Hubbard v. Rutledge
57 Miss. 7
Miss.
1879
Check Treatment
Campbell, J.,

The juror, Berry, was not above all exception as a juror, and should have been rejected by the court. He was in the service of the defendant as a clerk, and that made him incompetent. It is true he was peremptorily challenged by the plaintiffs, but this required one of their peremptory challenges, which were exhausted, as the record shows, before the panel was completed. 3 Black. Com. 363 ; 2 Graham & Waterman on New Trials, 245, et seq.

The action of the Circuit Court on various questions of evidence was correct, except in its refusal to permit the defendant to be fully examined by counsel for the plaintiffs as to the effect of the business of the plaintiffs, as merchants, on his business. The fullest cross-examination, calculated to elicit a statement of the true state of feeling on the part of defendant towards the plaintiffs as rivals in business, should have been allowed. The defendant had testified for himself, and had asserted that he was not actuated by malice in writing the letter which was the alleged libel for which the action was brought. He had stated that he was a merchant, and that he had been ordered out of the store of the plaintiffs a short time before the writing of the letter spoken of above, and that he had no ill-feeling towards the plaintiffs. It was the right of the plaintiffs to interrogate him as to the rival business of *13the plaintiffs in competition with his, and how theirs had affected his, with a view to weaken or overthrow bis statement as to the impulse under which he wrote the letter complained of. The vital point in the case is the feeling which prompted the writing of the letter. The defence is, that the defendant acted under an honestly entertained belief of the truth of what he wrote, and with the innocent purpose to advise the insurance company for its advantage and in the interest of honesty and fair dealing. This is the only defence which can shield him from the just consequences of the letter. The jury are to determine the sincerity of this defence, and no obstacle should be thrown in the way of the effort to test it by ascertaining the relations between the defendant and the plaintiffs, when the letter wras written, with a view to discover the motive actuating the writer, so as to determine the truth of his declaration as a witness, that he was not moved by malice to write the letter.

We find no fault with the instructions. The law was propounded by the instructions given with substantial accuracy. The principles of law, applicable to the facts of this case, are plain and simple. There is but a single controverted question in the case; viz. the motive of the defendant in writing the letter, and the grounds he had for making the statements in it. He wrote it, and it is libellous, and damages should be awarded, according to the judgment of the jury, unless it should appear that the defendant acted honestly, and from good motives in writing it. If the occasion was used by the defendant to defame the plaintiffs, or to injure them by inducing the withholding of the money due them on the policy of insurance, because he disliked them, or from any other evil motive, he should be found guilty.. On the other hand, if the defendant had learned that it was well understood in the neighborhood that the plaintiffs had burned their store, and he believed this to be true on reasonable grounds, and that the charge could be established by evidence ; and acting under this belief, and from a desire, honestly entertained, to shield the insurance company from the unjust demand of the plaintiffs, or in the general interest of justice and fairness, and not from any evil motive, he wrote and sent the letter, he should be *14found not guilty. It was the right of tbe defendant to communicate the information he had to the insurance company, if his sole purpose was to do good by preventing the consummation of wrong and injustice,; but if he had no such information, or was not warranted in believing the truth of what he wrote; or made haste to communicate a'false charge, where it might do harm, for the purpose of doing injury, in some way, to a rival in business, or from any unworthy motive, his conduct deserves, and should receive condemnation and punishment. It was the right of the defendant to show what he had heard and believed as to the fire, and what induced him to write the letter, with a view to vindicate his act as one of which the plaintiffs had no right to complain. It was the right of the plaintiff's to meet this defence, and overthrow it, if they could, by any pertinent evidence.

We make no comment on the evidence, but because of the action of the court in holding Berry to be competent as a juror in this case, and in denying to the plaintiffs the right to examine the defendant as to the effect of the business of the plaintiffs on his business, we reverse the judgment, grant a new trial, and remand the case. Sojrdered.