any malice, is not averred; nor is it averred that the statement of the election manager was not actually true. It may or may not be that tbe applicant for a ticket to- vote was a convict,, and yet' be may once have been such and bis disabilities removed, or tbe officer honestly mistaken! It is not averred in the present, declaration that the statement to the plaintiff, as a cause of challenge, that he was a convict, was not true, except inferentiallyr under the averment that plaintiff was a “legal and qualified voter.” Neither does it aver that the challenge was not made in good faith as an officer. King was in fact the election manager under the averment of the declaration, and, it was clearly his duty to challenge every vote which he thought illegal, and it was none the less his duty to do so, even if the challenge would ordinarily be regarded as an insult; nor do we think that the officer, believing it true, would be liable for stating the reason given why Dedeaux should not vote, even if the statement were insulting. Verner v. Verner, 64 Miss., 321, 1 South., 479. The demurrer to the declaration was properly sustained.

Affirmed.