Woodville v. Pizatti

80 So. 491 | Miss. | 1918

Smith, C.. J.,

delivered the opinion of the court.

This is an action for slander, in which there was a judgment for three thousand dollars for the plaintiff. One of the assignments of error is the refusal of the court below to grant the defendant a peremptory instruction.

There is a variance between the words alleged in the declaration to have been spoken by the defendant and those testified to by the plaintiff’s witnesses, which variance is claimed by the defendant to be material, even though the words as they appear from the testimony should be held to be slanderous, but upon which we will express no opinion. The words alleged by the declaration, to have been spoken of tbe plaintiff by tbe defendant were:

“That she, tbe defendant, did not find in tbe bouse everything that was inventoried, and that Mrs. Pizatti, meaning tbe .plaintiff, bad taken property that did not belong to her ont of tbe house, meaning thereby that plaintiff, Mrs. Prances Pizatti, bad stolen said property- ’ ’

It appears from tbe evidence that Mrs. Pizatti was living in, and seems to have claimed tbe ownership of, a bouse in Biloxi; that, before tbe controversy here in question arose, she went to New Orleans, leaving tbe bouse vacant, and remained there several weeks; that in her absence tbe defendant entered, and on Mrs. Pizatti’s return was occupying tbe bouse. On tbe occasion in question Mrs. Pizatti, accompanied by her niece, Miss May Pizatti, and a deputy sheriff, entered tbe bouse without obtaining leave so to do — tbe deputy sheriff stating that be went along with them at tbeir request, “that they bad some personal property there that they wanted to get, and they did not care to go there by themselves.” What then occurred can best be told in tbe language of tbe deputy sheriff, who stated:

■ “When we went in, Mrs. Woodville asked her — this lady (Mrs. Pizatti) — if she bad a warrant, and this lady (Mrs. Pizatti) says, ‘What, a warrant to come in my own bouse;’ and they began to talk between themselves about the things in tbe bouse, and this lady— Q. Who? A. Mrs. Pizatti. So they bad taken tbe dishes and chinaware out of that room and storing it in -the other, and Mrs; Woodville told her there had been an inventory taken of everything in tbe bouse, and all of tbe stuff put on tbe list was not there; that she bad taken part away. Q. Who bad taken part away? A. Mrs. Pizatti. Q. What took place? A. Stopped at that time moving dishes and silverware and so forth, and went upstairs to get some things, and got up there and found a trunk and wardrobe and things had been opened, and clothing, hats, and things scattered on the floor; and so they never moved anything up there, and at that time we left.”

Three witnesses were introduced on behalf of the plaintiff, herself, Miss May Pizatti, and the deputy sheriff, who accompanied them to the house. According to the plaintiff’s testimony the words spoken by the defendant were:

“What have in the house, took it out without inventory; . . . what they had in the house, didn’t have it inventoried. . . . You must have took it out.”

According to Miss May Pizatti they were:

“I don’t find in this house all that was inventoried. She said Mrs. Pizatti had taken things out of the house; . . . that the house was practically empty.”

According to the deputy sheriff they were:

“There has been an inventory taken of everything in the house, and that all of the stuff on the list was.not there, but she had taken part away.”

The defendant disclaimed having used the words charged to have been spoken by her, or any words similar thereto, stating that all she said was, “I was responsible for every thing that was inventoried,” and, when asked by what authority she entered and was occupying the house, replied that she was told by her lawyer that she had the right so to do.

It does not appear from the evidence by whom or for what purpose the inventory referred to was made, but it does appear that the plaintiff was the widow of Salva-dore Pizatti, deceased, and we learn from the briefs of counsel, but not from the record, that the controversy grew out of a dispute over the succession to his estate.

The action is not predicated upon our actionable words statute, and no actual damage to the plaintiff was attempted to he shown; her claim being that the words alleged to have been spoken of her by the defendant are actionable per se under the common law, for the reason that they charge her with the commission of a crime. All words charging a person with the commission of a crime are not actionable per se, hut only such as charge him with the commission of an act which, if true, would subject him to punishment — “for a crime involving moral turpitude, or would make him liable to a punishment infamous in character, or to one which, if not necessarily infamous, would bring disgrace upon him-” 17 R. C. L. 265.

The words complained of, as they appear from the evidence, certainly do not charge the commission of a crime of any of these three characters, and since the plaintiff claimed at least a part of the furniture in the house, which claim does not appear from the evidence to have been disputed by the defendant, they do not necessarily imply that the taking by the plaintiff of a part of the “stuff” out of the house was with any criminal intent whatever.

The peremptory instruction requested by the defendant should have been given.

Eeversed, and judgment here for the defendant.

jReversed.