Cross References —

Right of defendant in criminal prosecution to show truth of matter written or published, see Miss. Const. Art. 3, § 13 and Code §97-3-57.

Right of remedy for injury to reputation, see Miss. Const. Art. 3, § 24.

Limitation on right of plaintiff to recover costs in libel and slander action, see §11-53-33.

Time for bringing action for libel, see §15-1-35.

Provisions relative to statements, editorials, and news stories which reflect upon the honesty, integrity, or moral character of a candidate for elective office, see §§23-15-875 and 23-15-877

Liability of radio and television stations or networks, see §95-1-3.

Right of newspapers and radio or television stations to have opportunity to make corrections prior to suit, see §95-1-5.

Punishment upon conviction for libel, see §97-3-55.

Indictments for libel, see §99-7-33.

Right to show use of insulting words on part of victim in trials for assault and battery, see §99-17-19.

RESEARCH REFERENCES

ALR.

Libel and slander: words reflecting upon one in his character as employee as actionable per se. 6 A.L.R.2d 1008.

Admissibility on question of damages in action for libel or slander of testimony as to the impression or effect of the matter upon the minds of individuals. 12 A.L.R.2d 1005.

Civil liability for insulting or abusive language not amounting to defamation. 15 A.L.R.2d 108.

Libel and slander: statements regarding labor relations or disputes. 19 A.L.R.2d 694.

Libel and slander: defamation of one relative to another by person not related to either, as subject of qualified privilege. 25 A.L.R.2d 1388.

Liability for permitting walls or other portions of place of public resort to be occupied with matter defamatory of plaintiff. 28 A.L.R.2d 1454.

Libel and slander: report of mercantile agency as privileged. 30 A.L.R.2d 776.

Libel and slander: statements and briefs as privileged. 32 A.L.R.2d 423.

Imputation of perjury or false swearing as actionable per se. 38 A.L.R.2d 161.

Liability for statement or publication representing plaintiff as cruel to or killer of animals. 39 A.L.R.2d 1388.

Libel and slander: statements respecting race, color, or nationality as actionable. 46 A.L.R.2d 1287.

Libel and slander: statement or publication that plaintiff has been indicted or is under indictment. 52 A.L.R.2d 1178.

Libel and slander: criticism of literary or artistic works. 64 A.L.R.2d 245.

Libel and slander: privilege in connection with proceedings to disbar or otherwise discipline attorney. 77 A.L.R.2d 493.

Defamatory nature of statements reflecting on plaintiff’s religious beliefs, standing, or activities. 87 A.L.R.2d 453.

Libel and slander: publication by accidental communication, or communication only to plaintiff. 92 A.L.R.2d 219.

Comment Note. – Constitutional aspects of libel or slander of public officials. 95 A.L.R.2d 1450.

Libel: Imputing credit unworthiness to nontrader. 99 A.L.R.2d 700.

Libel and slander: sufficiency of identification of plaintiff by matter complained of as defamatory. 100 A.L.R.2d 227.

Venue of civil libel action against newspaper or periodical. 15 A.L.R.3d 1249.

Libel and slander: what constitutes actual malice, within federal constitutional rule requiring public officials and public figures to show actual malice. 20 A.L.R.3d 988.

Libel by will. 21 A.L.R.3d 754.

Defamation: Actionability of accusation or imputation of tax evasion. 32 A.L.R.3d 1427.

Relevancy of matter contained in pleading as affecting privilege within law of libel. 38 A.L.R.3d 272.

Libel and slander: actionability of statements imputing inefficiency or lack or qualification to public school teacher. 40 A.L.R.3d 490.

Libel and slander: qualified privilege of reply to defamatory publication. 41 A.L.R.3d 1083.

What constitutes “publication” of libel in order to start running of period of limitations. 42 A.L.R.3d 807.

Libel and slander: privilege of reporting judicial proceedings as extending to proceeding held in secret or as to which record is sealed by court. 43 A.L.R.3d 634.

Right of governmental entity to maintain action for defamation. 45 A.L.R.3d 1315.

Libel and slander: actionability of defamatory statements as to business conduct, relating to a single transaction or occurrence. 51 A.L.R.3d 1300.

Libel and slander: privileged nature of communications made in course of grievance or arbitration procedure provided for by collective bargaining agreement. 60 A.L.R.3d 1041.

Libel and slander: privileged nature of communication to other employees or employees’ union of reason for plaintiff’s discharge. 60 A.L.R.3d 1080.

Libel and slander: Dictation to defendant’s secretary, typist, or stenographer as publication. 62 A.L.R.3d 1207.

Disparagement of the quality of intangible property. 74 A.L.R.3d 298.

Libel and slander: Who is “public figure” in the light of Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997.75 A.L.R.3d 616.

Libel and slander: Privileged nature of statements or utterances by member of school board in course of official proceedings. 85 A.L.R.3d 1137.

Libel and slander: Privileged nature of communications between insurer and insured. 85 A.L.R.3d 1161.

Libel by newspaper headlines. 95 A.L.R.3d 660.

Defamation: publication of “letter to editor” in newspaper as actionable. 99 A.L.R.3d 573.

Allowance of punitive damages in action for slander of title or disparagement of property. 7 A.L.R.4th 1219.

Liability of commercial printer for defamatory statement contained in matter printed for another. 16 A.L.R.4th 1372.

Refusal of defendant in “public figure” libel case to identify claimed sources as raising presumption against existence of source. 19 A.L.R.4th 919.

Libel and slander: attorneys’ statements, to parties other than alleged defamed party or its agents, in course of extrajudicial investigation or preparation relating to pending or anticipated civil litigation as privileged. 23 A.L.R.4th 932.

State constitutional protection of allegedly defamatory statements regarding private individual. 33 A.L.R.4th 212.

Libel and slander: privileged nature of statements or utterances by members of governing body of public institution of higher learning in course of official proceedings. 33 A.L.R.4th 632.

Criticism or disparagement of physician’s or dentist’s character, competence, or conduct as defamation. 38 A.L.R.4th 836.

Criticism or disparagement of dentist’s character, competence, or conduct as defamation. 120 A.L.R.5th 483.

Defamation of psychiatrist, psychologist, or counselor. 38 A.L.R.4th 874.

Defamation: application of New York Times and related standards to nonmedia defendants. 38 A.L.R.4th 1114.

Defamation: privilege accorded state or local governmental administrative records relating to private individual member of public. 40 A.L.R.4th 318.

What constitutes “single publication” within meaning of single publication rule affecting action for libel and slander, violation of privacy, or similar torts. 41 A.L.R.4th 541.

Defamation: nature and extent of privilege accorded public statements, relating to subject of legislative business or concern, made by member of state or local legislature or council outside of formal proceedings. 41 A.L.R.4th 1116.

Actionable nature of advertising impugning quality or worth of merchandise or products. 42 A.L.R.4th 318.

Criticism or disparagement of attorney’s character, competence, or conduct as defamation. 46 A.L.R.4th 326.

Libel or slander: defamation by gestures or acts. 46 A.L.R.4th 403.

Defamation: publication by intracorporate communication of employee’s evaluation. 47 A.L.R.4th 674.

Defamation: privilege attaching to news report of criminal activities based on information supplied by public safety officers-modern status. 47 A.L.R.4th 718.

Excessiveness or inadequacy of compensatory damages for defamation. 49 A.L.R.4th 1158.

Defamation: who is “libel-proof.” 50 A.L.R.4th 1257.

Libel and slander: defamation by cartoon. 52 A.L.R.4th 424.

Libel and slander: defamation by photograph. 52 A.L.R.4th 488.

Defamation of class or group as actionable by individual member. 52 A.L.R.4th 618.

Libel and slander: defamation by question. 53 A.L.R.4th 450.

Libel and slander: sufficiency of identification of allegedly defamed party. 54 A.L.R.4th 746.

Defamation of professional athlete or sports figure. 54 A.L.R.4th 869.

Imputation of criminal, abnormal, or otherwise offensive sexual attitude or behavior as defamation – post-New York Times cases. 57 A.L.R.4th 404.

Libel or slander: defamation by statement made in jest. 57 A.L.R.4th 520.

Imputation of allegedly objectionable political or social benefits or principles as defamation. 62 A.L.R.4th 314.

Publication of allegedly defamatory matter by plaintiff (“self-publication”) as sufficient to support defamation action. 62 A.L.R.4th 616.

Defamation: designation as scab. 65 A.L.R.4th 1000.

In personam jurisdiction, in libel and slander action, over nonresident who mailed allegedly defamatory letter from outside state. 83 A.L.R.4th 1006.

Who is “public figure” for purposes of defamation action. 19 A.L.R.5th 1.

Who is “public official” for purposes of defamation action. 44 A.L.R.5th 193.

Libel and slander: Charging one with breach or nonperformance of contract. 45 A.L.R.5th 739.

Defamation: Publication of letter to editor in newspaper as actionable. 54 A.L.R.5th 443.

Liability for statement or publication charging plaintiff with killing of, cruelty to, or inhumane treatment of animals. 69 A.L.R.5th 645.

Libel and slander: statements regarding labor relations or disputes. 94 A.L.R.5th 149.

Immunity of police or other law enforcement officer from liability in defamation action. 100 A.L.R.5th 341.

Defamation of manufacturer, regarding product, other than through statement charging breach or nonperformance of contract. 104 A.L.R.5th 523.

Defamation of building contractor or subcontractor other than through statement charging breach or nonperformance of contract. 106 A.L.R.5th 475.

Defamation of member of clergy. 108 A.L.R.5th 495.

Defamation of church member by church or church official. 109 A.L.R.5th 541.

Criticism or disparagement of physician’s character, competence, or conduct as defamation. 16 A.L.R.6th 1.

Liability of Newspaper for Libel and Slander - 21st Century Cases. 22 A.L.R. 6th 553.

Defamation of Psychiatrist, Psychologist, or Counselor. 67 A.L.R.6th 437.

Validity, construction, and application of federal criminal statute (18 USCS § 1464) punishing utterance of obscene, indecent, or profane language by means of radio communication. 17 A.L.R. Fed. 900.

Am. Jur.

50 Am. Jur. 2d, Libel and Slander §§ 1 et seq.

12A Am. Jur. Pl & Pr Forms (Rev), Fright, Shock, and Mental Disturbance, Form 45 (complaint, petition, or declaration – for damages resulting from intentional infliction of emotional distress-counts for slander and defamation-by employee).

16A Am. Jur. Pl & Pr Forms (Rev), Libel and Slander, Forms 21 et seq. (complaints, petitions, or declaration – libel.

16A Am. Jur. Pl & Pr Forms (Rev), Libel and Slander, Form 70.1 (Allegation – Innuendo – False charge – Plaintiff’s character).

19 Am. Jur. Trials, Defamation, §§ 1 et seq.

1 Am. Jur. Proof of Facts 2d, Identification of Individual Allegedly Defamed, §§ 13 et seq. (proof of identification of unnamed person where referred to in defamatory statement as an individual); §§ 21 et seq. (proof of identification of unnamed person where referred to in defamatory statement as a member of a group or class).

40 Am. Jur. Proof of Facts 2d 649, Sufficiency of Retraction of Defamatory Statement.

5 Am. Jur. Proof of Facts 3d, Defamation by Employer, §§ 1 et seq.

6 Am. Jur. Proof of Facts 3d, Invasion of Privacy by False Light Publicity, §§ 1 et seq.

CJS.

53 C.J.S., Libel and Slander

Injurious Falsehood §§ 1-15, 22, 23, 31–34, 38–41, 43, 77, 83.

Lawyers’ Edition.

“Actual malice” determinations in defamation suits held subject to de novo review. 80 L. Ed. 2d 502.

Law Reviews.

Comment, Ferguson v. Watkins: The Vortex Within Mississippi Defamation Law. 55 Miss. L. J. 619, September 1985.

Practice References.

Damages in Tort Actions (Matthew Bender).

Douthwaite, Ronald W. Eades, Jury Instructions for Personal Injury and Tort Cases (Michie).

Munger, What’s It Worth? A Guide to Current Personal Injury Awards and Settlements, 2003 Edition (Michie).

JUDICIAL DECISIONS

1. In general.

2. Truth as defense.

3. Words uttered or written by agent.

4. When publication complete.

5. Actionable words, in general.

6. —Words actionable per se.

7. Privileged communication.

8. Qualified privilege.

9. Damages.

10. —Mitigation.

11. Judicial proceedings.

12. —Pleadings.

13. —Evidence.

14. —Jury questions.

15. —Instructions.

1. In general.

To maintain claim of defamation, plaintiff must establish false and defamatory statement concerning plaintiff, unprivileged publication to third party, fault amounting at least to negligence on part of publisher, and, either actionability of statement irrespective of special harm, or existence of special harm caused by publication. Boone v. Wal-Mart Stores, 680 So. 2d 844, 1996 Miss. LEXIS 500 (Miss. 1996).

Fault in defamation cases involving private persons, regardless of their social standing, or ranks and privileges, may be predicated on negligence of publisher; plaintiff is not required to prove malice. Boone v. Wal-Mart Stores, 680 So. 2d 844, 1996 Miss. LEXIS 500 (Miss. 1996).

In order for merchant to be immune from liability on defamation claim arising from questioning of customer by merchant for purpose of ascertaining whether or not customer is guilty of shoplifting, pursuant to state merchant immunity statute, merchant must prove that it conducted questioning of suspected shoplifter in reasonable manner. Boone v. Wal-Mart Stores, 680 So. 2d 844, 1996 Miss. LEXIS 500 (Miss. 1996).

“Libel” is method of defamation expressed in writing. McCullough v. Cook, 679 So. 2d 627, 1996 Miss. LEXIS 434 (Miss. 1996).

Claim of defamation requires that plaintiff establish false and defamatory statement which concerns plaintiff, unprivileged publication of statement to third party, fault amounting to at least negligence on part of publisher, and either actionability of statement irrespective of special harm or existence of special harm caused by publication. McCullough v. Cook, 679 So. 2d 627, 1996 Miss. LEXIS 434 (Miss. 1996).

Threshold question in any defamation action is whether published statements are false. McCullough v. Cook, 679 So. 2d 627, 1996 Miss. LEXIS 434 (Miss. 1996).

Action of sheriff in giving license tag number of vehicle which was seized in drug arrest, which had formerly belonged to county chancery clerk and which still had license tag numbers issued in clerk’s name despite sale to individual involved in drug arrest, to reporter without indicating conflict as to ownership was false statement and was actionable as result of material omissions on part of sheriff, even though statement that vehicle was registered to clerk was absolutely true; sheriff knew, and failed to state to reporter, that license tags had been expired for 16 months, or that clerk had sold vehicle but that new license tags had not been issued. McCullough v. Cook, 679 So. 2d 627, 1996 Miss. LEXIS 434 (Miss. 1996).

Material omissions from reports of true facts are capable of creating defamatory impression. McCullough v. Cook, 679 So. 2d 627, 1996 Miss. LEXIS 434 (Miss. 1996).

Public figure who brings libel action can only prevail by proving through clear and convincing evidence that publisher acted with actual malice. McCullough v. Cook, 679 So. 2d 627, 1996 Miss. LEXIS 434 (Miss. 1996).

“Actual malice,” showing of which on part of publisher must be made in order to allow recovery by public figure in libel action, is defined as ill will or reckless disregard of falsity of statements made. McCullough v. Cook, 679 So. 2d 627, 1996 Miss. LEXIS 434 (Miss. 1996).

Where an author, after tape recording interviews with psychoanalyst, wrote magazine article which was later published as book and which contained lengthy passages in quotation marks attributed to psychoanalyst, some of which had no identical statement appearing in author’s taped interviews, author was not entitled to summary judgment in suit by psychoanalyst for libel, because deliberate alteration of words uttered by public figure does not equate with knowledge of falsity for purpose of New York Times standard, unless alteration results in material change in meaning conveyed by statement; and with respect to some of the quotations, evidence presented question for jury whether author acted with knowledge of falsity or with reckless disregard as to truth or falsity. Masson v. New Yorker Magazine, 501 U.S. 496, 111 S. Ct. 2419, 115 L. Ed. 2d 447, 1991 U.S. LEXIS 3630 (U.S. 1991).

Fact issue as to whether misleading actions by sheriff in giving license tag number of vehicle seized in drug arrest, which was licensed to county chancery clerk, to reporter without making clear that there was conflict in ownership of vehicle were taken with actual malice precluding summary judgment in libel action brought by clerk after news story was published stating that vehicle belonging to clerk was seized. McCullough v. Cook, 679 So. 2d 627, 1996 Miss. LEXIS 434 (Miss. 1996).

The discovery rule applies to defamation actions in that limited class of libel cases in which, because of the secretive or inherently undiscoverable nature of the publication the plaintiff did not know, or with reasonable diligence could not have discovered, that he or she had been defamed. Staheli v. Smith, 548 So. 2d 1299, 1989 Miss. LEXIS 410 (Miss. 1989), limited, Raddin v. Manchester Educ. Found., 175 So.3d 1243, 2015 Miss. LEXIS 507 (Miss. 2015).

There are 2 questions which must be answered in determining whether the actual malice standard should be applied in a given defamation case. The first is “Is the plaintiff a public official/public figure or a private figure?” The second is, “Regardless of the plaintiff’s status, is the alleged defamation a matter of public concern or interest?” Staheli v. Smith, 548 So. 2d 1299, 1989 Miss. LEXIS 410 (Miss. 1989), limited, Raddin v. Manchester Educ. Found., 175 So.3d 1243, 2015 Miss. LEXIS 507 (Miss. 2015).

A public employee who was employed as a public university professor involved in geology research and grants was not in that class of higher level, decision-making employees such that he became a public official for purposes of determining whether the actual malice standard applied in a defamation action. Additionally, the professor was not a vortex public figure because the issues involved were not matters of general public concern or interest where the professor alleged that the dean at the university had defamed him in written recommendations against tenure and a pay raise. Staheli v. Smith, 548 So. 2d 1299, 1989 Miss. LEXIS 410 (Miss. 1989), limited, Raddin v. Manchester Educ. Found., 175 So.3d 1243, 2015 Miss. LEXIS 507 (Miss. 2015).

The purpose of §95-1-1 is to allow a cause of action where there is usually a face-to-face encounter or where words are uttered to another in an insulting manner and which would precipitate an immediate, forceful and violent reaction by a reasonable person. The statute is designed to punish words spoken (not written) face-to-face with no cooling-off time before a physical altercation occurred. Thus, the statute did not apply where the statement was typewritten and placed on the windshields of cars and in mailboxes. Isaacks v. Reed, 537 So. 2d 409, 1988 Miss. LEXIS 585 (Miss. 1988).

This section [Code 1942, § 1059] indicates no legislative intent that it shall operate beyond the borders of this state, but is designed to maintain peace within the state. Tattis v. Karthans, 215 So. 2d 685, 1968 Miss. LEXIS 1367 (Miss. 1968).

In the absence of a showing of a North Carolina statute similar to this section [Code 1942, § 1059], no cause of action was created by words spoken in that state and not republished in Mississippi. Tattis v. Karthans, 215 So. 2d 685, 1968 Miss. LEXIS 1367 (Miss. 1968).

In actions brought under this section [Code 1942, § 1059], the court has the power to pass on a demurrer where the demurrer is not based upon a construction of the words, but on some other ground evidenced by the declaration. Tattis v. Karthans, 215 So. 2d 685, 1968 Miss. LEXIS 1367 (Miss. 1968).

Where the declaration brought under this section [Code 1942, § 1059] specifically charged that the original statements complained of were made in state of North Carolina but failed to state that there had been a republication of the statements within the state of Mississippi, the plaintiff could not maintain a cause of action in the latter state. Tattis v. Karthans, 215 So. 2d 685, 1968 Miss. LEXIS 1367 (Miss. 1968).

While store and its assistant manager had a legal right to discharge one of its sales clerks for no reason at all and without recommendation if they saw fit to do so, they had no right to slander such sales clerk or other sales clerks without any proof of wrongdoing on their part. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

It has not been deemed requisite to introduce the customers in a store, or bystanders in a place of business, to testify as to their understanding of the meaning of alleged slanderous words, and it is necessary only to prove that such persons or some of them, heard the charges, or that the facts and circumstances would entitle the jury to believe that they heard and understood the same. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

Notwithstanding that slanderous remarks are directed to several persons, recovery may be had by one of them where the charge is made in the alternative to a smaller group, as distinguished from a general class, and especially if the plaintiff is able to satisfy the jury from all the facts and circumstances testified to that injury was intended to be done the plaintiff by the implications from the language used, and especially when the plaintiff is spoken to both separately and collectively with others, depending upon what the hearers might reasonably understand therefrom. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

A literal construction of the statute will not be applied by the court. Huckabee v. Nash, 182 Miss. 754, 183 So. 500, 1938 Miss. LEXIS 203 (Miss. 1938).

The gravamen of the statute is the speaking of the words, whether true or false, in an insulting manner. Huckabee v. Nash, 182 Miss. 754, 183 So. 500, 1938 Miss. LEXIS 203 (Miss. 1938).

Mutual exchange of opprobrious insulting epithets in violation of the statute and occurring in the same altercation is not actionable where the complaining party provoked such exchange. Huckabee v. Nash, 182 Miss. 754, 183 So. 500, 1938 Miss. LEXIS 203 (Miss. 1938).

In action on note, defendant held not entitled to recoup amount of damages arising from use of actionable words by plaintiff because of defendant’s failure to pay note, since plea of recoupment was an independent tort. Calhoun v. McNair, 175 Miss. 44, 166 So. 330, 1936 Miss. LEXIS 9 (Miss. 1936).

Railroad company liable where superintendent wrote libelous letter to plaintiff’s attorney in reply to claim for damages, where malice or lack of honest belief in truth of statements is shown. Alabama & V. R. Co. v. Brooks, 69 Miss. 168, 13 So. 847, 1891 Miss. LEXIS 172 (Miss. 1891).

Where occasion privileged, plaintiff must establish malice. Alabama & V. R. Co. v. Brooks, 69 Miss. 168, 13 So. 847, 1891 Miss. LEXIS 172 (Miss. 1891).

The immunity of a witness, in a judicial proceeding, from liability for slander is not affected by the statute. Verner v. Verner, 64 Miss. 321, 1 So. 479, 1886 Miss. LEXIS 66 (Miss. 1886).

It is not necessary that the words be spoken to, or in the presence of, the plaintiff. Scott v. Peebles, 10 Miss. 546, 1844 Miss. LEXIS 177 (Miss. 1844); Warren v. Norman, 1 Miss. 387, 1831 Miss. LEXIS 1 (Miss. 1831).

2. Truth as defense.

Truth is complete defense to action for libel. McCullough v. Cook, 679 So. 2d 627, 1996 Miss. LEXIS 434 (Miss. 1996).

The truth of the slanderous words spoken constitutes no defense, and can only go to the jury in mitigation of damages. McLean v. Warring, 13 So. 236 (Miss. 1893).

The truth of the words spoken is no defense; but their truth or falsity is an important consideration for a jury in estimating the damages. Crawford v. Mellton, 20 Miss. 328, 1849 Miss. LEXIS 39 (Miss. 1849); Jefferson v. Bates, 152 Miss. 128, 118 So. 717, 1928 Miss. LEXIS 225 (Miss. 1928).

3. Words uttered or written by agent.

A plaintiff failed to state a cause of action against a corporate employer for violation of Mississippi’s actionable words statute (§95-1-1) stemming from an incident in which he was cursed by a managerial employee in the presence of a supervisor, since a corporate employer cannot be held liable under the statute for the words of its employee, and there was no indication that the offending employee’s words were spoken at the command of the employer. Lawson v. Heidelberg E., 872 F. Supp. 335, 1995 U.S. Dist. LEXIS 212 (N.D. Miss.), aff'd, 70 F.3d 1269, 1995 U.S. App. LEXIS 34896 (5th Cir. Miss. 1995).

But corporation in common-law action was held liable for slanderous words of agent in scope of employment without ratification. Doherty v. L. B. Price Mercantile Co., 132 Miss. 39, 95 So. 790, 1923 Miss. LEXIS 20 (Miss. 1923).

Corporation not liable under this statute [Code 1942, § 1059]. Neely v. Payne, 126 Miss. 854, 89 So. 669, 1921 Miss. LEXIS 85 (Miss. 1921).

Principal not liable under this statute [Code 1942, § 1059] for words of agent. Dixie Fire Ins. Co. v. Betty, 101 Miss. 880, 58 So. 705, 1912 Miss. LEXIS 21 (Miss. 1912).

Railroad company liable where superintendent wrote libelous letter to plaintiff’s attorney in reply to claim for damages, where malice or lack of honest belief in truth of statements is shown. Alabama & V. R. Co. v. Brooks, 69 Miss. 168, 13 So. 847, 1891 Miss. LEXIS 172 (Miss. 1891).

Express company not liable for libelous letter written by acting agent upon whom there was no duty to answer correspondence and who acted as a mere volunteer. Southern Express Co. v. Fitzner, 59 Miss. 581, 1882 Miss. LEXIS 166 (Miss. 1882).

4. When publication complete.

If words are spoken only to the complaining party or to his agents, representing him in the matter discussed and invited by him, it is not such a publication as will support an action for slander and this includes one who is interceding for the employee as his authorized agent or representative. Kirk Jewelers, Inc. v. Bynum, 222 Miss. 134, 75 So. 2d 463, 1954 Miss. LEXIS 630 (Miss. 1954).

Right of action for libel against newspaper accrued as soon as paper containing alleged libelous matter was exhibited to third persons. Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So. 2d 344, 1943 Miss. LEXIS 132 (Miss. 1943).

A cause of action for libel against a newspaper accrues where the paper is first published. Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So. 2d 344, 1943 Miss. LEXIS 132 (Miss. 1943).

In libel action against newspaper, having its place of business in Hinds county, cause of action accrued in Hinds county where alleged libelous matter was first published and circulated, and the fact that the alleged libel was also circulated in Sunflower county through a local distributor, did not establish a new and separate cause of action in Sunflower county. Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So. 2d 344, 1943 Miss. LEXIS 132 (Miss. 1943).

The mere dictation of a libelous letter to a stenographer in an office of a corporation is not a publication thereof where the stenographer does not repeat it. Cartwright-Caps Co. v. Fischel & Kaufman, 113 Miss. 359, 74 So. 278, 1917 Miss. LEXIS 109 (Miss. 1917).

Libelous matter contained in a letter written and mailed in this state to an addressee in another state is not published until the letter is received and read. McCarlie v. Atkinson, 77 Miss. 594, 27 So. 641, 1900 Miss. LEXIS 27 (Miss. 1900).

Publication is complete where defamatory letter exceeding privilege of occasion is received and read by attorneys. McCarlie v. Atkinson, 77 Miss. 594, 27 So. 641, 1900 Miss. LEXIS 27 (Miss. 1900).

5. Actionable words, in general.

Even if subject statements were false, plaintiff in order to prevail in defamation action must establish that words employed were clearly directed toward plaintiff, and defamation must be clear and unmistakable from words themselves and not product of innuendo, speculation, or conjecture. McCullough v. Cook, 679 So. 2d 627, 1996 Miss. LEXIS 434 (Miss. 1996).

A statement made by an attorney, who was prosecuting a libel action, regarding the defendants in that action was not actionable where the attorney stated, “Whatever defense they are using, a defense they are not using is that the statements they made were true”; sharp commentary is not actionable libel. Lawrence v. Evans, 573 So. 2d 695, 1990 Miss. LEXIS 819 (Miss. 1990).

A former college employee’s allegations regarding the college president’s charges of incompetence, if made with malice as the employee alleged, could serve as a basis for a defamation action. Holland v. Kennedy, 548 So. 2d 982, 1989 Miss. LEXIS 411 (Miss. 1989).

Name calling and verbal abuse are to be taken as statements of opinion, not fact, and therefore will not give rise to an action for libel. Johnson v. Delta-Democrat Pub. Co., 531 So. 2d 811, 1988 Miss. LEXIS 486 (Miss. 1988).

Even assuming that words uttered were actionable by reason of context in which they were uttered, person claiming damage as result of slander must allege and prove special damages, and such special damages must be charged with particularity; person alleging slander had no case where he did not in any manner suggest any damages of pecuniary character caused by alleged slander, and had wholly failed to make any substantial showing of injury to reputation. Baugh v. Baugh, 512 So. 2d 1283, 1987 Miss. LEXIS 2813 (Miss. 1987), limited, Speed v. Scott, 787 So. 2d 626, 2001 Miss. LEXIS 111 (Miss. 2001).

Words not within the contemplation of the statute do not become actionable because prompted by anger. Salvo v. Edens, 237 Miss. 734, 116 So. 2d 220, 1959 Miss. LEXIS 526 (Miss. 1959).

The following words in a dentist’s letter to a woman who had not paid his bill and who had rejected a denture made by him: “Had I also known that you and your husband had no aversion to your running around toothless and thereby losing permanently your, until now, somewhat pleasant facial contours, I should never have suggested immediate denture service”, were held not actionable under this statute [Code 1942, § 1059], in Salvo v. Edens, 237 Miss. 734, 116 So. 2d 220, 1959 Miss. LEXIS 526 (Miss. 1959).

A letter from a general agent of an insurance company advising the local agent that in view of the credit report on a named insured it would be necessary to cancel the insurance policy issued upon insured’s business was not libelous, and, even if it was, it would have been qualifiedly privileged. Miley v. Foster, 229 Miss. 106, 90 So. 2d 172, 1956 Miss. LEXIS 591 (Miss. 1956).

While the imputation of a crime needs no innuendo to sustain its status as presumably libelous, its publication in the former category is not absolutely and of necessity defamatory but the particular statements must be adjudged in the light of the particular business. Sheffield v. Journal Pub. Co., 211 Miss. 294, 51 So. 2d 479, 1951 Miss. LEXIS 355 (Miss. 1951).

In slander action by sales clerk against store and its assistant manager, predicated upon the accusation by the assistant manager that plaintiff and two other sales clerks trifled with the store’s money with ill intentions, the fact that the accuser may not have carried out his threat to inform any prospective employer concerning such sales clerks was immaterial, the question being how the hearers who were present at the time the accusations were made could have reasonably understood them as reflecting in a defamatory manner upon all of them. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

Notice to the public made by mortgagee in good faith correcting advertised foreclosure of trust deed by pointing out that certain land not owned by the mortgagor should not have been included in the deed of trust or notice of sale, stating that further publication of the notice of sale had been stopped in order to eliminate such land, was not libelous. Barcroft v. Armstrong, 198 Miss. 565, 21 So. 2d 817, 1945 Miss. LEXIS 230 (Miss. 1945).

Declaration against hotel corporation and its manager to recover damages for conduct of manager in cursing, and abusing plaintiff and threatening him with violence and ejection from hotel, held to state cause of action for breach of duty arising from the relationship of innkeeper and guest rather than cause of action under actionable words statute, which would have precluded recovery against corporate defendants, notwithstanding that the words set forth in the declaration were manifestly both insulting and calculated to lead to a breach of the peace. Milner Hotels, Inc. v. Dougherty, 195 Miss. 718, 15 So. 2d 358, 1943 Miss. LEXIS 146 (Miss. 1943).

The prohibition contained in this section [Code 1942, § 1059] against sustaining a plea, exception or demurrer in a case stated thereunder, so as to preclude a jury from passing on the facts complained of, has no application to a corporate defendant. Milner Hotels, Inc. v. Dougherty, 195 Miss. 718, 15 So. 2d 358, 1943 Miss. LEXIS 146 (Miss. 1943).

A liberal construction of the statute requires that the words spoken of another must be insulting from their usual construction and acceptation and must be calculated to lead to a breach of the peace. Huckabee v. Nash, 182 Miss. 754, 183 So. 500, 1938 Miss. LEXIS 203 (Miss. 1938).

A defendant calling the plaintiff a son-of-a-bitch is not liable under the statute where such words were provoked by plaintiff using the same words with reference to defendant, and an instruction to that effect is not erroneous. Huckabee v. Nash, 182 Miss. 754, 183 So. 500, 1938 Miss. LEXIS 203 (Miss. 1938).

Where defendant had rented house to plaintiff and plaintiff took possession of another house, defendant’s words that plaintiff used skeleton key to enter house, held not actionable where evidence disclosed mutual mistake as to which house was rented. Cooper v. Davidson, 172 Miss. 74, 157 So. 418, 1935 Miss. LEXIS 92 (Miss. 1935).

Charge in writing by railroad company that station agent overcollected from patrons and took liberties with company’s funds, if false, was actionable. Tribble v. Yazoo & M. V. R. Co., 103 Miss. 1, 60 So. 2, 1912 Miss. LEXIS 134 (Miss. 1912).

Not slander where defendant, an election officer, told plaintiff he was a convict and could not vote. Dedeaux v. King, 92 Miss. 38, 45 So. 466, 1907 Miss. LEXIS 1 (Miss. 1907).

However, it was not libelous for insurance company to publish statement that rival company may have settled certain losses before it, but did not pay them first, and that latest accounts were that money for payment of rival company’s losses had not shown up, adding: “moral: Insure in this company. Losses paid promptly, not settled.” P. L. Hennessey & Co. v. Traders' Ins. Co., 87 Miss. 259, 39 So. 692, 1905 Miss. LEXIS 132 (Miss. 1905).

Where defendant on denial by plaintiff that stolen cotton had been traced to his barn, stated that “people could lie” an action for slander is maintainable. Wiseman v. Parker, 73 Miss. 378, 19 So. 102, 1895 Miss. LEXIS 133 (Miss. 1895).

When, in action for slander, the slanderous words alleged are not in foreign or technical language, and not ambiguous nor uttered in fable, question or enigma or the like, but are such plain, ordinary words as are in common use, an instruction to the jury that unless the words used were understood by the hearers to have been uttered in a malicious or slanderous sense they must find for the defendant, is erroneous. In such case, it is the judgment of the jury, and not the opinion of the hearers of the words, that must determine whether they were slanderous or not. Jarnigan v. Fleming, 43 Miss. 710, 1870 Miss. LEXIS 77 (Miss. 1870).

Words “Plaintiff swore to a lie” spoken of his testimony before a justice of peace, are actionable. Lewis v. Black, 27 Miss. 425, 1854 Miss. LEXIS 73 (Miss. 1854).

The gravamen of the statute is the speaking of the words, whether true or false, in an insulting manner. Crawford v. Mellton, 20 Miss. 328, 1849 Miss. LEXIS 39 (Miss. 1849).

The words, “Crawford swore a lie, and I can prove it,” are actionable words under the statute. Crawford v. Mellton, 20 Miss. 328, 1849 Miss. LEXIS 39 (Miss. 1849).

Only two things are necessary to bring words spoken of another within the statute, viz.: First, they must be insulting; and, second, they must be calculated to lead to a breach of the peace. Crawford v. Mellton, 20 Miss. 328, 1849 Miss. LEXIS 39 (Miss. 1849); Scott v. Peebles, 10 Miss. 546, 1844 Miss. LEXIS 177 (Miss. 1844).

Abusive and insulting words not actionable at common law unless special damages alleged in declaration and proven; such words actionable under statute. Cock v. Weatherby, 13 Miss. 333, 1845 Miss. LEXIS 77 (Miss. 1845); Davis v. Farrington, 1 Miss. 304, 1827 Miss. LEXIS 20 (Miss. 1827).

Everything written of another subjecting him to scorn and ridicule and calculated to cause breach of peace is libel. Torrance v. Hurst, 1 Miss. 403, 1831 Miss. LEXIS 6 (Miss. 1831).

6. —Words actionable per se.

Veteran’s claim of slander per se was properly dismissed by the trial court, as labeling him as a thief and a dishonest person was an insult that might have lead to a breach of the peace under Miss. Code Ann. §95-1-1, but it did not relieve the veteran of his obligation to prove special damages. Cook v. Wallot, 172 So.3d 788, 2013 Miss. App. LEXIS 245 (Miss. Ct. App. 2013).

Mere statements by former daughter-in-law that she had never known former father-in-law to wear neck brace and that she did not know he was disabled did not constitute words that would be slanderous per se, because words in question did not generate clear and unmistakable accusation that former father-in-law had been guilty of fraud in obtaining Social Security disability benefits, nor did words impute crime. Baugh v. Baugh, 512 So. 2d 1283, 1987 Miss. LEXIS 2813 (Miss. 1987), limited, Speed v. Scott, 787 So. 2d 626, 2001 Miss. LEXIS 111 (Miss. 2001).

Generally to orally call a white person a Negro is not actionable per se, but it may be actionable in certain sections of the country under the social habits and customs prevailing in those sections. Natchez Times Pub. Co. v. Dunigan, 221 Miss. 320, 72 So. 2d 681, 1954 Miss. LEXIS 541 (Miss. 1954).

Words which accuse a person of being a thief are actionable per se. Lemonis v. Hogue, 213 Miss. 775, 57 So. 2d 865, 1952 Miss. LEXIS 424 (Miss. 1952).

Where a newspaper story stated that the plaintiff was a two-gun man who is alleged to have threatened to shoot himself, members of family and the whole neighborhood, that story did not charge the plaintiff with a crime; therefore actual damages must be shown. Sheffield v. Journal Pub. Co., 211 Miss. 294, 51 So. 2d 479, 1951 Miss. LEXIS 355 (Miss. 1951).

Language of printed statement by trustees of public school regarding lumber dealer, and descending from defense into abuse, held actionable per se, at common law. Hodges v. Cunningham, 160 Miss. 576, 135 So. 215, 1931 Miss. LEXIS 226 (Miss. 1931).

Defendant’s good faith statement he had mortgage on automobile plaintiff traded held not actionable per se though plaintiff, grantor, had trust deed. Winton v. Patterson, 152 Miss. 158, 119 So. 161, 1928 Miss. LEXIS 239 (Miss. 1928).

Words to effect that plaintiff set fire to and burned his house are actionable per se. Jefferson v. Bates, 152 Miss. 128, 118 So. 717, 1928 Miss. LEXIS 225 (Miss. 1928).

Law imputes intention to damage the other party by speaking of words that are slanderous per se. Jefferson v. Bates, 152 Miss. 128, 118 So. 717, 1928 Miss. LEXIS 225 (Miss. 1928).

Language clearly imputing embezzlement, actionable per se; damage implied from spoken words slanderous per se. Doherty v. L. B. Price Mercantile Co., 132 Miss. 39, 95 So. 790, 1923 Miss. LEXIS 20 (Miss. 1923).

But statement in letter not injuring reputation, exposing to public hatred, degrading or imputing that person is unworthy of credit not libelous per se. Heralds of Liberty v. Rankin, 130 Miss. 698, 94 So. 849, 1922 Miss. LEXIS 242 (Miss. 1923).

Words falsely charging one with commission of crime are actionable per se only where such charge if true would subject him to punishment for a crime involving moral turpitude, or one infamous in character, or one which if not necessarily infamous would bring disgrace upon him. Woodville v. Pizatti, 119 Miss. 85, 80 So. 491, 1918 Miss. LEXIS 14 (Miss. 1918).

Slanderous per se to say that member of legislature received money for voting an appropriation. Nabors v. Mathis, 115 Miss. 564, 76 So. 549, 1917 Miss. LEXIS 234 (Miss. 1917).

Where insurance company issued circular letter to its agents, not referring to plaintiff by name, but referring to him as a hard drinker, a habitual carrier of firearms, reputed to have killed two men, and stating that he had lost a foot when insured and had recently shot off the other for which he was making claim, such language did not constitute libel per se, in view of plaintiff’s substantial admission of such facts, and the statement as to his claim for a lost foot was consistent with accidental shooting. Holliday v. Maryland Casualty Co., 115 Miss. 56, 75 So. 764, 1917 Miss. LEXIS 184 (Miss. 1917).

Accusing one of being thief, actionable per se. Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 252, 1917 Miss. LEXIS 49 (Miss. 1917).

An instance where a statement concerning plaintiff’s use of money advanced under contract to deliver staves, was not libelous per se. Lucas E. Moore Stave Co. v. Wells, 111 Miss. 796, 72 So. 228, 1916 Miss. LEXIS 397 (Miss. 1916).

Letter stating that another was in fact dishonest, without brains, undiplomatic, and not optimistic, and comparing his actions with those of a hog which muddies the stream was defamatory and libelous per se. Hines v. Shumaker, 97 Miss. 669, 52 So. 705, 1910 Miss. LEXIS 269 (Miss. 1910).

A clearance paper given a discharged employee, reciting: “Cause for leaving service, unsatisfactory service, conduct good,” is not libelous per se. Illinois C. R. Co. v. Ely, 83 Miss. 519, 35 So. 873, 1903 Miss. LEXIS 73 (Miss. 1904).

To charge the defendant with having poisoned the plaintiff is actionable per se. Furr v. Speed, 74 Miss. 423, 21 So. 562, 1896 Miss. LEXIS 181 (Miss. 1896).

Both intention to injure and to damage are implied by law from the speaking of words that are slanderous per se. Furr v. Speed, 74 Miss. 423, 21 So. 562, 1896 Miss. LEXIS 181 (Miss. 1896).

7. Privileged communication.

An absolutely privileged communication is one made in the interest of the public service or the due administration of justice, and in practical effect is limited to legislative, judicial or military proceedings. Krebs v. McNeal, 222 Miss. 560, 76 So. 2d 693, 1955 Miss. LEXIS 639 (Miss. 1955).

An officer of the law has no absolute privilege for any and all comments which he makes. Krebs v. McNeal, 222 Miss. 560, 76 So. 2d 693, 1955 Miss. LEXIS 639 (Miss. 1955).

Statement by assisting manager of store that plaintiff and two others trifled with store’s money with ill intent was not privileged under State Unemployment Compensation Act providing that communications in connection with requirements and administration of act shall be privileged as alleged accusations were not made in connection with requirements or administration of that act. Montgomery Ward & Co. v. Harland, 205 Miss. 380, 38 So. 2d 771, 1949 Miss. LEXIS 436 (Miss. 1949).

Matter published in a judicial proceeding is absolutely privileged. Gunter v. Reeves, 198 Miss. 31, 21 So. 2d 468, 1945 Miss. LEXIS 166 (Miss. 1945).

Allegations made in affidavit for search warrant, in absence of showing taking allegation out of general rule, is absolutely privileged as matter published in a judicial proceeding. Gunter v. Reeves, 198 Miss. 31, 21 So. 2d 468, 1945 Miss. LEXIS 166 (Miss. 1945).

Absolutely privileged communication is one made in interest of public service or administration of justice and is practically limited to legislative and judicial proceedings and other actions of state. Grantham v. Wilkes, 135 Miss. 777, 100 So. 673, 1924 Miss. LEXIS 81 (Miss. 1924).

Defendant’s statement that plaintiff admitted theft not privileged because made to brother of other alleged thief. Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 252, 1917 Miss. LEXIS 49 (Miss. 1917).

Letter from defendant corporation sent under seal and for plaintiff’s inspection alone, relating to business transaction between them and urging payment for machinery, was privileged and not actionable libel. Cartwright-Caps Co. v. Fischel & Kaufman, 113 Miss. 359, 74 So. 278, 1917 Miss. LEXIS 109 (Miss. 1917).

Statement of defendant to fraternal organization attempting to settle difference between himself and plaintiff, that plaintiff had been guilty of perjury, not made in rebuttal of charges against defendant, is not privileged. Pate v. Trollinger, 113 Miss. 255, 74 So. 131, 1916 Miss. LEXIS 35 (Miss. 1916).

The scope of the defamatory matter, in order to be excusable on the ground of privileged communication, must not exceed exigency of privileged occasion. Hines v. Shumaker, 97 Miss. 669, 52 So. 705, 1910 Miss. LEXIS 269 (Miss. 1910).

Statements casually made to officers, not for the public good, which were also made to other persons, are not privileged communications. Bigner v. Hodges, 82 Miss. 215, 33 So. 980, 1903 Miss. LEXIS 130 (Miss. 1903).

Where occasion privileged, plaintiff must establish malice. Alabama & V. R. Co. v. Brooks, 69 Miss. 168, 13 So. 847, 1891 Miss. LEXIS 172 (Miss. 1891).

8. Qualified privilege.

In a suit to recover for the alleged libel of the plaintiff in a credit report, where there was nothing before the court to dispute the defendant’s contention that this report was made in good faith in the ordinary and everyday course of its business in answer to a request from a client for a credit report on the plaintiff, and nothing in the report suggested malice or anything more than the reporting of what was found from informants to be the facts about which a questionnaire related, the report enjoyed a qualified privilege and it was immaterial whether its contents were libelous per se or libelous per quod. Wilson v. Retail Credit Co., 438 F.2d 1043, 1971 U.S. App. LEXIS 11984 (5th Cir. Miss. 1971).

A credit report furnished in good faith, and without malice, by a reporting agency to one entitled to receive the same is entitled to qualified privilege, even though it contains erroneous information. Wilson v. Retail Credit Co., 325 F. Supp. 460, 1971 U.S. Dist. LEXIS 14248 (S.D. Miss. 1971), aff'd, 457 F.2d 1406, 1972 U.S. App. LEXIS 10066 (5th Cir. Miss. 1972).

Where government employees gave allegedly defamatory oral and written statements to an Air Force officer in the course of his investigation of the manager of the Exchange Services Store at an air base, they were afforded the protection of the doctrine of governmental immunity. Houtenville v. Dunahoo, 286 F. Supp. 5, 1968 U.S. Dist. LEXIS 9083 (N.D. Miss. 1968).

Statements made by a university dean when recommending against a professor’s tenure were protected by a qualified governmental immunity where there was no publication outside the circle of persons having an intimate and direct interest in the tenure proceedings and there was no showing that the dean acted with malice. Staheli v. Smith, 548 So. 2d 1299, 1989 Miss. LEXIS 410 (Miss. 1989), limited, Raddin v. Manchester Educ. Found., 175 So.3d 1243, 2015 Miss. LEXIS 507 (Miss. 2015).

Evidence in a slander suit by a highway patrolman against a person whom he had arrested for public drunkenness, and who had thereafter telephoned law enforcement agencies, including the patrolman’s superiors, repeatedly calling the patrolman a “heathen son of a bitch” and charging that the patrolman had taken $2,100 out of such person’s pocket, supported a finding that, if the occasion when the statements were made was conditionally privileged as a communication with the proper law enforcement officials to inquire of property lost or stolen, such conditional privilege was abused in that such statements charging the patrolman with being a thief were false and made out of ill will and spite and in bad faith. Ralston Purina Co. v. Colton, 262 So. 2d 414, 1972 Miss. LEXIS 1313 (Miss. 1972).

In a libel action, the evidence was insufficient to establish malice on the part of the defendant newspaper publisher in publishing a photograph of articles taken from the automobile of a person arrested on a charge of bank robbery, which articles included explosives and weapons along with a campaign poster of the plaintiff who had run for public office and been actively engaged in politics in Mississippi, and was admittedly known throughout the state. Perkins v. Mississippi Publishers Corp., 241 So. 2d 139, 1970 Miss. LEXIS 1320 (Miss. 1970).

A plaintiff who had been prominently engaged in state politics for a good many years and had been a candidate and had conducted political campaigns for several public offices over a twenty-year period, was, at the time of the publication of an allegedly libelous photograph, a “public figure” notwithstanding the fact that his latest political campaign ended several weeks before publication of the libel. Perkins v. Mississippi Publishers Corp., 241 So. 2d 139, 1970 Miss. LEXIS 1320 (Miss. 1970).

Where the declaration showed that plaintiff occupied a prominent quasi-public position and that the editorial in question was a criticism of the assertions of plaintiff in regard to matters of public interest, and it was not alleged that there was any falsity in the statements of fact on which the writer therein based his criticisms, only that the editorial contained false and libelous words concerning plaintiff, the state of the pleadings on its face showed that the occasion was conditionally privileged, and the editorial was not actionable since the privilege had not been abused. Edmonds v. Delta Democrat Publishing Co., 230 Miss. 583, 93 So. 2d 171, 1957 Miss. LEXIS 401 (Miss. 1957).

A letter from a general agent of an insurance company advising the local agent that in view of the credit report on a named insured it would be necessary to cancel the insurance policy issued upon insured’s business was not libelous, and, even if it was, it would have been qualifiedly privileged. Miley v. Foster, 229 Miss. 106, 90 So. 2d 172, 1956 Miss. LEXIS 591 (Miss. 1956).

In a libel action by a sheriff against a newspaper on the ground that the article stated that the sheriff had shot a person without justification whereas a deputy had fired the shot, the article was not libelous because the sheriff and deputy were acting in concert and had committed an illegal assault on a person just before the shooting so that the article was substantially correct. Smith v. Byrd, 225 Miss. 331, 83 So. 2d 172, 1955 Miss. LEXIS 588 (Miss. 1955).

The law guards jealously the right to the enjoyment of a good reputation, but public policy, good morals, the interests of society, and sound business demand that an employer, or his representative, be permitted to discuss freely with an employee, or his chosen representative, charges made against the employee affecting the latter’s employment and on such occasion there is a qualified privilege and statements made within the scope of the privilege, in good faith and without malice, are not actionable. Killebrew v. Jackson City Lines, Inc., 225 Miss. 84, 82 So. 2d 648, 1955 Miss. LEXIS 562 (Miss. 1955).

One is privileged to publish the actual facts as to the commission of a crime and the facts as to the arrest and charges made against a person suspected of the crime provided the statement does not go further than a mere report of the news by making charges, directly or by inference, insinuation, or assumption that the person arrested is guilty of the crime and if the account does not go beyond a mere narration of the transaction recounted and makes injurious reflections on the private or business character of a party to the transaction it is actionable if untrue. Krebs v. McNeal, 222 Miss. 560, 76 So. 2d 693, 1955 Miss. LEXIS 639 (Miss. 1955).

It is a fundamental requisite that one claiming the benefit of qualified privilege must believe in good faith that the defamatory matter is true. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

The existence of the privilege does not license the speaker to introduce irrelevant defamatory matter beyond the exigencies of the occasion. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

While the fact that alleged slanderous words may have been uttered in the presence and hearing of other persons who were accidentally present and to whom the remarks were not addressed will not overthrow the qualifiedly privileged nature of the communication, the fact that slanderous charges are made in the presence and hearing of others not interested in the investigation, is not an immaterial circumstance where the privilege is exceeded and the one claiming the benefit of the privilege is acting in bad faith, without probable cause, and from anger and displayed malice, in wilful and wanton disregard of the rights of the person to whom the slanderous charges are addressed. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

In action by sales clerk against store and its assistant manager to recover damages for slanderous remarks, the entire context of what the assistant manager said to the plaintiff and two other sales clerks must be considered in determining whether the defendants acted in wilful and wanton disregard of the rights of the plaintiff. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

In slander action by sales clerk against store and its assistant manager, the fact that a friendly relation had previously existed between the parties who were interested in the investigation with regard to misplacement of store’s money is a circumstance to disprove malice, but such fact is not controlling. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

In suit by sales clerk against store and its assistant manager to recover damages for slander, privilege in the conduct of an investigation to determine who was responsible for negligent or careless misplacement of store’s money was exceeded by accusation of hiding store’s money with ill intent and warranted jury finding that the accusation in its slanderous aspects was not made in good faith and on probable cause for suspecting anyone of having trifled with the store’s money with ill intentions. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

Qualifiedly privileged communication is one made in good faith to person having interest in subject matter or about which he has a duty to a person having a corresponding interest or duty. Grantham v. Wilkes, 135 Miss. 777, 100 So. 673, 1924 Miss. LEXIS 81 (Miss. 1924).

Under § 124 of the Const. an applicant for pardon does not have to sign his petition, and a person signing such petition is exercising a qualfied privilege. Grantham v. Wilkes, 135 Miss. 777, 100 So. 673, 1924 Miss. LEXIS 81 (Miss. 1924).

A circular letter by an insurance company to its agents concerning reputation of insured and matters pertaining to the risk, not libelous per se, constituted a qualified privileged communication. Holliday v. Maryland Casualty Co., 115 Miss. 56, 75 So. 764, 1917 Miss. LEXIS 184 (Miss. 1917).

Examination by Masonic Lodge Committee investigating charges against member is an occasion of qualified privilege. Jones v. Edwards, 57 Miss. 28, 1879 Miss. LEXIS 6 (Miss. 1879); Fritz v. Williams, 16 So. 359 (Miss. 1894).

9. Damages.

Punitive damages are not recoverable in an action for libel or slander per quad where no actual damages are shown. Barton v. Barnett, 226 F. Supp. 375, 1964 U.S. Dist. LEXIS 6419 (N.D. Miss. 1964).

In a suit based upon actionable word statute where defendant called plaintiff a crook, an instruction advising the jury that they were not authorized to award damages for injury to plaintiff’s reputation in the community, was proper since plaintiff sought only exemplary damages. Wells v. Branscome, 222 Miss. 1, 74 So. 2d 743, 1954 Miss. LEXIS 609 (Miss. 1954).

In slander action by sales clerk against store and assistant manager, testimony showing personal reactions of plaintiff to accusations, loss incident to discharge, and humiliation incident to her own republication of charges, could influence jury only in arriving at amount of damages, and if introduction is erroneously permitted, remittitur reducing judgment from $15,000 to $7,500 will cure any harm done by testimony in regard to measure of damages. Montgomery Ward & Co. v. Harland, 205 Miss. 380, 38 So. 2d 771, 1949 Miss. LEXIS 436 (Miss. 1949).

While instruction in suit by sales clerk against store and assistant manager to recover damages for slanderous remarks, that the jury could not award her any damages whatever on account of her discharge was proper in view of the fact that she was not employed for a fixed term, plaintiff was entitled to show that she was in fact damaged in her reputation by what had transpired, as represented by evidence that she was unable to obtain or retain employment thereafter by reason thereof. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

In action on note, defendant held not entitled to recoup amount of damages arising from use of actionable words by plaintiff because of defendant’s failure to pay note, since plea of recoupment was an independent tort. Calhoun v. McNair, 175 Miss. 44, 166 So. 330, 1936 Miss. LEXIS 9 (Miss. 1936).

$500 damages to man under 21 years of age, denounced as thief and liar, held not excessive. Landrum v. Ellington, 152 Miss. 569, 120 So. 444, 1929 Miss. LEXIS 223 (Miss. 1929).

Jury, within reasonable bounds, sole judge of damage sustained. Landrum v. Ellington, 152 Miss. 569, 120 So. 444, 1929 Miss. LEXIS 223 (Miss. 1929).

Where words were actionable per se plaintiff was entitled to exemplary damages and it was unnecessary to show special damages. Jefferson v. Bates, 152 Miss. 128, 118 So. 717, 1928 Miss. LEXIS 225 (Miss. 1928).

Plaintiff in malicious libel, entitled to punitive damages as the jury might assess, without showing actual damages. Hubbard v. Rutledge, 52 Miss. 581, 1876 Miss. LEXIS 259 (Miss. 1876).

10. —Mitigation.

In an action for slander against an insurance company after plaintiff had recovered on policy, evidence that recovery had been contested on the ground of fraudulent representations, admissible in mitigation of damages. National Life & Acci. Ins. Co. v. De Vance, 110 Miss. 196, 70 So. 83, 1915 Miss. LEXIS 23 (Miss. 1915).

Apology admissible in mitigation of damages but not as bar. Dixie Fire Ins. Co. v. Betty, 101 Miss. 880, 58 So. 705, 1912 Miss. LEXIS 21 (Miss. 1912).

The truth of the slanderous words spoken constitutes no defense, and can only go to the jury in mitigation of damages. McLean v. Warring, 13 So. 236 (Miss. 1893).

Sudden heat of passion is circumstance mitigating damages. Powers v. Presgroves, 38 Miss. 227, 1859 Miss. LEXIS 110 (Miss. 1859).

The truth or falsity of words is an important consideration for a jury in estimating the damages. Crawford v. Mellton, 20 Miss. 328, 1849 Miss. LEXIS 39 (Miss. 1849); Jefferson v. Bates, 152 Miss. 128, 118 So. 717, 1928 Miss. LEXIS 225 (Miss. 1928).

11. Judicial proceedings.

Statement by attorney for plaintiff in argument to jury that plaintiff had read to jury testimony given on former trial by absent witness in response to plaintiff’s questions but that defendant did not read testimony of witness given in response to questions asked on behalf of defendant, to which objection was overruled, was not reversible error. Montgomery Ward & Co. v. Harland, 205 Miss. 380, 38 So. 2d 771, 1949 Miss. LEXIS 436 (Miss. 1949).

Whether alleged libelous words are calculated to lead to breach of peace is question for jury. Hodges v. Cunningham, 160 Miss. 576, 135 So. 215, 1931 Miss. LEXIS 226 (Miss. 1931).

Jury passes on both amount of damages and on whether or not words were actionable. Davis v. Woods, 95 Miss. 432, 48 So. 961, 1909 Miss. LEXIS 249 (Miss. 1909).

When, in action for slander, the slanderous words alleged are not in foreign or technical language, and not ambiguous nor uttered in fable, question or enigma or the like, but are such plain, ordinary words as are in common use, an instruction to the jury that unless the words used were understood by the hearers to have been uttered in a malicious or slanderous sense they must find for the defendant, is erroneous. In such case, it is the judgment of the jury, and not the opinion of the hearers of the words, that must determine whether they were slanderous or not. Jarnigan v. Fleming, 43 Miss. 710, 1870 Miss. LEXIS 77 (Miss. 1870).

12. —Pleadings.

Where plaintiff’s declaration seeking damages for libel is based primarily on common law rights and the Mississippi actionable words statute, the fact that it also alleges as an element of damages that he was deprived of his rights under the United States Constitution is not sufficient to confer jurisdiction upon the federal courts and a motion to remand was sustained. Walker v. Savell, 243 F. Supp. 478, 1965 U.S. Dist. LEXIS 7387 (N.D. Miss. 1965).

Sufficient in slander to allege words or synonymous words constituting same. Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 252, 1917 Miss. LEXIS 49 (Miss. 1917).

Declaration setting out words used and alleging that from their usual construction and common acceptance they are considered insulting and calculated to lead to violence and breach of peace, and were spoken contrary to statute, held good on demurrer. Davis v. Woods, 95 Miss. 432, 48 So. 961, 1909 Miss. LEXIS 249 (Miss. 1909).

A bill of particulars in an action for slander which gives the actionable words, the time, place, and the names of the persons to whom they were spoken, is sufficient. McLean v. Warring, 13 So. 236 (Miss. 1893).

A declaration which avers that defendant spoke the works “contrary to the statute, with a view to insult the plaintiff, and to lead him to commit violence and breach of the peace,” brings the case within the statute. Scott v. Peebles, 10 Miss. 546, 1844 Miss. LEXIS 177 (Miss. 1844).

A declaration in an action under the statute is insufficient if it does not show that the action is based on the statute and is within its purview. Scott v. Peebles, 10 Miss. 546, 1844 Miss. LEXIS 177 (Miss. 1844); Warren v. Norman, 1 Miss. 387, 1831 Miss. LEXIS 1 (Miss. 1831); Davis v. Farrington, 1 Miss. 304, 1827 Miss. LEXIS 20 (Miss. 1827).

13. —Evidence.

Youth court records of a juvenile’s adjudication of delinquency arising from a shoplifting incident were admissible into evidence in the juvenile’s slander suit against a store employee arising from the same incident, since the truth is a total defense to a slander suit; the juvenile’s action of initiating the slander suit “lifted the veil of confidentiality” of the youth court proceedings, thereby exposing him to the “harsh realities of litigation.” Daniels by Glass v. Wal-Mart Stores, 634 So. 2d 88, 1993 Miss. LEXIS 564 (Miss. 1993), limited, Sample v. State, 643 So. 2d 524, 1994 Miss. LEXIS 466 (Miss. 1994), limited, Mask v. Elrod (In re Estate of Mask), 703 So. 2d 852, 1997 Miss. LEXIS 752 (Miss. 1997).

Where it was contended that a letter from a general agent of an insurance company advising the local agent that in view of a credit report it would be necessary to cancel insurance policies covering plaintiff’s business was libelous, it was not error to admit in evidence a credit report which formed the basis of the letter, since, if for no other reason, the report was admissible on the question of good faith and freedom from malice on the part of the writer of the letter. Miley v. Foster, 229 Miss. 106, 90 So. 2d 172, 1956 Miss. LEXIS 591 (Miss. 1956).

In a suit based upon the actionable words statute, to recover for statements made by the defendant that the plaintiff was a crook, testimony relative to the plaintiff’s general reputation for honesty and fair dealing was admissible in mitigation of damages. Wells v. Branscome, 222 Miss. 1, 74 So. 2d 743, 1954 Miss. LEXIS 609 (Miss. 1954).

In slander action by sales clerk against store and assistant manager, testimony by clerk that customers stopped, looked and listened, is sufficient proof that customers heard remarks complained of. Montgomery Ward & Co. v. Harland, 205 Miss. 380, 38 So. 2d 771, 1949 Miss. LEXIS 436 (Miss. 1949).

In slander suit by sales clerk against store and its assistant manager resulting from accusations by assistant manager that plaintiff and two others trifled with store’s money with ill intent, defendants are entitled to prove, on question of good faith, the information on which assistant manager acted in making accusations. Montgomery Ward & Co. v. Harland, 205 Miss. 380, 38 So. 2d 771, 1949 Miss. LEXIS 436 (Miss. 1949).

In an action against an employer and its assistant store manager for slander in charging plaintiff and two other employees with trifling with the employer’s money with ill intentions, the trial court erred in excluding testimony that the assistant store manager was acting in the premises in the light of information that the hidden check had been given to one of the three plaintiffs and not to one of the two remaining employees, since such testimony was pertinent to the issue of malice. Montgomery Ward & Co. v. Higgins, 201 Miss. 467, 29 So. 2d 267, 1947 Miss. LEXIS 407 (Miss. 1947).

While the plaintiff is limited in his right of recovery to the charge made in the declaration and which is admitted to have been proved in so far as testimony on behalf of plaintiff is concerned, it is competent for plaintiff to prove such additional facts and circumstances as will throw light on the question as to whether third persons present would reasonably understand that the speaker intended to reflect upon plaintiff. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

In slander action by sales clerk against store and its assistant manager, evidence that investigation with regard to misplacement of store’s money was considered by assistant manager as involving an act of carelessness warranted jury in believing that his statements accusing plaintiff and two other sales clerks with trifling with store’s money with ill intentions were made in wilful and wanton disregard of their rights, and in excess of any right that he had in investigating an act of mere carelessness. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

In slander suit by sales clerk against store and its assistant manager, wherein assistant manager, investigating misplacement of store’s money, accused plaintiff and others of trifling with the store’s money with ill intentions, there being no evidence that any of them were responsible for such misplacements, evidence warranted jury in imposing both actual and punitive damages. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

In assessing punitive damages in slander suit by sales clerk against store and its assistant manager for accusations exceeding defendant’s privilege in investigating misplacement of store’s money, jury could properly take into consideration evidence that defendant’s store had current assets worth more than $261,000,000 and that its earned surplus was nearly $110,000,000. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

In an action for slander against an insurance company after plaintiff had recovered on policy, evidence that recovery had been contested on the ground of fraudulent representations, admissible in mitigation of damages. National Life & Acci. Ins. Co. v. De Vance, 110 Miss. 196, 70 So. 83, 1915 Miss. LEXIS 23 (Miss. 1915).

Where the communication is upon a privileged occasion and is a privileged communication, the burden is upon the plaintiff to show actual malice in order to recover. But if the privilege of the communication is not conceded, and does not appear from the plaintiff’s testimony, the burden is then upon the defendant, who relies upon the privilege, to establish it. Hines v. Shumaker, 97 Miss. 669, 52 So. 705, 1910 Miss. LEXIS 269 (Miss. 1910).

An allegation in a declaration for slander that defendant “had butchered and sold his patrons a steer affected with a loathsome disease, and which at the time had a running sore or cancer on its leg,” is supported by testimony that “He had butchered and sold a steer which was unfit for use because it had a running sore on its leg.” Bigner v. Hodges, 82 Miss. 215, 33 So. 980, 1903 Miss. LEXIS 130 (Miss. 1903).

The exact words alleged to have been spoken, or synonymous words, must be proved. It is not sufficient to prove words conveying a similar idea. Jones v. Edwards, 57 Miss. 28, 1879 Miss. LEXIS 6 (Miss. 1879).

In libel suit, where defense was honest motive, held defendant might be questioned as to effect of plaintiff’s business in competition with his own. Hubbard v. Rutledge, 57 Miss. 7, 1879 Miss. LEXIS 2 (Miss. 1879).

Where manifest that word was used in its ordinary and popular meaning, court should so decide and exclude evidence of technical meaning. Rodgers v. Kline, 56 Miss. 808, 1879 Miss. LEXIS 219 (Miss. 1879).

First Amendment restrictions mandate that the plaintiff in a defamation action bear the burden of proving falsity. Burk v. Illinois C. G. R. Co., 529 So. 2d 515, 1988 La. App. LEXIS 1569 (La.App. 1 Cir.), cert. denied, 532 So. 2d 179, 1988 La. LEXIS 2528 (La. 1988).

14. —Jury questions.

When evidence on the question as to whether the defendant made the defamatory statements ascribed to him was in conflict, a question for the jury was clearly presented. Miley v. Foster, 229 Miss. 106, 90 So. 2d 172, 1956 Miss. LEXIS 591 (Miss. 1956).

Under the actionable words statute the jury are the sole judges of damages sustained, but the discretion vested in the jury must be reasonably exercised. Wells v. Branscome, 222 Miss. 1, 74 So. 2d 743, 1954 Miss. LEXIS 609 (Miss. 1954).

Where alleged slanderous language is unambiguous, it is to be construed in its ordinary sense, and without reference to how those to whom it was published understood it or what was intended by the publisher, the jury being the judges as to whether the words would reasonably be understood in a defamatory meaning. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

Where the evidence showed that defendant store’s assistant manager in a loud and angry voice and in the presence of store customers accused the plaintiff and two other sales clerks of hiding store money with ill intent and stated that they were all fired without a recommendation, question whether the plaintiff was individually slandered was for the jury to decide. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

In suit by sales clerk against store and its assistant manager to recover damages for slanderous remarks, the jury was entitled to consider defendants’ attitude in failing to tell one who is considering employing plaintiff that in so far as was known the plaintiff was all right and had a good record, as a circumstance to show whether they had acted wilfully and wantonly in discharging her for the reasons set forth in the slanderous utterances complained of, in view of the fact that there was no evidence to show that plaintiff was guilty of the accusations made with regard to trifling with or hiding the store’s money with ill intent. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

15. —Instructions.

In an action brought under the common-law slander, instructions which failed to state that the words spoken were “calculated to lead to a breach of peace,” were not erroneous as the words calculated to lead to a breach of the peace is required under the actionable word statute but not under common-law slander suit. Travis v. Hunt, 224 Miss. 193, 79 So. 2d 734, 1955 Miss. LEXIS 476 (Miss. 1955).

In a suit based upon actionable words statute to recover damages for plaintiff from defendant for calling the plaintiff a crook, peremptory instruction for the buyer on liability was proper. Wells v. Branscome, 222 Miss. 1, 74 So. 2d 743, 1954 Miss. LEXIS 609 (Miss. 1954).

An instruction to the jury that if they believe from the evidence that such damages as the plaintiff has suffered, were caused by his own actions and conduct or from any other source and not by the publication made by defendant, they must find for defendant, was proper. Sheffield v. Journal Pub. Co., 211 Miss. 294, 51 So. 2d 479, 1951 Miss. LEXIS 355 (Miss. 1951).

While instruction in suit by sales clerk against store and assistant manager to recover damages for slanderous remarks, that the jury could not award her any damages whatever on account of her discharge was proper in view of the fact that she was not employed for a fixed term, plaintiff was entitled to show that she was in fact damaged in her reputation by what had transpired, as represented by evidence that she was unable to obtain or retain employment thereafter by reason thereof. Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946).

An instruction in a suit for slander which erroneously uses the word “uttered” instead of the word “published” is not reversible error. Cartwright-Caps Co. v. Fischel & Kaufman, 113 Miss. 359, 74 So. 278, 1917 Miss. LEXIS 109 (Miss. 1917).

RESEARCH REFERENCES

ALR.

Defamation by radio or television. 50 A.L.R.3d 1311.

Defamation: privilege attaching to news report of criminal activities based on information supplied by public safety officers-modern status. 47 A.L.R.4th 718.

Defamation: who is “libel-proof.” 50 A.L.R.4th 1257.

Libel and slander: defamation by cartoon. 52 A.L.R.4th 424.

Defamation of class or group as actionable by individual member. 52 A.L.R.4th 618.

Libel and slander: defamation by question. 53 A.L.R.4th 450.

Libel and slander: sufficiency of identification of allegedly defamed party. 54 A.L.R.4th 746.

Defamation of professional athlete or sports figure. 54 A.L.R.4th 869.

Imputation of criminal, abnormal, or otherwise offensive sexual attitude or behavior as defamation – post-New York Times cases. 57 A.L.R.4th 404.

Libel or slander: defamation by statement made in jest. 57 A.L.R.4th 520.

Who is “public figure” for purposes of defamation action. 19 A.L.R.5th 1.

Liability of Internet Service Provider For Internet or E-mail Defamation. 84 A.L.R.5th 169.

Am. Jur.

50 Am. Jur. 2d, Libel and Slander § 353.

19 Am. Jur. Trials, Defamation, §§ 1 et seq.

6 Am. Jur. Proof of Facts 3d, Invasion of Privacy by False Light Publicity, §§ 1 et seq.

CJS.

53 C.J.S., Libel and Slander

Injurious Falsehood §§ 173-180.

JUDICIAL DECISIONS

1. In general.

A person is not a “public figure” who does not occupy a role of special prominence in the affairs of society or who has not been thrust to the forefront of particular public controversies in order to influence the resolution of the issues involved; and the New York Times rule does not automatically extend to all reports of judicial proceedings regardless of whether the party plaintiff in such proceedings is a public figure who might be assumed to have voluntarily exposed him – or herself to increased risk of injury from defamatory falsehood; there is no substantial reason why one involved in litigation should forfeit that degree of protection afforded by the law of defamation simply by virtue of being drawn into a courtroom. Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154, 1976 U.S. LEXIS 26 (U.S. 1976).

RESEARCH REFERENCES

ALR.

Libel and slander: defamation by cartoon. 52 A.L.R.4th 424.

Libel and slander: defamation by photograph. 52 A.L.R.4th 488.

Defamation of class or group as actionable by individual member. 52 A.L.R.4th 618.

Libel and slander: defamation by question. 53 A.L.R.4th 450.

Libel and slander: sufficiency of identification of allegedly defamed party. 54 A.L.R.4th 746.

Defamation of professional athlete or sports figure. 54 A.L.R.4th 869.

Imputation of criminal, abnormal, or otherwise offensive sexual attitude or behavior as defamation – post-New York Times cases. 57 A.L.R.4th 404.

Libel or slander: defamation by statement made in jest. 57 A.L.R.4th 520.

Who is “public figure” for purposes of defamation action. 19 A.L.R.5th 1.

Access of public to broadcast facilities under First Amendment. 66 A.L.R. Fed. 628.

Am. Jur.

50 Am. Jur. 2d, Libel and Slander §§ 349, 351, 387-390, 393.

6 Am. Jur. Proof of Facts 3d, Invasion of Privacy by False Light Publicity, §§ 1 et seq.

CJS.

53 C.J.S., Libel and Slander

Injurious Falsehood §§ 157-160.

Law Reviews.

Comment, Ferguson v. Watkins: The Vortex Within Mississippi Defamation Law. 55 Miss. L. J. 619, September, 1985.

JUDICIAL DECISIONS

1. In general.

Newspaper’s refusal to print a retraction of an article publishing a sheriff’s department report concerning a contractor’s arrest for home repair fraud did not amount to gross negligence, as Miss. Code Ann. §95-1-5(2) did not impose upon the newspaper a duty to retract. Hegwood v. Cmty. First Holdings, Inc., 546 F. Supp. 2d 363, 2008 U.S. Dist. LEXIS 37901 (S.D. Miss. 2008).

Failure of plaintiff to serve demand for retraction upon newspaper and wire service before filing civil action for libel requires dismissal of libel action; dismissal is without prejudice, where newspaper and wire service had suffered no substantial prejudice from failure to receive demand for retraction, in that filing of claim placed newspaper and wire service on notice of nature and identity of plaintiff’s claims. Pannell v. Associated Press, 690 F. Supp. 546, 1988 U.S. Dist. LEXIS 8512 (N.D. Miss. 1988).

Miss Code Anno §95-1-5(1) applies to Associated Press Wire Service and other forms of news reporting services such as news magazine and cable or satellite news transmissions. Pannell v. Associated Press, 690 F. Supp. 546, 1988 U.S. Dist. LEXIS 8512 (N.D. Miss. 1988).

Retraction demand is absolute prerequisite to cause of action for libel. Pannell v. Associated Press, 690 F. Supp. 546, 1988 U.S. Dist. LEXIS 8512 (N.D. Miss. 1988).

Cross References —

Powers of municipal governing authorities to prevent, remove, and abate nuisances, see §21-19-1.

Places resorted to by narcotic drug addicts as public nuisance, see §41-29-309.

Carrying concealed pistol or revolver in place of nuisance, see §45-9-101.

Forest fires as public nuisance, see §49-19-25.

Bar of tort action against governmental bodies for airport development activities, see §61-3-83.

Building, clubs or boats containing gambling devices as nuisances, see §95-3-25.

RESEARCH REFERENCES

ALR.

Coalyard as a nuisance. 8 A.L.R.2d 419.

Damages for diminution of value of use of the property as recoverable for a permanent nuisance affecting real property. 10 A.L.R.2d 669.

Animal rendering or bone-boiling plant or business as nuisance. 17 A.L.R.2d 1269.

Stockyard as nuisance. 18 A.L.R.2d 1033.

Use of phonograph, loud-speaker, or other mechanical or electrical device for broadcasting music, advertising, or sales talk from business premises, as nuisance. 23 A.L.R.2d 1289.

Tourist or trailer camp, motor court or motel, as nuisance. 24 A.L.R.2d 571.

Private school as nuisance. 27 A.L.R.2d 1249.

Liability of landlord for injury or death of third person on street or highway by nuisance created by tenant for month to month, year to year, or the like. 39 A.L.R.2d 973.

Quarries, gravel pits, and the like as nuisances. 47 A.L.R.2d 490.

Cemetery or burial ground as nuisance. 50 A.L.R.2d 1324.

Public dump as nuisance. 52 A.L.R.2d 1134.

Dairy, creamery, or milk distributing plant, as nuisance. 92 A.L.R.2d 974.

Drive-in theater or other outdoor dramatic or musical entertainment as nuisance. 93 A.L.R.2d 1171.

Keeping pigs as nuisance. 2 A.L.R.3d 931.

Keeping poultry as nuisance. 2 A.L.R.3d 965.

Motorbus or truck terminal as nuisance. 2 A.L.R.3d 1372.

Institution for the punishment or rehabilitation of criminals, delinquents, or alcoholics as enjoinable nuisance. 21 A.L.R.3d 1058.

Operation of incinerator as nuisance. 41 A.L.R.3d 1009.

Laundry or drycleaning establishment as nuisance. 41 A.L.R.3d 1236.

Automobile racetrack or drag strip as nuisance. 41 A.L.R.3d 1273.

Gasoline or other fuel storage tanks as nuisance. 50 A.L.R.3d 209.

Zoo as nuisance. 58 A.L.R.3d 1126.

Pornoshops or similar places disseminating obscene materials as nuisance. 58 A.L.R.3d 1134.

Interference with radio or television reception as nuisance. 58 A.L.R.3d 1142.

Animals as attractive nuisance. 64 A.L.R.3d 1069.

Existence of, and relief from, nuisance created by operation of air conditioning or ventilating equipment. 79 A.L.R.3d 320.

Massage parlor as nuisance. 80 A.L.R.3d 1020.

Operation of cement plant as nuisance. 82 A.L.R.3d 1004.

Keeping bees as nuisance. 88 A.L.R.3d 992.

Carwash as nuisance. 4 A.L.R.4th 1308.

Windmill as nuisance. 36 A.L.R.4th 1159.

Computer as nuisance. 45 A.L.R.4th 1212.

Telephone calls as nuisance. 53 A.L.R.4th 1153.

Tower or Antenna as Constituting Nuisance. 88 A.L.R.5th 641.

Keeping of domestic animal as constituting public or private nuisance. 90 A.L.R.5th 619.

Sewage treatment plant as constituting nuisance. 92 A.L.R.5th 517.

Nudity as constituting nuisance. 92 A.L.R.5th 593.

Hog breeding, confining, or processing facility as constituting nuisance. 93 A.L.R.5th 621.

Remedies for sewage treatment plant alleged or deemed to be nuisance. 101 A.L.R.5th 287.

Vibrations not accompanied by blasting or explosion as constituting nuisance. 103 A.L.R.5th 157.

Am. Jur.

24 Am. Jur. 2d, Disorderly Houses §§ 1 et seq.

18A Am. Jur. Pl & Pr Forms (Rev), Nuisances, Forms 163, 164 (complaint or declaration for abatement of house of prostitution).

37 Am. Jur. Proof of Facts 2d 141, Outdoor Advertising Sign or Billboard As Nuisance.

CJS.

27 C.J.S., Disorderly Houses §§ 1 et seq.

Law Reviews.

1978 Mississippi Supreme Court Review: Torts. 50 Miss. L. J. 137, March, 1979.

Rychlak, Common-Law remedies for environmental wrongs: The role of private nuisance. 59 Miss. L. J. 657, Winter, 1989.

Practice References.

Blackman and Thomas, A Practical Guide to Disputes Between Adjoining Landowners (Matthew Bender).

Damages in Tort Actions (Matthew Bender).

Douthwaite, Ronald W. Eades, Jury Instructions for Personal Injury and Tort Cases (Michie).

Munger, What’s It Worth? A Guide to Current Personal Injury Awards and Settlements, 2003 Edition (Michie).

JUDICIAL DECISIONS

1. In general.

2. Constitutionality.

1. In general.

Sections95-3-1 et seq., including §95-3-13, were meant to supplement rather than to replace the common-law rules of evidence of public nuisance. Proby v. State, 498 So. 2d 792, 1986 Miss. LEXIS 2841 (Miss. 1986).

Where defendant operated a combination cafe and dance hall which was declared to be a public nuisance, there was no adequate remedy at law for relief of this nuisance and it was within the inherent powers of the chancery court to enjoin the operation of the cafe in the manner constituting the nuisance. Green v. State, 212 Miss. 846, 56 So. 2d 12, 1952 Miss. LEXIS 317 (Miss. 1952).

This statute [Code 1942, § 1060] has no application to nuisances involving gambling and the sale of intoxicating liquors, and does not authorize a decree including a prohibition against the removal of any of the personal property from the premises; a decree in such respect is void and cannot sustain a conviction of contempt for violation thereof. Redding v. State, 184 Miss. 371, 185 So. 560, 1939 Miss. LEXIS 23 (Miss. 1939).

2. Constitutionality.

The Mississippi statute forbidding nuisances, Miss. Code Ann. §§95-3-1 et seq., is not unconstitutionally vague; adequate notice was clearly provided by the terms of the statute, which were clearly understandable words that left no room for misinterpretation. Collins v. City of Hazlehurst, 151 F. Supp. 2d 749, 2001 U.S. Dist. LEXIS 10765 (S.D. Miss. 2001).

RESEARCH REFERENCES

ALR.

Liability of landlord for injury or death of third person on street or highway by nuisance created by tenant for month to month, year to year, or the like. 39 A.L.R.2d 973.

Liability for damage to land or its occupants from dust, gases, odors, vibration, or the like, occasioned by defendant’s continuous vehicular use of adjoining or nearby public highway. 25 A.L.R.4th 1192.

Am. Jur.

24 Am. Jur. 2d, Disorderly Houses §§ 30 et seq.

37 Am. Jur. Proof of Facts 2d 141, Outdoor Advertising Sign or Billboard As Nuisance.

43 Am. Jur. Proof of Facts 2d 303, Commercial Activity as Actionable Private Nuisance.

CJS.

27 C.J.S., Disorderly Houses §§ 3-5.

Cross References —

Suits by attorney general, see §§7-5-37 et seq.

Duties of county attorneys generally, see §19-23-11.

Duty of district attorney to appear and prosecute, see §25-31-11.

Investigation of nuisance questions by state board of health, see §41-3-15.

Abatement of matters or things declared by state health board to be nuisances, see §41-23-13.

Abatement of gambling establishments constituting nuisance, see §95-3-25.

RESEARCH REFERENCES

ALR.

What constitutes special injury that entitles private party to maintain action based on public nuisance-modern cases. 71 A.L.R.4th 13.

Remedies for sewage treatment plant alleged or deemed to be nuisance. 101 A.L.R.5th 287.

Am. Jur.

58 Am. Jur. 2d, Nuisances §§ 207, 292, 293, 318.

18A Am. Jur. Pl & Pr Forms (Rev), Nuisances, Form 108 (complaint, petition, or declaration – For equitable relief from nuisance and for damages – contamination of ground surface from storage and disposal of toxic substances by lessee); Form 164 (complaint or declaration by state for abatement of house of prostitution).

43 Am. Jur. Proof of Facts 2d 303, Commercial Activity as Actionable Private Nuisance.

5 Am. Jur. Proof of Facts 3d, Special Injury Sufficient to Give Standing to Maintain Private Action Based on Public Nuisance, §§ 1 et seq.

CJS.

66 C.J.S., Nuisances §§ 149, 150 et seq.

JUDICIAL DECISIONS

1. In general.

Complainant owner of land adjoining alley through which he has access to his property has special interest in alley and suffers such peculiar injury by obstruction of alley by another land owner adjoining alley as to entitle him to relief, where alley is not, and never has been, open for public use and no one is presently interested in or affected by making alley accessible to complainant. Perry v. Jones, 43 So. 2d 565 (Miss. 1949).

Temporary injunction in suit to abate nuisance-maintaining building where lewdness and prostitution was practiced-can only enjoin particular nuisance complained of in bill. Dickerson v. State, 159 Miss. 83, 132 So. 88, 1931 Miss. LEXIS 38 (Miss. 1931).

Decree on hearing for temporary injunction restraining defendant from maintaining nuisance-maintaining building where lewdness and prostitution was practiced-anywhere within court district held improper. Dickerson v. State, 159 Miss. 83, 132 So. 88, 1931 Miss. LEXIS 38 (Miss. 1931).

Cross References —

Injunctions generally, see §§11-13-1 et seq.

RESEARCH REFERENCES

ALR.

Venue of suit to enjoin nuisance. 7 A.L.R.2d 481.

Joinder, in injunction action to restrain or abate nuisance, of persons contributing thereto through separate and independent acts. 45 A.L.R.2d 1284.

JUDICIAL DECISIONS

1. In general.

Where an action brought in the chancery court for an injunction to abate a nuisance, and for damages already accrued, failed on the injunction issue, the chancery court erred in not deciding the issue of damages. Shaw v. Owen, 229 Miss. 126, 90 So. 2d 179, 1956 Miss. LEXIS 593 (Miss. 1956).

Temporary injunction in suit to abate nuisance-maintaining building where lewdness and prostitution was practiced-can only enjoin particular nuisance complained of in bill. Dickerson v. State, 159 Miss. 83, 132 So. 88, 1931 Miss. LEXIS 38 (Miss. 1931).

Decree on hearing for temporary injunction restraining defendant from maintaining nuisance-maintaining building where lewdness and prostitution was practiced-anywhere within court district held improper. Dickerson v. State, 159 Miss. 83, 132 So. 88, 1931 Miss. LEXIS 38 (Miss. 1931).

Cross References —

Injunctions generally, see §§11-13-1 et seq.

JUDICIAL DECISIONS

1. In general.

Temporary injunction in suit to abate nuisance-maintaining building where lewdness and prostitution was practiced-can only enjoin particular nuisance complained of in bill. Dickerson v. State, 159 Miss. 83, 132 So. 88, 1931 Miss. LEXIS 38 (Miss. 1931).

Decree on hearing for temporary injunction restraining defendant from maintaining nuisance-maintaining building where lewdness and prostitution was practiced-anywhere within court district held improper. Dickerson v. State, 159 Miss. 83, 132 So. 88, 1931 Miss. LEXIS 38 (Miss. 1931).

JUDICIAL DECISIONS

1. In general.

Temporary injunction in suit to abate nuisance-maintaining building where lewdness and prostitution was practiced-can only enjoin particular nuisance complained of in bill. Dickerson v. State, 159 Miss. 83, 132 So. 88, 1931 Miss. LEXIS 38 (Miss. 1931).

Decree on hearing for temporary injunction restraining defendant from maintaining nuisance-maintaining building where lewdness and prostitution was practiced-anywhere within court district held improper. Dickerson v. State, 159 Miss. 83, 132 So. 88, 1931 Miss. LEXIS 38 (Miss. 1931).

RESEARCH REFERENCES

ALR.

Modern status of rules as to balance of convenience or social utility as affecting relief from nuisance. 40 A.L.R.3d 601.

“Coming to nuisance” as a defense or estoppel. 42 A.L.R.3d 344.

What constitutes special injury that entitles private party to maintain action based on public nuisance-modern cases. 71 A.L.R.4th 13.

Am. Jur.

24 Am. Jur. 2d, Disorderly Houses §§ 11 et seq.

CJS.

27 C.J.S., Disorderly Houses §§ 7 et seq.

JUDICIAL DECISIONS

1. In general.

Since §95-3-13 is directed against houses of prostitution, a specific type of nuisance, its provisions were inapplicable to city’s petition to enjoin the operation of a lounge which was predicated on the common law of nuisance. Proby v. State, 498 So. 2d 792, 1986 Miss. LEXIS 2841 (Miss. 1986).

Sections95-3-1 et seq., including §95-3-13, were meant to supplement rather than to replace the common-law rules of evidence of public nuisance. Proby v. State, 498 So. 2d 792, 1986 Miss. LEXIS 2841 (Miss. 1986).

RESEARCH REFERENCES

Am. Jur.

24 Am. Jur. 2d, Disorderly Houses §§ 45, 46.

CJS.

66 C.J.S., Nuisances §§ 209-215.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 1067] is not applicable to the abatement of nuisances growing out of the sale of intoxicating liquors provided for in Code 1942, § 2646. Pigford v. State, 184 Miss. 194, 183 So. 259, 1938 Miss. LEXIS 303 (Miss. 1939).

This section [Code 1942, § 1067] is not in pari materia with Code 1942, §§ 2646, 2647, vesting the chancery court with power to abate nuisances relating to intoxicating liquors. Pigford v. State, 184 Miss. 194, 183 So. 259, 1938 Miss. LEXIS 303 (Miss. 1939).

Cross References —

Process, notice and publication generally, see §§13-3-1 et seq.

Cross References —

Power of supreme court, chancery courts, circuit courts and county courts to punish for contempt generally, see §9-1-17.

Power of chancery court of chancellor to punish for contempt, see §§9-5-85,9-5-87.

JUDICIAL DECISIONS

1. In general.

In a proceeding involving gambling and the sale of intoxicating liquors, the inclusion in the decree enjoining the nuisance of a prohibition against the removal of any of the personal property from the premises was absolutely void, and a conviction of contempt for removing personal property could not be sustained, since this chapter does not apply to cases involving gambling and liquor nuisances where prostitution is not involved. Redding v. State, 184 Miss. 371, 185 So. 560, 1939 Miss. LEXIS 23 (Miss. 1939).

Cross References —

Duties of county attorneys generally, see §19-23-11.

Duty of district attorney to appear and prosecute, see §25-31-11.

Abatement of nuisances declared by state board of health, see §41-23-13.

Duty of county attorney or district attorney to bring action to abate nuisance, see §95-3-5.

Cross References —

Liability of tenant holding over after notice to quit demised premises, see §89-7-25.

Proceedings to remove tenant or les see holding over, see §§89-7-27 et seq.

RESEARCH REFERENCES

ALR.

Fault as consideration in alimony, spousal support, or property division awards pursuant to no-fault divorce. 86 A.L.R.3d 1116.

Amendment Notes —

The 2005 amendment, 5th Ex Sess, ch. 16, rewrote the last sentence of the first paragraph.

Cross References —

Suits by attorney general, see §§7-5-37 et seq.

Duties of county attorneys generally, see §19-23-11.

Elected or appointed official not to derive any pecuniary benefit as result of duties under this section, and penalties therefor, see §25-4-119.

Duty of district attorney to appear and prosecute, see §25-31-11.

Licensing and regulation of cruise vessels, see §27-109-1 et seq.

Enforceability of gambling and future contracts generally, see §§87-1-1 et seq.

Definition of nuisance in connection with disorderly houses, see §95-3-1.

Gambling offenses generally, see §§97-33-1 et seq.

RESEARCH REFERENCES

ALR.

Validity and construction of statute exempting gambling operations carried on by religious, charitable, or other nonprofit organizations from general prohibitions against gambling. 42 A.L.R.3d 663.

Validity, construction, and application of statute or ordinance prohibiting or regulating use or occupancy of premises for bookmaking or pool selling. 82 A.L.R.4th 356.

Am. Jur.

38 Am. Jur. 2d, Gambling §§ 129 et seq.

12A Am. Jur. Pl & Pr Forms (Rev), Gambling, Form 1 (complaint or declaration to abate gambling house as nuisance).

CJS.

38 C.J.S., Gaming §§ 106 et seq.

Law Reviews.

Rychlak, Common-Law remedies for environmental wrongs: The role of private nuisance. 59 Miss. L. J. 657, Winter, 1989.

JUDICIAL DECISIONS

1. In general.

2. Maintenance of action.

3. Injunctions.

4. Extent of decree.

1. In general.

That the defendant may not be required to incriminate himself does not render demurrable a petition to enjoin as a public nuisance what is also a crime. State v. Myers, 244 Miss. 778, 146 So. 2d 334, 1962 Miss. LEXIS 506 (Miss. 1962).

A defendant should seek the court’s ruling on whether, in view of the privilege against self-incrimination, he should be required to answer parts of the bill. State v. Myers, 244 Miss. 778, 146 So. 2d 334, 1962 Miss. LEXIS 506 (Miss. 1962).

The statutes which give the state a power to enjoin operation of gaming devices and also give the state power to abate by injunction the sale of liquor are not invalid and unconstitutional because they constitute an attempt to confer upon the chancery court criminal jurisdiction. Brooks v. State, 219 Miss. 262, 68 So. 2d 461, 1953 Miss. LEXIS 387 (Miss. 1953).

Statutes which give the state power to enjoin the operation of gaming devices and which also give the state power to abate by injunction the sale of liquor, are not unconstitutional because they deny due process of law in that the defendants are denied the right of trial by jury. Brooks v. State, 219 Miss. 262, 68 So. 2d 461, 1953 Miss. LEXIS 387 (Miss. 1953).

Slot machines kept and used for gambling purposes are included in this statute [Code 1942, § 1073] by virtue of clause, “or any other kind or description of gambling device under any other name whatever,” and “ejusdem generis” rule cannot avail to exclude such gambling devices, as doctrine of “ejusdem generis” is rule of construction to be applied as an aid in ascertaining legislative intent and cannot control where plain purpose of legislature would thereby be hindered or defeated; nor does doctrine apply where specific words of statute signify subjects greatly different from one another; nor where specific words embrace all objects of their class, so that general words must bear different meaning from specific words or be meaningless; nor where there are no specific terms followed by general terms; the general expression is not to be considered as limited only to last of enumeration, but applies to all. Morgan v. State, 208 Miss. 185, 44 So. 2d 45, 1950 Miss. LEXIS 239 (Miss. 1950).

This statute [Code 1942, § 1073] is penal and must be construed strictly. State ex rel. Whall v. Saenger Theatres Corp., 190 Miss. 391, 200 So. 442, 1941 Miss. LEXIS 58 (Miss. 1941).

2. Maintenance of action.

While in the absence of statutory authority a citizen, as such, has no standing to champion the rights of the public in abating a public nuisance, the legislature may authorize such action. State ex rel. Whall v. Saenger Theatres Corp., 190 Miss. 391, 200 So. 442, 1941 Miss. LEXIS 58 (Miss. 1941).

A proceeding to abate a nuisance under this section [Code 1942, § 1073] is maintainable by a private citizen without first requesting the public officials named therein to do so. State ex rel. Whall v. Saenger Theatres Corp., 190 Miss. 391, 200 So. 442, 1941 Miss. LEXIS 58 (Miss. 1941).

Applying the rule of construction that where a statute enumerates and specifies subjects or things upon which it is to operate, it is to be construed as excluding from its effect all those not expressly mentioned, or under a general clause, those not of like kind or classification as those enumerated, “bank night” scheme in theatres was not within the purview of this section. State ex rel. Whall v. Saenger Theatres Corp., 190 Miss. 391, 200 So. 442, 1941 Miss. LEXIS 58 (Miss. 1941).

Action to abate “bank night” scheme in theaters and to recover for theater admission money spent by the complainant and others who had assigned their claims to the complainant, was properly dismissed where the scheme in question was not within the purview of a statute making any building, club, vessel, etc., wherein is kept or exhibited any game or gaming table, etc., a common nuisance. State ex rel. Whall v. Saenger Theatres Corp., 190 Miss. 391, 200 So. 442, 1941 Miss. LEXIS 58 (Miss. 1941).

This section [Code 1942, § 1073] expressly authorizes the institution of a proceeding for the abatement of nuisances by private citizens. Caravella v. State, 185 Miss. 1, 186 So. 653, 1939 Miss. LEXIS 118 (Miss. 1939).

A decree abating the nuisances of selling intoxicating liquor and carrying on gambling on certain premises, and providing for the condemnation and sale of personal property used in connection with the operation of such nuisances, was not erroneous because the court decided the case on final hearing on proof submitted on the hearing for a temporary injunction alone where there was no request on the part of the appellants that they might present any additional evidence, nor demand for a further hearing with the showing that other and additional evidence was desired to be offered. Caravella v. State, 185 Miss. 1, 186 So. 653, 1939 Miss. LEXIS 118 (Miss. 1939).

This section [Code 1942, § 1073], together with Code 1930, § 2007, as amended by Laws, 1938, Chapter 349 (Code 1942, § 2646), and Code 1930, § 1979 (Code 1942, § 2618), warrants a proceeding to abate nuisances of selling intoxicating liquors and carrying on gambling on certain described premises and a decree perpetually enjoining the defendant from operating such nuisances on the premises and providing for the condemnation and sale of all personal property used in connection therewith, where the lawful use of the real estate involved is not restrained. Caravella v. State, 185 Miss. 1, 186 So. 653, 1939 Miss. LEXIS 118 (Miss. 1939).

3. Injunctions.

That a public nuisance may also be a violation of the criminal law does not reduce the authority of the chancery court to enjoin it. State v. Myers, 244 Miss. 778, 146 So. 2d 334, 1962 Miss. LEXIS 506 (Miss. 1962).

Since the statute [Code 1942, § 1073] did not give to the chancery court power to enjoin a defendant from violating the liquor and gambling laws anywhere in the state, other than on the premises found to be a common nuisance, an injunction which undertook to prohibit the defendant from having intoxicating liquors and gambling devices in his possession at places, other than the place ordered to be abated as a nuisance, was invalid, so that a defendant, charged with violating the invalid portion of the injunction, was improperly found to be in contempt of court. Horne v. State, 232 Miss. 252, 98 So. 2d 653, 1957 Miss. LEXIS 465 (Miss. 1957).

The possession of slot machines was in violation of an injunction against violation of gambling laws, regardless of whether machines were operated. Stevens v. State, 225 Miss. 48, 82 So. 2d 645, 1955 Miss. LEXIS 557 (Miss. 1955).

A temporary injunction may issue where it appears that intoxicating liquors and slot machines were stored and exhibited at a motor court and cafe in violation of statute. McBride v. State, 221 Miss. 508, 73 So. 2d 154, 1954 Miss. LEXIS 557 (Miss. 1954).

Where defendant operated a combination cafe and dance hall which was declared to be a public nuisance, there was no adequate remedy at law for relief of this nuisance and it was within the inherent power of the chancery court to enjoin the operation of the cafe in the manner constituting the nuisance. Green v. State, 212 Miss. 846, 56 So. 2d 12, 1952 Miss. LEXIS 317 (Miss. 1952).

In an action to abate a gambling place nuisance a temporary injunction is not void because it does not describe the premises. Alexander v. State, 210 Miss. 517, 49 So. 2d 387, 1950 Miss. LEXIS 353 (Miss. 1950).

Purpose of Code 1942, § 2646, which provides that where intoxicating liquors are kept, that place is a common nuisance which may be abated by an injunction, can only be accomplished by an injunction against the person or persons, who may be ascertained and adjudged to be responsible for that nuisance but the injunction does not issue to suppress a business as such. Vermillion v. State, 210 Miss. 255, 49 So. 2d 401, 1950 Miss. LEXIS 345 (Miss. 1950).

It is not enough under Code 1942, § 2646, that the nuisance therein defined be found and adjudged to exist, the identity of the person or persons responsible for the nuisance must also be ascertained and adjudicated and to the end, as the statute provides, that the nuisance so found to exist may be abated by a writ of injunction against the party or parties responsible therefor. Vermillion v. State, 210 Miss. 255, 49 So. 2d 401, 1950 Miss. LEXIS 345 (Miss. 1950).

In a suit to abate a gambling place as a nuisance, the chancery court had power to issue temporary injunction inasmuch as Code 1942, § 1073 specifically provides that all rules of evidence and of practice and procedure that pertain to courts of equity generally in this state may be invoked and applied in any injunction procedure thereunder and this evidences a legislative intent to grant the court the full use of its injunctive powers. Alexander v. State, 210 Miss. 517, 49 So. 2d 387, 1950 Miss. LEXIS 353 (Miss. 1950).

4. Extent of decree.

In a padlock proceeding where it appeared that the defendants could have conducted an illegal liquor business in the building as well as outside the building, the chancellor was not justified in padlocking the building and depriving defendant of the use thereof for legitimate purposes. Whittington v. State, 222 Miss. 94, 75 So. 2d 272, 1954 Miss. LEXIS 625 (Miss. 1954).

While the court can, under this section [Code 1942, § 1073], abate and enjoin the prosecution of the business adjudged to be a common nuisance, such as selling of liquor and gambling, and require offenders to execute a bond to comply with the decree, the court is without power to order the padlocking of the buildings, where defendants have executed the compliance bond. Foreman v. State, 209 Miss. 331, 46 So. 2d 794, 1950 Miss. LEXIS 394 (Miss. 1950).

This section [Code 1942, § 1073] does not authorize the inclusion in a decree, enjoining nuisance of a prohibition against the removal of any of the personal property from the premises, and, the decree being void in that respect will not sustain a conviction of contempt for violation thereof. Redding v. State, 184 Miss. 371, 185 So. 560, 1939 Miss. LEXIS 23 (Miss. 1939).

Editor’s Notes —

Section 49-17-7 provides that the words “Mississippi Air and Water Pollution Control Commission” wherever they may appear in the laws of the State of Mississippi shall be construed to mean the Mississippi Commission on Natural Resources. Section 49-2-6, however, provides wherever the term “Mississippi Commission on Natural Resources” appears in any law the same shall mean the Mississippi Commission on Environmental Quality.

Amendment Notes —

The 2004 amendment, in (2)(a), inserted “or products thereof” twice, and “fowl or plants for breeding or sales” in the first sentence, and added the second sentence; and added (2)(d).

The 2009 amendment, in (1), substituted “absolute defense to the nuisance action, if the operation is in compliance with all applicable state and federal permits” for “absolute defense to such action, if the conditions or circumstances alleged to constitute a nuisance have existed substantially unchanged since the established date of operation”; and in (2), inserted “or production site” and “honeybees, honey and other products of the beehive” in the first sentence and substituted “in accordance with best agricultural management practices and are in compliance with any applicable state and federal permits” for “in accordance with traditional farm practices” at the end of (a), deleted former (b), which defined “established date of operation,” and redesignated former (c) and (d) as present (b) and (c).

Cross References —

Exemption of land used for agricultural purposes from zoning regulations, see §17-1-3.

Exemption of farm buildings from building codes, see §19-5-9.

Animal and poultry by-products disposal or rendering plants, see §§41-51-1 et seq.

Mississippi Air and Water Pollution Control Law, see §§49-17-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Section 17-1-3 prohibits requiring the issuing of building permits and payment of building permit fees for farm buildings or other farm structures. Section 17-2-7 prohibits the enforcement of building codes, including the International Building Codes, on farm structures. However, such exemptions do not include farm residences. 2006 Miss. Op. Att'y Gen. 436.

RESEARCH REFERENCES

ALR.

Animal rendering or bone-boiling plant or business as nuisance. 17 A.L.R.2d 1269.

Stockyard as nuisance. 18 A.L.R.2d 1033.

Dairy, creamery, or milk distributing plant, as nuisance. 92 A.L.R.2d 974.

Keeping pigs as nuisance. 2 A.L.R.3d 931.

Keeping poultry as nuisance. 2 A.L.R.3d 965.

Keeping horses as nuisance. 27 A.L.R.3d 627.

“Coming to nuisance” as a defense or estoppel. 42 A.L.R.3d 344.

Animals as attractive nuisance. 64 A.L.R.3d 1069.

Keeping bees as nuisance. 88 A.L.R.3d 992.

Keeping of domestic animal as constituting public or private nuisance. 90 A.L.R.5th 619.

Hog breeding, confining, or processing facility as constituting nuisance. 93 A.L.R.5th 621.

JUDICIAL DECISIONS

1. In general.

The 2003 version of the Mississippi Right to Farm statute, Miss. Code Ann. §95-3-29(1), does not contain the condition that the operation is in compliance with all applicable state and federal permits. Hill v. Koppers, Inc., 2010 U.S. Dist. LEXIS 5036 (N.D. Miss. Jan. 20, 2010).

Plaintiff’s nuisance claim was barred by Mississippi’s Right to Farm statute, Miss. Code Ann. §95-3-29(1), because a wood processing plant–which had been in operation for approximately 100 years–was included within the statute’s definition of an agricultural operation. Hill v. Koppers, Inc., 2010 U.S. Dist. LEXIS 5036 (N.D. Miss. Jan. 20, 2010).

Although the Mississippi Air and Water Pollution Control Law made it unlawful for a person to cause pollution of the air or waters under Miss. Code Ann. §49-17-29 and allowed private party participation under Miss. Code Ann. §49-17-35 to initiate a request with the state department of environmental quality, the law provided neither a private right of action or a private remedy for persons adversely affected by air or water pollution; the claims against hog farm operators were also barred by the Right to Farm Law of Miss. Code Ann. §95-3-29(1) in that the farms had been operating more than a year without a substantial change in operation. Norman v. Prestage Farms, Inc., 2007 U.S. Dist. LEXIS 24456 (N.D. Miss. Mar. 30, 2007).

United States Bankruptcy Court for the Northern District of Mississippi held in abeyance its final decision on defendants Prestage Farms’, motion for summary judgment pending briefing by the parties because it was unclear whether, under the Mississippi Air and Water Pollution Control Law, codified in Miss. Code Ann. §49-17-1, et seq., plaintiffs could maintain a private cause of action of nuisance; if they could, the action was not time barred under Miss. Code Ann. §95-3-29. Moore v. Prestage Farms, Inc. (In re Moore), 306 B.R. 849, 2004 Bankr. LEXIS 282 (Bankr. N.D. Miss. 2004).

A nuisance action against a paper mill brought by plaintiffs who lived approximately 100 miles downriver from the mill, arising from injury allegedly caused by the mill’s discharge of toxic chemicals into the river, was not time-barred by §95-3-29; given the purpose of the statute-to prevent homes or businesses from building in the vicinity of an established agricultural operation and then attempting to have the agricultural operation penalized as a nuisance because of odors, sounds and sights traditionally associated with such a business-it would not be allowed to defeat an action for nuisance on property located 100 miles away from the agricultural operation. Leaf River Forest Prods. v. Ferguson, 662 So. 2d 648, 1995 Miss. LEXIS 557 (Miss. 1995).

Editor’s Notes —

Former §95-5-1 was entitled: By cutting trees; live oaks.

Former §95-5-3 was entitled: By cutting trees; cypress and other trees.

Former §95-5-5 was entitled: By cutting trees; ornamental trees.

Former §95-5-7 was entitled: By cutting shrubs, bushes and plants.

Former §95-5-9 was entitled: By cutting fruit trees.

RESEARCH REFERENCES

Practice References.

Blackman and Thomas, A Practical Guide to Disputes Between Adjoining Landowners (Matthew Bender).

Damages in Tort Actions (Matthew Bender).

Douthwaite, Ronald W. Eades, Jury Instructions for Personal Injury and Tort Cases (Michie).

Munger, What’s It Worth? A Guide to Current Personal Injury Awards and Settlements, 2003 Edition (Michie).

RESEARCH REFERENCES

Am. Jur.

75 Am. Jur. 2d, Trespass §§ 1, 18, 24.

17 Am. Jur. Pl & Pr Forms (Rev), Logs and Timber, Forms 94 et seq. (injury to or conversion of timber).

Law Reviews.

Ogletree, A primer concerning industrial timber litigation with emphasis upon Mississippi law. 59 Miss. L. J. 387, Fall, 1989.

JUDICIAL DECISIONS

I. UNDER CURRENT LAW.

1. In general.

2. Statute of limitations.

3. Attorneys’ fees.

4. Life tenants and remaindermen.

5. Co-ownership of property.

6. Damages.

7. Willfully or in conscious disregard.

8. Burden of proof.

9. Evidence.

II. UNDER FORMER LAW.

11. In general.

12. Construction and application, generally.

13. Effect of verbal permission to cut trees.

14. Possession of and title to land.

15. —Joint ownership.

16. —Tax title holder.

17. Good faith cutting of trees.

18. Wilfulness or negligence.

19. Mistake.

20. Trees between street and sidewalk.

21. Liability for agent’s acts.

22. Recovery of statutory penalties and actual and punitive damages.

23. Damages.

I. UNDER CURRENT LAW.

1. In general.

Penalty under Miss. Code Ann. §95-5-10 does not fit claims that fall under the definition of waste; therefore, in an action where two owners granted timber deeds for property without the consent of the other co-tenants, dismissal of an action for waste was improper because the statutory penalty in Miss. Code Ann. §95-5-10 was not the exclusive remedy for the wrongful cutting of timber. Tolbert v. Southgate Timber Co., 943 So. 2d 90, 2006 Miss. App. LEXIS 868 (Miss. Ct. App. 2006).

As a “good faith” defense no longer existed in cases of timber trespass, the chancery court erred in finding that a logging company was not jointly and severally liable with the individuals for the timber trespass on the landowner’s property. Moorehead v. Hudson, 888 So. 2d 459, 2004 Miss. App. LEXIS 748 (Miss. Ct. App. 2004).

The person injured was the owner of the property from which the trees were cut. Flowers v. McCraw, 792 So. 2d 339, 2001 Miss. App. LEXIS 325 (Miss. Ct. App. 2001).

The statute is highly penal and is to be applied only in the clearest of cases. McCorkle v. Loumiss Timber Co., 760 So. 2d 845, 2000 Miss. App. LEXIS 258 (Miss. Ct. App. 2000).

2. Statute of limitations.

Supreme Court of Mississippi overruled McCain v. Memphis Hardwood Flooring Co., 725 So. 2d 788 (Miss. 1998), to the extent that the remedies provided in Miss. Code Ann. §95-5-10(1) are subject to the limitations period set out in Miss. Code Ann. §15-1-33. Stockstill v. Gammill, 943 So. 2d 35, 2006 Miss. LEXIS 624 (Miss. 2006).

Denial of expert witness fees and attorney fees under Miss. Code Ann. §95-5-10(3) was not manifestly wrong or clearly erroneous despite an award of compensatory damages for the cutting down of trees because the cutting was done mistakenly. Stockstill v. Gammill, 943 So. 2d 35, 2006 Miss. LEXIS 624 (Miss. 2006).

Subsection 2 is subject to the statute of limitations provided in §95-5-29 because the subsection involves specific penalties; §95-5-10(1) is not subject to §95-5-29, but is subject to §15-1-33 because it is a penalty controlled by a one year statute of limitation. McCain v. Memphis Hardwood Flooring Co., 725 So. 2d 788, 1998 Miss. LEXIS 272 (Miss. 1998), overruled in part, Stockstill v. Gammill, 943 So. 2d 35, 2006 Miss. LEXIS 624 (Miss. 2006).

3. Attorneys’ fees.

Chancery court properly awarded plaintiffs attorney’s and expert fees pursuant to Miss. Code Ann. §95-5-50(3) (Rev. 2013) where the heir admitted that he had removed trees from land that was determined by a survey to be owned by plaintiffs, and the heir had not rebutted the admitted evidence of the estimates for the damages, expert fees, and attorney’s fees. Dobbs v. Crawford, 177 So.3d 448, 2015 Miss. App. LEXIS 168 (Miss. Ct. App.), cert. denied, — So.3d —, 2015 Miss. LEXIS 630 (Miss. 2015), cert. denied, 178 So.3d 729, 2015 Miss. LEXIS 554 (Miss. 2015).

In a trespass case brought against three timber cutters in which a chancery court ruled in their favor that an old wire fence was the proper boundary line, and the cutters appealed the chancery court’s denial of their claim for attorney’s fees and costs under Miss. Code Ann. §95-5-10(3), that statute was inapplicable because it created a cause of action for an individual whose trees were wrongly cut by another person. It was not the intent of the Legislature to permit fees to be recovered as costs by a successful defendant in a timber-cutting case. Camp v. Stokes, 41 So.3d 697, 2009 Miss. App. LEXIS 700 (Miss. Ct. App. 2009), rev'd, 41 So.3d 685, 2010 Miss. LEXIS 384 (Miss. 2010).

In a case involving the destruction of trees, a trial court erred in basing an award of attorney fees on the amount recovered from a lumber company because the trial court should have examined the fees requested under Miss. R. Prof. Conduct 1.5 for reasonableness. Smith v. Parkerson Lumber, Inc., 888 So. 2d 1197, 2004 Miss. App. LEXIS 1149 (Miss. Ct. App. 2004).

In a landowner’s action against a lumber company for trespass and wrongful cutting of timber, the trial judge offered no reason why the fees of the landowner’s attorneys were not reasonable, except that they did not prevail on all their claims; rather, the trial court awarded fees in proportion to the damages awarded. Such an arbitrary method of calculation was an abuse of discretion, and the appellate court reversed and remanded the matter. Smith v. Parkerson Lumber, Inc., 2004 Miss. App. LEXIS 326 (Miss. Ct. App. Apr. 20, 2004), op. withdrawn, sub. op., 888 So. 2d 1197, 2004 Miss. App. LEXIS 1149 (Miss. Ct. App. 2004).

A contingency fee arrangement does not restrict a court’s discretion in awarding attorneys’ fees to an award not greater than the percentage of recovery defined by the agreement. McCain v. Memphis Hardwood Flooring Co., 725 So. 2d 788, 1998 Miss. LEXIS 272 (Miss. 1998), overruled in part, Stockstill v. Gammill, 943 So. 2d 35, 2006 Miss. LEXIS 624 (Miss. 2006).

4. Life tenants and remaindermen.

A life tenant (and those acting under authority of the life tenant) may not be compelled to respond to the remainderman for the statutory penalties set out in the statute; a remainderman’s sole remedy in such a situation is a common law action for waste. Twin States Land & Timber Co. v. Chapman, 750 So. 2d 567, 1999 Miss. App. LEXIS 676 (Miss. Ct. App. 1999).

5. Co-ownership of property.

Where one of multiple co-owners consents to the harvesting of timber from a parcel of property, such consent bars his or her recovery under this section and also defeats recovery by the other co-owners; however, this does not mean that the other tenants are without remedy under the common law doctrine of waste for their share of the value of the timber cut. Fly Timber Co. v. Waldo, 758 So. 2d 1067, 2000 Miss. App. LEXIS 163 (Miss. Ct. App. 2000).

6. Damages.

In a case that was removed from a Mississippi chancery court to the bankruptcy court after a debtor declared Chapter 11 bankruptcy, the bankruptcy court found that the debtor was liable under Miss. Code Ann. §95-5-10 to pay an adjacent landowner $66,383.94 in damages, $3,642.50 in reforestation costs, and litigation costs because an agent he hired cut down trees that belonged to the landowner; although the landowner was entitled to recover twice the value of the trees that were cut and reforestation costs, he was not entitled to additional damages under §95-5-10 because the debtor acted with the honest and mistaken belief that he owned the property where the trees were cut. Baird v. Crosthwait (In re Crosthwait), — B.R. —, — B.R. —, 2018 Bankr. LEXIS 2917 (Bankr. N.D. Miss. Sept. 25, 2018).

Amount of $ 250 is the cost of reforestation, not the maximum fair market value of the tree under the statute. Murrell v. Brown, 202 So.3d 287, 2016 Miss. App. LEXIS 563 (Miss. Ct. App. 2016).

Trial court properly instructed the jury that it could award statutory penalties based on a preponderance of the evidence because a property owner sought and received damages under the tree-cutting statute and not punitive damages for trespass as the tortfeasor contended, the tortfeasor offered nothing but bare assertions to the contrary, and under a prior iteration of the tree-cutting statute, the Supreme Court of Mississippi held that statutory penalties need only be proven by a preponderance of the evidence Taylor v. Galloway, 189 So.3d 1288, 2016 Miss. App. LEXIS 263 (Miss. Ct. App. 2016).

Judgment denying appellants’ motion for reconsideration or, in the alternative, for a new trial after the circuit court ordered appellee to pay damages in the amount of $ 92,901.60 to appellants was affirmed because there was no error in the circuit court’s use of appellee’s valuation for the determination of damages; there was nothing in the record which contradicted that appellee’s values were based on what the market would pay for the standing timber at issue. Reeves v. Peterson, 41 So.3d 720, 2010 Miss. App. LEXIS 181 (Miss. Ct. App. 2010).

Although the landowner contended that he should have been awarded statutory damages under Miss. Code Ann. §95-5-10(2) because although the landowner and his two witnesses testified about trees that were illegally cut, and the landowner claimed that their testimonies were neither impeached nor rebutted by any other witness or evidence, it was well settled that decisions as to the weight and credibility of a witness’s statement are the proper province of the jury. The jury did award the landowner $ 3,200 in damages, and based on the record, the appellate court did not find that this award was unreasonably or outrageously low; accordingly, the trial judge did not err by entering judgment on the jury’s verdict. Pittman v. Dykes Timber Co., 18 So.3d 923, 2009 Miss. App. LEXIS 673 (Miss. Ct. App. 2009).

Trial court did not err in refusing to grant a judgment notwithstanding the verdict in a case involving the destruction of trees because it was within the province of the jury to believe the testimony of witnesses regarding who was responsible for the cutting; the evidence showed that a person not associated with a lumber company actually cut down some of the owner’s trees. Smith v. Parkerson Lumber, Inc., 888 So. 2d 1197, 2004 Miss. App. LEXIS 1149 (Miss. Ct. App. 2004).

In a case involving the destruction of trees, a trial court did not err in denying an owner’s motion for additur because the jury’s verdict was not unreasonable; the jury awarded the owner slightly more than double the costs of the trees cut, plus the cost of reforestation. Smith v. Parkerson Lumber, Inc., 888 So. 2d 1197, 2004 Miss. App. LEXIS 1149 (Miss. Ct. App. 2004).

In a case involving the destruction of trees, a trial court did not err in denying a motion for a new trial based on a failure to allow expert testimony because such testimony was not admissible to determine whether punitive damages were appropriate. Smith v. Parkerson Lumber, Inc., 888 So. 2d 1197, 2004 Miss. App. LEXIS 1149 (Miss. Ct. App. 2004).

In a case involving the destruction of trees, an owner was not permitted to recover for trespass, loss of enjoyment of use, and diminution in value because there was no evidence that the owner suffered any damages that were unrelated to the destruction of the trees, such as damage to roads, fences, other improvements, or to the soil. Smith v. Parkerson Lumber, Inc., 888 So. 2d 1197, 2004 Miss. App. LEXIS 1149 (Miss. Ct. App. 2004).

In a property owner’s trespass suit against a construction company, the trial court properly denied the property owner’s instruction on the statutory destruction of trees as the property owner failed to meet his burden of showing how many trees were cut. Teasley v. Buford, 876 So. 2d 1070, 2004 Miss. App. LEXIS 617 (Miss. Ct. App. 2004).

Where the property owner produced photographs clearly showing actual damage to the land from wrongful cutting, and testified to having examined all the stumps left on the property and measured 44 trees over 7 inches in diameter, and 172 trees under 7 inches that had been cut, the chancellor erred in finding that the trees were so small that they had no market value; Miss. Code Ann. §95-5-10(1) and (2) allowed, in part, for the cost of reforestation in such cases, and also for damages of $ 55 per tree for small diameter trees; consequently the chancellor’s decision was reversed, and the matter was remanded for further proceedings on the issue of damages, including possible punitive damages, and attorney’s fees or expert fees. Muirhead v. Vaughn, 878 So. 2d 1028, 2004 Miss. App. LEXIS 406 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 953 (Miss. 2004).

Miss. Code Ann. §95-5-10(1) does not require that the owner produce evidence of market value or reforestation costs. Muirhead v. Vaughn, 2004 Miss. App. LEXIS 1 (Miss. Ct. App. Jan. 6, 2004), op. withdrawn, sub. op., 878 So. 2d 1028, 2004 Miss. App. LEXIS 406 (Miss. Ct. App. 2004).

Although the landowners’ attorney was remiss in the presentation of evidence concerning damages, once the trial court was presented with clear evidence that the landowners owned the property and that the trees had been cut without their consent, the trial court was obliged to award damages in some form pursuant to Miss. Code Ann. §95-5-10(1); on remand, the trial court was to award damages to the landowners and consider whether punitive damages and attorney or expert fees under §95-5-10(2), (3) were warranted. Muirhead v. Vaughn, 2004 Miss. App. LEXIS 1 (Miss. Ct. App. Jan. 6, 2004), op. withdrawn, sub. op., 878 So. 2d 1028, 2004 Miss. App. LEXIS 406 (Miss. Ct. App. 2004).

Evidence was sufficient to convict defendant of attempted sexual battery of a female minor where the victim testified that defendant asked her to get into a car with him and to lie down in the back of the car, and asked her if “he was going to get him some sex,” and when they arrived at a hotel room, defendant announced to other men there that the victim was there to have sex with them. Quarles v. State, 863 So. 2d 987, 2004 Miss. App. LEXIS 2 (Miss. Ct. App. 2004).

Where the neighbor cited Miss. Code Ann. §95-5-10 as authority for the argument that any person who took a tree without the consent of the owner was liable in the amount double the fair market value of the tree, the neighbor was not entitled to such damages from the owner; the neighbor was not the owner of the parcel at issue, because the neighbor’s adverse possession claim under Miss. Code Ann. §15-1-13 failed. Scrivener v. Johnson, 861 So. 2d 1057, 2003 Miss. App. LEXIS 1196 (Miss. Ct. App. 2003).

The fair market value of timber was properly determined to be what it would sell for while standing in the woods, i.e., the amount received from the mill, the amount paid to the loggers, plus the amount paid to the owners. Cox v. F-S Prestress, Inc., 1999 Miss. App. LEXIS 719 (Miss. Ct. App. July 20, 1999).

7. Willfully or in conscious disregard.

Where plaintiffs successfully sued defendant for violating Miss. Code Ann. §95-5-10 by cutting down their trees, the trial court erred in granted them a directed verdict on statutory damages under §95-5-10(2), because defendant submitted evidence that he did not act willfully or in reckless disregard for their rights in doing so with testimony that he believed in good faith that he owned the property. Taylor v. Galloway, 105 So.3d 1160, 2012 Miss. App. LEXIS 825 (Miss. Ct. App. 2012).

As a “good faith” defense no longer existed in cases of timber trespass, the chancery court erred in finding that a logging company was not jointly and severally liable with the individuals for the timber trespass on the landowner’s property, and the chancery court should consider the issue of punitive damages under Miss. Code Ann. §95-5-10(2) on remand if the removing or deadening of trees was done willfully or in reckless disregard for the rights of the landowner. Moorehead v. Hudson, 888 So. 2d 459, 2004 Miss. App. LEXIS 748 (Miss. Ct. App. 2004).

In a landowner’s action against a lumber company for trespass and wrongful cutting of timber, the trial court erred in denying the landowner’s attempts to elicit testimony from the landowner’s expert and from the lumber company’s expert through cross-examination on whether it was reckless to cut timber before determining boundary lines, because that testimony was a crucial part of the evidence needed by the jury to determine whether the landowner should receive the statutory penalty under Miss. Code Ann. §95-5-10(2), and the testimony was admissible. Thus, reversal and a remand for new trial on the issue of penalties was necessary. Smith v. Parkerson Lumber, Inc., 2004 Miss. App. LEXIS 326 (Miss. Ct. App. Apr. 20, 2004), op. withdrawn, sub. op., 888 So. 2d 1197, 2004 Miss. App. LEXIS 1149 (Miss. Ct. App. 2004).

Wood cutters and the neighbor acted in reckless disregard, under Miss. Code Ann. §95-5-10, in cutting the landowners’ timber, because there was no barrier between the properties, and as a result, the neighbor should have provided a legal description of the property, and the wood cutter should have asked for a survey. Miller v. Pannell, 815 So. 2d 1117, 2002 Miss. LEXIS 33 (Miss. 2002).

8. Burden of proof.

Appellant property owners failed to prove that the appellee property owners had committed trespass by cutting timber on appellants’ property because appellants failed to prove that appellees had cut timber off their property. It was undisputed that appellees had cut timber, but appellants failed to prove the location of where the timber was cut and that the timber had belonged to appellants. Pulliam v. Bowen, 54 So.3d 331, 2011 Miss. App. LEXIS 88 (Miss. Ct. App. 2011).

9. Evidence.

Where appellant was sued under Miss. Code Ann. §95-5-10 for cutting trees on appellees’ land, his testimony that his father told him he would one day own the land was not hearsay to the extent that it was offered to prove that appellant had a good-faith reason to believe that he owned the property and thus was not liable for statutory damages under §95-5-10(2). However, he waived this argument by failing to present it to the trial court. Taylor v. Galloway, 105 So.3d 1160, 2012 Miss. App. LEXIS 825 (Miss. Ct. App. 2012).

Where appellant was sued under Miss. Code Ann. §95-5-10 for cutting trees on appellees’ land, his testimony that his father told him he would one day own the land was inadmissible hearsay.to the extent it was offered to prove the truth of the matter asserted–i.e., appellant’s ownership of the land. Taylor v. Galloway, 105 So.3d 1160, 2012 Miss. App. LEXIS 825 (Miss. Ct. App. 2012).

II. UNDER FORMER LAW.

11. In general.

Damages recovered under this section [Code 1942, § 1075] held excessive. Vicksburg Hardwood Co. v. Redditt, 241 Miss. 330, 130 So. 2d 848, 1961 Miss. LEXIS 351 (Miss. 1961).

Where the plaintiff had testified that no merchantable timber had been cut or removed by the defendant, and the plaintiff’s own estimate as to the damage that had been done to his merchantable timber on account of the alleged trespasses was $250, an award of $500 actual damages was not so improper as to require granting plaintiff a new trial on the question of damages alone. Strawbridge v. Day, 232 Miss. 42, 98 So. 2d 122, 1957 Miss. LEXIS 442 (Miss. 1957).

In a suit to recover actual value of trees cut on plaintiffs’ land without their consent and statutory penalty for cutting such trees, the accuracy of survey made by county surveyor, starting at an old recognized corner but not at a recognized corner established by the original government survey, was a question for a jury. Kelley v. Welborn, 217 Miss. 16, 63 So. 2d 413, 1953 Miss. LEXIS 407 (Miss. 1953).

In a suit to recover the actual value of trees cut on plaintiffs’ land without their consent, and statutory penalty for cutting such trees, the burden is upon the plaintiffs to show how many trees of each variety were cut before they can recover the statutory penalty. Kelley v. Welborn, 217 Miss. 16, 63 So. 2d 413, 1953 Miss. LEXIS 407 (Miss. 1953).

Instruction authorizing recovery of statutory penalty of $15.00 per tree for cutting hardwood trees without owner’s consent, without limiting recovery of such penalty to those hardwood trees enumerated in the statute was erroneous. Kelley v. Welborn, 217 Miss. 16, 63 So. 2d 413, 1953 Miss. LEXIS 407 (Miss. 1953).

In an action by landowner for wrongful cutting of his standing timber, where the owner testified that the timber was worth $1000 and also testified that he received some of the timber which he sold for $175, he was not entitled to preemptory instruction directing the jury to return a verdict for actual value of timber in the sum of $1000. Hudson v. Landers, 215 Miss. 447, 61 So. 2d 312, 1952 Miss. LEXIS 584 (Miss. 1952).

Conflicting evidence as to location of area referred to in timber deed reserving “all trees around the old home site in between present fences which lie in the shape of a V,” warranted jury in finding that the reserved area contended for by the plaintiffs was the correct one, in action to recover actual damages and statutory penalties for cutting such trees under this section. Floyd v. Williams, 198 Miss. 350, 22 So. 2d 365, 1945 Miss. LEXIS 205 (Miss. 1945).

Trial court did not abuse its discretion in not permitting jury to view the premises where ornamental trees reserved in timber deed had been cut and removed from the land, in action to recover actual damages and statutory penalties therefor, where diagrams, photographs, and testimony were sufficient to enable the jury to understand the respective contentions of the parties, notwithstanding that the photographs could not accurately disclose the number of trees cut and even though the plaintiffs joined with the defendant in the request for a view. Floyd v. Williams, 198 Miss. 350, 22 So. 2d 365, 1945 Miss. LEXIS 205 (Miss. 1945).

The allowance of a statutory penalty for trees cut on the land in question was improper, where at the time of the cutting the land was not designated as a homestead, and the notice not to cut trees upon the homestead contained no description of such homestead, nor was the homestead described in the affidavits prosecuting those who cut the trees. Robert G. Bruce Co. v. Spears, 187 Miss. 405, 187 So. 756, 1939 Miss. LEXIS 75 (Miss. 1939).

In a suit under this section [Code 1942, § 1075] for a statutory penalty plaintiff must show that the defendant cut the trees and the number of trees so cut. Rowan v. Beattie, 130 Miss. 449, 94 So. 232, 1922 Miss. LEXIS 218 (Miss. 1922).

Prior to the enactment of ch. 167 laws 1924 (Code 1942, § 1075), the owner could recover either the statutory penalty or the value of the trees cut, but not both. Roell v. Shields, 124 Miss. 226, 86 So. 763, 1920 Miss. LEXIS 503 (Miss. 1921).

The board of levee commissioners cannot be sued by a landowner to subject the fund procured by them by special taxation to the payment of the penalty provided for cutting trees on the land of another without his consent. Lowe v. Board of Levee Comm'rs, 19 So. 346 (Miss. 1896).

A telegraph company having the right of way over its line along a public road must be governed by its actual width. It cannot assume that there is a uniformly legal width of thirty feet and that it can cut trees anywhere within fifteen feet of the center. Clay v. Postal Tel. Co., 70 Miss. 406, 11 So. 658, 1892 Miss. LEXIS 66 (Miss. 1892).

If the plaintiff appeal to the circuit court from a justice of the peace, he may amend by adding to his demand more trees than sued for before the justice. McCleary v. Anthony, 54 Miss. 708, 1877 Miss. LEXIS 86 (Miss. 1877).

12. Construction and application, generally.

In an action based on §95-5-3 [repealed], a jury instruction stating that a person is required to take whatever precautions and safeguards as are reasonably necessary to assure himself or herself that he or she has the lawful authority to cut timber before he or she engages in the deliberate act of cutting or destroying a tree, properly stated the standard of care that is necessary for that person to claim the benefits of a good faith defense when it is alleged that he or she cut timber without authority on the property of another. Berry v. Player, 542 So. 2d 895, 1989 Miss. LEXIS 188 (Miss. 1989).

A landowner suing to recover statutory penalty for destruction of trees must show lack of good faith, gross negligence or willful misconduct on the part of the defendant in inflicting damages, but he is not further burdened to show with greater precision the amount of the damages than would be the case in an ordinary damage suit. Nichols v. Stacks, 485 So. 2d 1034, 1986 Miss. LEXIS 2413 (Miss. 1986).

A statute such as Code 1942, § 1075, creating a cause of action not known to the common law and fixing the time (Code 1942, § 1087) within which an action must be commenced thereunder is not a statute of limitation, but the right given thereby is a conditional one and the commencement of the action within the time fixed is a condition precedent to any liability under the statute. Evans v. Broadhead, 233 So. 2d 771, 1970 Miss. LEXIS 1667 (Miss. 1970).

Code 1942, § 744 allowing one to bring an action within one year after a previous action has been defeated for reasons other than upon the merits did not apply to that portion of the plaintiff’s suit which was founded on a cause of action created by Code 1942, § 1075, and therefore that portion of the suit which was founded on Code 1942, § 1075 and brought more than three years after the alleged destruction of trees, although within one year after defeat of the action for a reason other than upon its merits, was barred by the one-year period of limitations contained in Code 1942, § 1087. Evans v. Broadhead, 233 So. 2d 771, 1970 Miss. LEXIS 1667 (Miss. 1970).

Where the plaintiff sought damages under Code 1942, § 1075, but additionally sought damages by reason of an alleged trespass consisting of items other than the specific penalties given by Code 1942, § 1075, the one-year limitation stated in Code 1942, § 1087 was not applicable to those additional items. Evans v. Broadhead, 233 So. 2d 771, 1970 Miss. LEXIS 1667 (Miss. 1970).

The cutting of trees necessary to a survey which a utility is authorized by statute to make for the purpose of locating a transmission line does not subject it to the penalty prescribed by this section [Code 1942, § 1075]. Wood v. Mississippi Power Co., 245 Miss. 103, 146 So. 2d 546, 1962 Miss. LEXIS 536 (Miss. 1962).

The statutory remedy for trespass is not exclusive insofar as punitive damages are concerned. Day v. Hamilton, 237 Miss. 472, 115 So. 2d 300, 1959 Miss. LEXIS 493 (Miss. 1959).

This highly penal provision must be strictly construed. Lochridge v. Hannon, 236 Miss. 687, 112 So. 2d 234, 1959 Miss. LEXIS 363 (Miss. 1959).

The legislature never intended to base a recovery of the statutory penalty on a mere nonfeasance or omission to discharge a duty owing to another and this section [Code 1942, § 1075] indicates that it was intended to apply only to the wrongful cutting of the trees, or to some affirmative act on the part of the wrongdoer in cutting or destroying trees. Ginther v. Long, 227 Miss. 885, 87 So. 2d 286, 1956 Miss. LEXIS 768 (Miss. 1956).

Where the proof showed that the trustees of the graveyard took possession of the property by virtue of a deed, which was executed and delivered but which had become lost, and they have exercised dominion and control over it ever since, and the defendant with full notice of the claim went ahead and cut timber, the jury was fully warranted in imposing the statutory penalty provided for in this section [Code 1942, § 1075]. C. L. Gray Lumber Co. v. Pickard, 220 Miss. 419, 71 So. 2d 211, 1954 Miss. LEXIS 456 (Miss. 1954).

It does not follow, from the fact that under this section [Code 1942, § 1075] both actual and punitive damages may be recovered against a trespasser, that this rule applies under the statute providing for the recovery of double rent for a tenant’s holding over (Code 1942, § 947). Tepper Bros. v. Buttross, 178 Miss. 659, 174 So. 556, 1937 Miss. LEXIS 261 (Miss. 1937).

This section [Code 1942, § 1075] must be strictly construed in so far as statutory penalty for cutting trees is concerned. Murphy v. Seward, 145 Miss. 713, 110 So. 790, 1926 Miss. LEXIS 38 (Miss. 1926).

Chapter 167 Laws 1924 (Code 1942, § 1075) cannot be made to apply to a transaction taking place before its enactment. Fleming v. Dunigan Cooperage Co., 144 Miss. 769, 109 So. 851, 1926 Miss. LEXIS 363 (Miss. 1926).

This section [Code 1942, § 1075] affixes to a tree an arbitrary value without regard to its intrinsic value and is intended to partake both of the punishment for the trespass and of a remuneration for the tortious act. Ladnier v. Ingram Day Lumber Co., 123 Miss. 238, 85 So. 196, 1920 Miss. LEXIS 24 (Miss. 1920).

In order to recover the statutory penalties the plaintiff must show: (a) that the trees were cut on his land; (b) that they were cut without his consent; (c) that they were cut within twelve months before the suit was begun; (d) that they were cut by defendant or his agents or employees, acting within the scope of their employment or by the command or consent of their principal; (e) that the cutting was done wilfully or recklessly without proper precaution to prevent a trespass. Therrell v. Ellis, 83 Miss. 494, 35 So. 826, 1903 Miss. LEXIS 70 (Miss. 1904).

Carrying away a tree already cut or fallen is as much within the statute as cutting trees. Keystone Lumber & Improv. Co. v. McGrath, 21 So. 301 (Miss. 1897).

13. Effect of verbal permission to cut trees.

Where it was shown that the defendant was acting in good faith and under an oral agreement with the owner when he cut the storm-damaged timber, the defendant was not liable for the statutory penalty. Armstrong v. Trawick, 221 Miss. 367, 73 So. 2d 167, 1954 Miss. LEXIS 546 (Miss. 1954).

Act which would otherwise be trespass on real property may be justified on ground of license to use or enter such property, if at time of such act license is still unrevoked. Sansing v. Thomas, 205 Miss. 618, 38 So. 2d 706, 1949 Miss. LEXIS 451 (Miss. 1949).

Act of landowner in pointing out old fence line and authorizing defendant to cut trees up to that line constitutes license to cut trees up to that line and excuses and exempts defendant from all liability for actual damages and statutory penalty for all acts done within scope of license and for all trees cut before reaching fence line, even though fence line is not true property line as shown by later survey. Sansing v. Thomas, 205 Miss. 618, 38 So. 2d 706, 1949 Miss. LEXIS 451 (Miss. 1949).

In action of trespass for cutting and removing trees, instruction is reversibly erroneous which excludes from jury consideration of license, if any, granted by owner of land to defendant, and which deprives defendant of consideration by jury of this defense to all claims for actual value or statutory penalty for cutting trees. Sansing v. Thomas, 205 Miss. 618, 38 So. 2d 706, 1949 Miss. LEXIS 451 (Miss. 1949).

Although title to standing timber can be conveyed only by writing, yet a party is not subject to the penalty imposed in this section [Code 1942, § 1075] if he cuts timber by verbal permission. Fleming v. Dunigan Cooperage Co., 144 Miss. 769, 109 So. 851, 1926 Miss. LEXIS 363 (Miss. 1926).

An unwritten verbal license is a good defense to an action of trespass. Hicks v. Mississippi Lumber Co., 95 Miss. 353, 48 So. 624, 1909 Miss. LEXIS 233 (Miss. 1909).

14. Possession of and title to land.

A timber company acquired no right of possession by a timber deed executed by remaindermen while the life tenant still lived, and therefore could not maintain a suit for the actual value of the timber cut or to recover the statutory penalty. Jackson v. State, 314 So. 2d 346, 1975 Miss. LEXIS 1680 (Miss. 1975).

In an action involving a controversy over the title to land and the right to recover the actual value and the statutory penalty for the alleged wrongful cutting of timber thereon, since complainants’ evidence, together with all the reasonable inferences to be deduced therefrom, tended to establish their title by adverse possession, the court erred in sustaining the defendant’s motion to dismiss. Coaker v. Churchwell, 229 Miss. 369, 90 So. 2d 849, 1956 Miss. LEXIS 616 (Miss. 1956).

Where both parties to a suit for the recovery of the value of trees alleged to have been unlawfully cut and removed from land claimed to be the property of the plaintiff, and for statutory damages, undertook to establish title to the land by adverse possession, an issue of fact was raised, which was properly left with the jury. E. L. Bruce Co. v. Edwards, 192 Miss. 1, 3 So. 2d 846, 1941 Miss. LEXIS 2 (Miss. 1941).

A plaintiff must either prove title or the possession of the land from which the trees were cut in a suit for the cutting of trees. Houston Bros. v. Lenhart, 136 Miss. 841, 101 So. 289, 1924 Miss. LEXIS 114 (Miss. 1924).

A certificate issued to one in possession of public land claiming it as a homestead, under § 2290 U. S. Revised Statutes (43 USCS § 162, 9 AFCA title 43 § 162), constitutes title sufficient to support an action for cutting and removing timber from the land. Hiwannee Lumber Co. v. McPhearson, 95 Miss. 589, 49 So. 741, 1909 Miss. LEXIS 291 (Miss. 1909).

Possession of land with color of title by person claiming to be the owner is sufficient to sustain an action for the statutory penalty for cutting trees thereon. Carpenter v. Savage, 93 Miss. 233, 46 So. 537, 1908 Miss. LEXIS 92 (Miss. 1908).

After the defendant had sold the land to plaintiff, but before he had surrendered actual possession, he cut trees therefrom and is held liable to plaintiff for the statutory penalty under this section [Code 1942, § 1075]. Smith v. Forbes, 89 Miss. 141, 42 So. 382, 1906 Miss. LEXIS 44 (Miss. 1906).

To maintain trespass or debt for the statutory penalty in the commission of trespass in the cutting of trees, the plaintiff must have possession or title, and a plaintiff could not maintain such an action, where she showed no title in herself, because she showed none in the state, under which she derivatively claimed, and the lands were wild or vacant lands, unoccupied and uncleared. Darrill v. Dodds, 78 Miss. 912, 30 So. 4, 1901 Miss. LEXIS 151 (Miss. 1901).

Plaintiff in trespass for cutting trees is not entitled to recover where he shows neither a record, paper title nor a concurrence of possession and claim of ownership. Gathings v. Miller, 76 Miss. 651, 24 So. 964, 1898 Miss. LEXIS 120 (Miss. 1898).

That the defendant was in the adverse possession of the land under claim and color of title, when he cut the trees, is of itself no defense to the demand for the statutory penalty. Miller v. Wesson, 58 Miss. 831, 1881 Miss. LEXIS 49 (Miss. 1881).

Proof of the record title is sufficient without proof of possession, for the recovery of the statutory penalty, but in the absence of proof of the record title, both possession and claim of ownership must be shown. McCleary v. Anthony, 54 Miss. 708, 1877 Miss. LEXIS 86 (Miss. 1877).

Possession of land under claim and color of title by the plaintiff is sufficient title to enable him to recover the statutory penalty for cutting trees thereon, but possession alone is not. Dejarnett v. Haynes, 23 Miss. 600, 1852 Miss. LEXIS 270 (Miss. 1852); Ware v. Collins, 35 Miss. 223, 1858 Miss. LEXIS 32 (Miss. 1858); MHOON v. Greenfield, 52 Miss. 434, 1876 Miss. LEXIS 238 (Miss. 1876); McCleary v. Anthony, 54 Miss. 708, 1877 Miss. LEXIS 86 (Miss. 1877).

15. —Joint ownership.

In an action for trespass under this section [Code 1942, § 1075] plaintiff must prove that the cutting was without the consent of all the joint owners, as the consent of one would bar all. Bollinger-Franklin Lumber Co. v. Tullos, 124 Miss. 855, 87 So. 486, 1921 Miss. LEXIS 191 (Miss. 1921).

To recover the statutory penalty there must be proof of nonconsent of all owners. Bollinger-Franklin Lumber Co. v. Tullos, 124 Miss. 855, 87 So. 486, 1921 Miss. LEXIS 191 (Miss. 1921).

The right of tenants in common of land to sue for the statutory penalty is joint and whatever bars one will bar all. Haley v. Taylor, 77 Miss. 867, 28 So. 752, 1900 Miss. LEXIS 58 (Miss. 1900).

The right of tenants in common to sue for trespass to land is joint and the quantum of damages which one may recover is the quantum to which each of the others will be limited. Haley v. Taylor, 77 Miss. 867, 28 So. 752, 1900 Miss. LEXIS 58 (Miss. 1900).

16. —Tax title holder.

Claimant to land under a void tax title had no interest in the land or the timber thereon, and therefore was not entitled to statutory penalties for the cutting of certain trees. Thompson v. Reed, 199 Miss. 129, 23 So. 2d 888, 1945 Miss. LEXIS 276 (Miss. 1945).

Under this section [Code 1942, § 1075] the holder of the tax title is not authorized to recover the statutory penalty before the period of redemption has expired and the owner intends to redeem it before the expiration of the time. Murphy v. Seward, 145 Miss. 713, 110 So. 790, 1926 Miss. LEXIS 38 (Miss. 1926).

The tax title holder who enters on land without the delinquent owner’s consent before expiration of redemption period is a trespasser. But a delinquent owner who cuts timber on land sold for taxes with a bona fide intention to redeem the land is not subject to the penalty. Murphy v. Seward, 145 Miss. 713, 110 So. 790, 1926 Miss. LEXIS 38 (Miss. 1926).

17. Good faith cutting of trees.

Where defendant acted in good faith in cutting and removing timber from lands under a claim which defendant felt it had the legal right to assert, plaintiffs are not entitled to recover the statutory penalty for which provision is made in § 1075, Code of 1942. Wineman v. Shannon Bros. Lumber Co., 368 F. Supp. 652, 1973 U.S. Dist. LEXIS 11839 (N.D. Miss. 1973).

In an action based on §95-5-3 [repealed], a jury instruction which provided no definition of good faith but merely stated that good faith, however it was defined, would be defined in an objective, as opposed to a subjective, manner, was proper. Berry v. Player, 542 So. 2d 895, 1989 Miss. LEXIS 188 (Miss. 1989).

To establish a good faith defense, a party must show that, before cutting or destroying trees, he took reasonable precautions and safeguards to assure himself that he had lawful authority to do so. Grisham v. Hinton, 490 So. 2d 1201, 1986 Miss. LEXIS 2480 (Miss. 1986).

Aged defendant’s sincere belief, predicated on many years of familiarity with the land, that 2 surveyors hired by her had mistakenly fixed the boundaries of the tract, would not establish a good faith defense to an action for cutting trees thereon. Grisham v. Hinton, 490 So. 2d 1201, 1986 Miss. LEXIS 2480 (Miss. 1986).

In an action under this section [Code 1942, § 1075], the burden is on defendant to establish good faith. L & A Contracting Co. v. Hube, 241 Miss. 710, 133 So. 2d 394, 1961 Miss. LEXIS 388 (Miss. 1961).

One from whom it is sought to recover the statutory penalty for unlawfully cutting timber is entitled to go to the jury on the issue of good faith where he claimed to have been clearing land for a highway then being constructed and that he had told his men to cut only as directed by the highway contractor, although he admitted on cross-examination that he did not know to whom the property belonged and had made no effort to find out, and had not gone to the courthouse to inquire about the title. Dearman v. Partridge, 239 Miss. 611, 124 So. 2d 680, 1960 Miss. LEXIS 330 (Miss. 1960).

“Good faith,” as used in this section [Code 1942, § 1075] denotes honesty of purpose, freedom from intention to defraud or deprive others of rights or property to which in equity and good conscience they are entitled. Strawbridge v. Day, 232 Miss. 42, 98 So. 2d 122, 1957 Miss. LEXIS 442 (Miss. 1957).

While the plaintiff, in order to recover the statutory penalty for wrongful cutting of timber, is only required to show that the timber belonged to him, and that the timber was cut by the defendant, his agents or employees, without plaintiff’s consent, the defendant may establish good faith as an affirmative defense to plaintiff’s claim for the statutory penalty, and in making such defense the defendant is not required to prove freedom of negligence, but only that the trespass was not wilful, or did not result from wantonness or recklessness. Strawbridge v. Day, 232 Miss. 42, 98 So. 2d 122, 1957 Miss. LEXIS 442 (Miss. 1957).

Where the defendant’s testimony as to his own good faith in cutting timber was not contradicted, and the plaintiff admitted that no merchantable timber had been cut, the court properly refused to peremptorily instruct for the plaintiff on the question of statutory penalty even though the plaintiff had testified that after he had warned defendant’s workmen not to cross his line and deaden any timber on his land, some trees on his land had been poisoned, but made no showing of the kind or how many trees, if any, had been poisoned after the warning. Strawbridge v. Day, 232 Miss. 42, 98 So. 2d 122, 1957 Miss. LEXIS 442 (Miss. 1957).

In an action for actual value and statutory penalty for wrongful cutting of timber, the owner of timber makes out a prima facie case out of his right to recover the penalty when he shows that he owns the timber and that the defendant or his representative cut it without his consent and if the defendant pleads good faith as an affirmative defense, he may then offer evidence to that effect. Reynolds v. McGehee, 220 Miss. 750, 71 So. 2d 780, 1954 Miss. LEXIS 491 (Miss. 1954).

In order to have recovery of the statutory penalty for cutting trees without owner’s consent, a good faith is an affirmative defense which must be pleaded and established by defendant. Kelley v. Welborn, 217 Miss. 16, 63 So. 2d 413, 1953 Miss. LEXIS 407 (Miss. 1953).

Purchaser of timber acting in good faith is not required to make survey to be relieved of statutory penalty for cutting over line. Seward v. West, 168 Miss. 376, 150 So. 364, 1933 Miss. LEXIS 170 (Miss. 1933).

Evidence of a purchase by defendant of the timber from the occupant of the land and the latter’s declaration at the time of his right to sell are admissible on the question of good faith in a suit by the owner for the statutory penalty. Haley v. Taylor, 77 Miss. 867, 28 So. 752, 1900 Miss. LEXIS 58 (Miss. 1900).

18. Wilfulness or negligence.

Evidence made out a case of willful, wanton and deliberate trespass upon plaintiff’s property, so as to support a jury award of statutory and punitive damages pursuant to §95-5-3, where the overwhelming evidence indicated that defendant’s employees went upon plaintiff’s land without permission and in violation of his express admonition for them not to run a seismographic line until he had given his permission, that the employees went upon the land several times in complete and willful disregard of those instructions, that they took lines, heavy equipment and material for running a line approximately one-half mile across the property, that two of the employees had been arrested and charged with trespass, that, subsequently, other employees again went upon the land without permission, and that they had cut and destroyed 201 trees, 75 percent of which were of commercial value. Seismic Petroleum Services, Inc. v. Ryan, 450 So. 2d 437, 1984 Miss. LEXIS 1726 (Miss. 1984).

Evidence that when the defendants obtained their timber deed, the grantees therein had pointed out to them an old fence line as the correct boundary line, and defendants had cut only to this line until the injunction was served upon them, and thereupon defendants notified their cutters and other employees not to cut any more timber in the area until the dispute over the boundary line was settled, failed to establish the wilful cutting of the trees by the defendants, and complainants were not entitled to the statutory penalty. Mabry v. Winding, 229 Miss. 88, 90 So. 2d 175, 1956 Miss. LEXIS 589 (Miss. 1956).

In an action by landowner for wrongful cutting of his standing timber, in absence of showing that wilful wrong was committed in cutting the timber or that there was connection therewith, such gross negligence or such real indifference, or such lack of good faith as to be tantamount to wilfulness, the statutory penalty should not be allowed. Hudson v. Landers, 215 Miss. 447, 61 So. 2d 312, 1952 Miss. LEXIS 584 (Miss. 1952).

Where the testimony shows that trespass to have been wilful, the statutory penalty may be allowed. Odom v. Luehr, 213 Miss. 782, 57 So. 2d 867, 1952 Miss. LEXIS 425 (Miss. 1952).

In an action for statutory penalty for wrongful cutting of timber and also to recover value of trees, evidence that the plaintiff notified the defendant in writing not to cut the timber and gave him a description by metes and bounds of land she claimed to own, the defendant disregarding the notice proceeding to cut the trees, was sufficient to warrant the jury in finding that the cutting was wilful, or defendant’s negligence so gross, or his indifference to the true boundaries so real, as to be tantamount to wilfulness. Sansing v. Thomas, 211 Miss. 727, 52 So. 2d 478, 1951 Miss. LEXIS 400 (Miss. 1951).

In an action for damages for wrongful cutting of timber, the statutory penalty will be allowed only where the facts are well proved and where the testimony shows the trespass to have been wilful, or the negligence so gross or the indifference so real or the lack of good faith so evident, as to be tantamount to wilfulness. Pippin v. Sims, 211 Miss. 194, 51 So. 2d 272, 1951 Miss. LEXIS 348 (Miss. 1951).

Mere recklessness is not enough to justify imposition of statutory penalty, but rather there must be degree of recklessness so gross as to constitute wilfulness. Howse v. Russell, 210 Miss. 57, 48 So. 2d 628, 1950 Miss. LEXIS 320 (Miss. 1950), modified, 210 Miss. 57, 49 So. 2d 809, 1951 Miss. LEXIS 265 (Miss. 1951).

Defendant was not guilty of such reckless conduct as to justify imposition of statutory penalty where he cut trees on land between fence and true dividing line which had become plaintiff’s by adverse possession after survey proposed by defendant and agreed to by plaintiff had disclosed true line, and where plaintiff had not disclosed he would not abide by such line. Howse v. Russell, 210 Miss. 57, 48 So. 2d 628, 1950 Miss. LEXIS 320 (Miss. 1950), modified, 210 Miss. 57, 49 So. 2d 809, 1951 Miss. LEXIS 265 (Miss. 1951).

Infliction of statutory penalty will only be allowed where facts are well proved and where testimony shows trespass to have been wilful, or shows negligence so gross, or indifference so real, or lack of good faith so evident, as to be tantamount to wilfulness. Howse v. Russell, 210 Miss. 57, 48 So. 2d 628, 1950 Miss. LEXIS 320 (Miss. 1950), modified, 210 Miss. 57, 49 So. 2d 809, 1951 Miss. LEXIS 265 (Miss. 1951).

Where grantor in timber deed reserving trees around home site was to mark the reserved trees, and did so mark 50 of them, but 41 of them were cut by defendant’s employees over grantor’s protest and according to defendant’s instructions, finding was justified that the cutting was wilfully done without proper precaution to prevent trespass. Floyd v. Williams, 198 Miss. 350, 22 So. 2d 365, 1945 Miss. LEXIS 205 (Miss. 1945).

The statutory penalty for cutting timber on another’s property will be allowed only where the facts are well proved, and where the testimony shows the trespass to have been wilful, or the negligence so gross, or the indifference so real, or the lack of good faith so evident, as to be tantamount to wilfulness. Hays v. Lyon, 192 Miss. 858, 7 So. 2d 523, 1942 Miss. LEXIS 57 (Miss. 1942).

Where one of two adjoining owners, having blazed a trail beyond the line fence, asserting ownership as far as the trail, proceeded through his employees to cut timber in the disputed area, and his agent, when the other owner called his attention to the line fence, which was being torn down in the work, replied that he didn’t care a damn about the fence, and the next day when the other owner again appeared, with authority from his principal, told such owner to get back to the other side of the blazed trail, a determination that the trespasser was liable for the statutory penalty was justified. Hays v. Lyon, 192 Miss. 858, 7 So. 2d 523, 1942 Miss. LEXIS 57 (Miss. 1942).

Statutory damages for cutting trees on the land of another may be allowed only when the proof shows that the cutting was wilful, which implies both knowledge and intent, or a degree of recklessness so gross as to constitute wilfulness. Mere mistake or carelessness is not enough. E. L. Bruce Co. v. Edwards, 192 Miss. 1, 3 So. 2d 846, 1941 Miss. LEXIS 2 (Miss. 1941).

Where, in a suit for the recovery of the value of trees alleged to have been unlawfully cut and removed from land claimed to be the property of the plaintiff, and for statutory damages, the evidence was unsatisfactory as to establishment of title to the land itself, and there was sufficient justification for claim by either party, and the defendant, upon protest by the plaintiff, resumed cutting only after what it plausibly considered was a verification by survey of the calls of the deed, the plaintiff, upon the jury finding him to be the rightful owner, was entitled to recover the value of the trees, but not statutory damages. E. L. Bruce Co. v. Edwards, 192 Miss. 1, 3 So. 2d 846, 1941 Miss. LEXIS 2 (Miss. 1941).

Evidence did not show that purchaser of timber cutting over line did so wilfully or with such gross negligence or indifference or want of good faith as to be tantamount to wilfulness so as to be liable for statutory penalty. Seward v. West, 168 Miss. 376, 150 So. 364, 1933 Miss. LEXIS 170 (Miss. 1933).

Statutory penalty for cutting another’s timber should be allowed only in case of culpable fault or omission; “culpable” being that which is deserving of moral blame. Seward v. West, 168 Miss. 376, 150 So. 364, 1933 Miss. LEXIS 170 (Miss. 1933).

Statutory penalty for cutting another’s timber will be allowed only where facts are well proved and where testimony shows trespass to have been wilful or negligence so gross or indifference so real or lack of good faith so evident as to be tantamount to wilfulness. Seward v. West, 168 Miss. 376, 150 So. 364, 1933 Miss. LEXIS 170 (Miss. 1933).

Vendor of timber held not liable for statutory penalty for purchaser’s wrongfully cutting over line, where vendor did not authorize such cutting and had no legal control over cutting. Seward v. West, 168 Miss. 376, 150 So. 364, 1933 Miss. LEXIS 170 (Miss. 1933).

An instruction may state that the burden of proof is on the plaintiff to show that defendant cut trees on plaintiff’s land wilfully or with culpable negligence in failing to ascertain the boundaries thereof, and this does not contradict plaintiff’s instruction that the burden of proof was on defendant to show he cut the trees by mistake while in the observance of reasonable care. Rector v. Shippey, Outzen & Co., 93 Miss. 254, 46 So. 408, 1908 Miss. LEXIS 80 (Miss. 1908).

Where a telephone company had maintained its line and cut out undergrowth along it for seven years before plaintiff acquired title to the property by descent, the telephone company’s act in cutting away such small growth as interfered with the wires thereafter did not constitute a wilful or malicious cutting for which plaintiff could recover statutory penalties. Cumberland Tel. & Tel. Co. v. Martin, 93 Miss. 505, 46 So. 247, 1908 Miss. LEXIS 71 (Miss. 1908).

The defendant is not liable for statutory damages for wilful trespass in cutting trees when he does so relying on the unauthorized decision of a de facto tribunal. Lusby v. Kansas C., M. & B. R. Co., 73 Miss. 360, 19 So. 239, 1895 Miss. LEXIS 160 (Miss. 1895).

One negligently failing to acquaint himself with the boundary line of his own land who employs another, though an independent contractor, to cut trees near the line on land which he points out as his own, but which turns out to be beyond the line on the land of a third person, is a negligent co-trespasser and liable for the statutory penalty. Crisler v. Ott, 72 Miss. 166, 16 So. 416, 1894 Miss. LEXIS 90 (Miss. 1894).

A telegraph company is liable if its laborers clearing its right of way cut trees on adjoining land of another, although done contrary to the positive orders of the superintendent, if it resulted from the negligence of the latter in absenting himself and in trusting the work to ordinary laborers without supervision. Clay v. Postal Tel. Co., 70 Miss. 406, 11 So. 658, 1892 Miss. LEXIS 66 (Miss. 1892).

What is proper care to avoid the trespass depends upon the facts of each case. A person acting in good faith is not required to survey the land or resort to unusual or troublesome means to ascertain boundaries not plainly visible, but he cannot turn his employees loose in a forest with nothing to guide them save an indefinite command to cut trees only on his own land. Keirn v. Warfield, 60 Miss. 799, 1883 Miss. LEXIS 15 (Miss. 1883).

The statutory penalty is recoverable only in cases of wilful trespass or of neglect to take proper care and caution to avoid the trespass. Perkins v. Hackleman, 26 Miss. 41, 1853 Miss. LEXIS 38 (Miss. 1853); MHOON v. Greenfield, 52 Miss. 434, 1876 Miss. LEXIS 238 (Miss. 1876); McCleary v. Anthony, 54 Miss. 708, 1877 Miss. LEXIS 86 (Miss. 1877); Keirn v. Warfield, 60 Miss. 799, 1883 Miss. LEXIS 15 (Miss. 1883).

19. Mistake.

The statutory penalty is not recoverable from one who cut trees in the belief that they were included in a sale to him. Lochridge v. Hannon, 236 Miss. 687, 112 So. 2d 234, 1959 Miss. LEXIS 363 (Miss. 1959).

The statutory penalty and punitive damages were not allowable for cutting trees on complainant’s land, where the evidence showed that both parties claimed title from a common grantor and that, while the land was entered and part of the trees were cut by defendants after they had been informed that the complainant claimed to own the land, this was done under the honest mistake and reasonable belief that the land belonged to one of the defendants. Anderson-Tully Co. v. Campbell, 193 Miss. 790, 10 So. 2d 445, 1942 Miss. LEXIS 146 (Miss. 1942).

Where defendant’s employees in his absence ignorantly cut trees on plaintiff’s land supposing they belonged to defendant, the defendant will not be liable for the statutory penalty. Smith v. Saucier, 40 So. 328 (Miss. 1906).

The defendant may defeat a recovery under the statute by showing that the trees were cut through accident, inadvertence, or mistake, and that reasonable care was taken to avoid the same. The burden of proving this is upon the defendant. Keirn v. Warfield, 60 Miss. 799, 1883 Miss. LEXIS 15 (Miss. 1883).

But if a party intending to trespass on public land through mistake cut down trees on the land of another, he is liable to the penalty imposed by the statute. Perkins v. Hackleman, 26 Miss. 41, 1853 Miss. LEXIS 38 (Miss. 1853).

20. Trees between street and sidewalk.

Where the removal of shade trees from a street is necessary to improve the highway, a municipality may remove such trees out of the street without being liable for damage, but it will be liable if their removal was unnecessary and arbitrary. Town of Durant v. Castleberry, 106 Miss. 699, 64 So. 657, 1914 Miss. LEXIS 9 (Miss. 1914).

A telephone company cutting trees between the street and the sidewalk and belonging to the adjacent lot owner is liable for damages under this section [Code 1942, § 1075]. A plaintiff who is in possession of land under color of title is entitled to recover the value of the timber cut by defendant without authority from the owner of the outstanding title and who made no claim to the land. Ingram-Day Lumber Co. v. Cuevas, 104 Miss. 32, 61 So. 4 (Miss. 1913).

A city is without authority to authorize a telephone company or other person to damage or destroy trees standing between the street and the sidewalk, which trees belong to adjacent property owners, but compensation will first have to be made to the owner. A city may remove trees thus situated if they destroy the free use of the street, by making compensation. Brahan v. Meridian Home Tel. Co., 97 Miss. 326, 52 So. 485, 1910 Miss. LEXIS 242 (Miss. 1910).

21. Liability for agent’s acts.

Where defendant’s employees in his absence ignorantly cut trees on plaintiff’s land supposing they belonged to defendant, the defendant will not be liable for the statutory penalty. Smith v. Saucier, 40 So. 328 (Miss. 1906).

A telegraph company is liable if its laborers clearing its right of way cut trees on adjoining land of another, although done contrary to the positive orders of the superintendent, if it resulted from the negligence of the latter in absenting himself and in trusting the work to ordinary laborers without supervision. Clay v. Postal Tel. Co., 70 Miss. 406, 11 So. 658, 1892 Miss. LEXIS 66 (Miss. 1892).

A telegraph company so trespassing will be liable although the evidence shows that the trees cut were small, not exceeding six or eight inches in diameter, and it is error to allude to them in instructions as shrubs or undergrowth. Clay v. Postal Tel. Co., 70 Miss. 406, 11 So. 658, 1892 Miss. LEXIS 66 (Miss. 1892).

A person who is engaged in the construction of a building which is under the supervision of his agent and who instructs the agent to get the necessary timber from the principal’s own land, which is well defined, is not liable for the statutory penalty for trees wilfully cut on land of another by mere laborers employed by the agent to get the timber, who were instructed by the agent to cut only on the principal’s land. Fairchild v. New Orleans & N. E. R. Co., 60 Miss. 931, 1883 Miss. LEXIS 39 (Miss. 1883).

Where a plaintiff proves that he informed the defendant before the cutting of timber, of the location of the plaintiff’s land, the defendant, in rebuttal of liability, may prove by the same witness that he at the same time instructed his choppers not to fell trees thereon. McCleary v. Anthony, 54 Miss. 708, 1877 Miss. LEXIS 86 (Miss. 1877).

22. Recovery of statutory penalties and actual and punitive damages.

On cross appeal from a decree of adverse possession, awarding title to land to parties in possession and assessing damages for fence and trees destroyed by the claimant, the chancellor’s statutory penalty award of $525, or $25 for each of 35 destroyed trees, was reversed and rendered to increase that penalty to $1,925, pursuant to §95-5-3 [repealed], as amended. Eason v. Hudson, 498 So. 2d 836, 1986 Miss. LEXIS 2872 (Miss. 1986).

Evidence supported punitive damages jury award in trespass action against oil company which, after minimal title check of property in the area, went on land, without owner’s permission, to conduct seismic exploration, and damaged or destroyed several hundred trees, brought in heavy machinery, and made roads in a meandering or weaving fashion. Shell Oil Co. v. Murrah, 493 So. 2d 1274, 1986 Miss. LEXIS 2613 (Miss. 1986).

Defendants who established their good faith and who received no financial benefit from the cutting of the timber were not liable for statutory damages. Moore v. Boutwell, 315 So. 2d 921, 1975 Miss. LEXIS 1703 (Miss. 1975).

The statutory penalty provided for by Code 1972 §95-5-3 will be allowed only where the facts are well proved and where the testimony shows the trespass to have been wilful, or the negligence so gross, or the indifference so real, or the lack of good faith so evident, as to be tantamount to wilfulness. Rutland v. Corley, 287 So. 2d 433, 1973 Miss. LEXIS 1333 (Miss. 1973).

The statutory penalties under § 1075, Code 1942, will be denied when the party cutting the trees on lands of another was acting in good faith and under the belief that the lands in question were its own. Wineman v. Shannon Bros. Lumber Co., 368 F. Supp. 652, 1973 U.S. Dist. LEXIS 11839 (N.D. Miss. 1973).

This section [Code 1942, § 1076] gives no right to recover actual damages for the destruction of ornamental trees, but provides only a penalty. Urban Renewal Agency v. Tackett, 255 So. 2d 904, 1971 Miss. LEXIS 1298 (Miss. 1971).

Compensatory damages may not be awarded in an action to recover the statutory penalty. Wood v. Mississippi Power Co., 245 Miss. 103, 146 So. 2d 546, 1962 Miss. LEXIS 536 (Miss. 1962).

Where plaintiff could have brought suit for a statutory penalty and for value of timber and for damages, as a single cause of action, but elected to sue first in county court only for the unpaid balance of actual value of timber which the defendant lumber company had withheld at the time of settlement of demand note, the county court judgment is res judicata as to any other cause of action for timber wrongfully cut and hauled away. Duett v. Pine Mfg. Co., 209 Miss. 830, 48 So. 2d 490, 1950 Miss. LEXIS 448 (Miss. 1950).

Where a lumber company advanced money to the plaintiff for the purchase of tract of timber and it was agreed that the plaintiff would cut the timber into logs and deliver the logs to the plant where the company was to manufacture the logs into lumber and pay the plaintiff and the plaintiff alleged that the company unlawfully cut timber and he brought action in county court to recover for the cost of cutting and removing logs, the plaintiff split his cause of action when he brought suit in circuit court for statutory penalty for wrongfully cutting logs, for value of logs and for other damages to his timber tract. Duett v. Pine Mfg. Co., 209 Miss. 830, 48 So. 2d 490, 1950 Miss. LEXIS 448 (Miss. 1950).

It was intention of legislature to authorize bringing of suit for both statutory penalty and actual damages, and that they together should constitute one cause of action which need not be placed in separate counts. Duett v. Pine Mfg. Co., 209 Miss. 830, 48 So. 2d 490, 1950 Miss. LEXIS 448 (Miss. 1950).

Under this section [Code 1942, § 1075] owner can recover both actual damages and statutory penalties in a proper case. Floyd v. Williams, 198 Miss. 350, 22 So. 2d 365, 1945 Miss. LEXIS 205 (Miss. 1945).

Owners were entitled to recover under this section [Code 1942, § 1075] both actual damages and statutory penalties for cutting ornamental trees reserved in a timber deed. Floyd v. Williams, 198 Miss. 350, 22 So. 2d 365, 1945 Miss. LEXIS 205 (Miss. 1945).

Error in overruling defendant’s motion requiring plaintiffs to elect whether to seek recovery of actual damages or the statutory penalties for cutting ornamental trees on declaration predicated upon Code 1942, § 1076, was cured when plaintiffs amended their declaration so as to seek recovery of both actual damages and statutory penalties of $15 per tree as authorized by this section. Floyd v. Williams, 198 Miss. 350, 22 So. 2d 365, 1945 Miss. LEXIS 205 (Miss. 1945).

Statutory penalty and actual damages for cutting or deadening trees may be embraced in same count. A declaration alleging actual damages for cutting trees at $200.00 and statutory penalty claimed at $1800.00 in the same count is not subject to demurrer on the ground that the actual damages are less than the circuit court can take jurisdiction of. Fleming v. Dunigan Cooperage Co., 144 Miss. 769, 109 So. 851, 1926 Miss. LEXIS 363 (Miss. 1926).

The plaintiff may declare for the statutory penalty in one count and the actual value under another in an action for trespass under this section [Code 1942, § 1075], and should not be required to elect on which he will go to the jury, but is entitled to submit his case on both counts. Batson-McGehee Co. v. Smith, 134 Miss. 222, 98 So. 534, 1924 Miss. LEXIS 248 (Miss. 1924).

In order to recover the statutory penalties the plaintiff must show: (a) that the trees were cut on his land; (b) that they were cut without his consent; (c) that they were cut within twelve months before the suit was begun; (d) that they were cut by defendant or his agents or employees, acting within the scope of their employment or by the command or consent of their principal; (e) that the cutting was done wilfully or recklessly without proper precaution to prevent a trespass. Therrell v. Ellis, 83 Miss. 494, 35 So. 826, 1903 Miss. LEXIS 70 (Miss. 1904).

23. Damages.

The court properly calculated the fair market of timber by adding together the amount received from the mill, the amount paid to the loggers, and the amount paid to the defendants; the court rejected the contention that the price paid to the defendant was the fair market value contemplated by this section. Cox v. F-S Prestress, Inc., 1999 Miss. App. LEXIS 479 (Miss. Ct. App. July 20, 1999), rev'd, 797 So. 2d 839, 2001 Miss. LEXIS 4 (Miss. 2001).

Cross References —

Punishment for malicious mischief, see §97-17-67.

Criminal penalty for boxing pine trees, see §97-17-79.

JUDICIAL DECISIONS

1. In general.

To incur the penalty under this section [Code 1942, § 1081] for boxing trees, the boxing must not only be done without the consent of the owner of the land or of the trees but also wilfully or recklessly. Ladnier v. Ingram Day Lumber Co., 135 Miss. 632, 100 So. 369, 1924 Miss. LEXIS 67 (Miss. 1924).

A continuing trespass may be enjoined. Ladnier v. Ingram Day Lumber Co., 135 Miss. 632, 100 So. 369, 1924 Miss. LEXIS 67 (Miss. 1924).

Tender of damages, which did not include cost to date, is insufficient although plaintiff did not recover more than the amount tendered. Louis Cohn & Bros. v. Lovell Lumber Co., 135 Miss. 716, 100 So. 188, 1924 Miss. LEXIS 57 (Miss. 1924).

The company owning the standing timber under warranty deed granting only a right to ingress and egress to cut down and remove same, could not enter the land, box the trees for turpentine, and burn off the brush. Rogers v. Lumber Mineral Co., 115 Miss. 339, 76 So. 145 (Miss. 1917).

The owner of trees from which has been extracted turpentine without his consent may recover amount of damage inflicted on the trees in the process of extraction or he may recover the products or their value or the amount of any actual damage unnecessarily inflicted on the trees. Hines v. Imperial Naval Store Co., 101 Miss. 802, 58 So. 650, 1911 Miss. LEXIS 176 (Miss. 1911).

A certificate from the register of the land office of the location of public lands vests sufficient title in the person to whom the certificate is granted to enable him to maintain an action thereon against the trespasser, and the certificate is admissible as evidence of title. Johnson v. Davis, 91 Miss. 708, 45 So. 979, 1907 Miss. LEXIS 207 (Miss. 1907).

Actual possession of the land and ownership of the trees entitles plaintiff to maintain an action of trespass. Harrison Naval Stores Co. v. Johnson, 91 Miss. 747, 45 So. 465, 1907 Miss. LEXIS 181 (Miss. 1907).

Editor’s Notes —

Former §95-5-17 was entitled: By sheep-killing dogs and hogs.

RESEARCH REFERENCES

Am. Jur.

4 Am. Jur. 2d, Animals §§ 62 et seq.

CJS.

3B C.J.S., Animals §§ 328 et seq.

Cross References —

Restitution to owner for malicious injury or death of certain animals, see §97-41-15.

RESEARCH REFERENCES

ALR.

Who “harbors” or “keeps” dog under animal liability statute. 64 A.L.R.4th 963.

Attorneys’ fees: cost of services provided by paralegals or the like as compensable element of award in state court. 73 A.L.R.4th 938.

JUDICIAL DECISIONS

1. Damages.

There was ample evidence to support the damage award due to dogs entering a property owner’s land and killing the owner’s cattle because the owner provided evidence of the cows’ value; a manager of a stockyard also testified as to value of various cattle. Walker v. May, 166 So.3d 613, 2015 Miss. App. LEXIS 349 (Miss. Ct. App. 2015).

Cross References —

Criminal penalty for severing and converting fixtures, see §97-17-47.

Punishment for malicious mischief, see §97-17-67.

OPINIONS OF THE ATTORNEY GENERAL

If a surety meets its obligation by having a defendant in court at the appointed time, the surety should be discharged from any further obligation, such as insuring the defendant pays a fine. 1998 Miss. Op. Att'y Gen. 778.

RESEARCH REFERENCES

ALR.

Interest on damages for period before judgment for injury to, or detention, loss, or destruction of, property. 36 A.L.R.2d 337.

Propriety of awarding joint custody of children. 17 A.L.R.4th 1013.

Law Reviews.

Dowd, Defining the Doctrine of Equitable Distribution in Mississippi: A Rebuttable Presumption that Homemaking Services are as Valuable to the Acquisition of Marital Property as Breadwinning Services. 16 Miss. C. L. Rev. 479, Spring 1996.

JUDICIAL DECISIONS

1. In general.

A contract between a railroad and a milling company, whereby the railroad company built a spur track on ground furnished by the milling company and connecting with its mill, was binding upon the assignee of the milling company, and such assignee could not recover the statutory penalty under this section [Code 1942, § 1085] for the destruction of a fence which the assignee had constructed across the spur track. Illinois C. R. Co. v. Sanders, 93 Miss. 107, 46 So. 241, 1908 Miss. LEXIS 66 (Miss. 1908).

There was a fatal variance between an allegation that the defendant tore down a house situated in block eight, and proof that the house was situated in block nine. Martin v. State, 89 Miss. 633, 42 So. 601, 1906 Miss. LEXIS 58 (Miss. 1906).

Cross References —

Forest fires as nuisance, see §49-19-25.

Mississippi Prescribed Burning Act not to limit civil or criminal liability provided for in this section, see §49-19-307.

Criminal penalty for firing of woods, see §97-17-13.

Charging the grand jury, see Miss. Uniform Rules of Circuit and County Court Practice, Rule 7.01.

RESEARCH REFERENCES

ALR.

Liability for spread of fire purposely and lawfully kindled. 24 A.L.R.2d 241.

Liability of one negligently causing fire for personal injuries sustained in attempt to control fire or to save life or property. 42 A.L.R.2d 494.

Liability of property owner for damages from spread of accidental fire originating on property. 17 A.L.R.5th 547.

Am. Jur.

35A Am. Jur. 2d, Fires §§ 7 et seq.

12 Am. Jur. Pl & Pr Forms (Rev), Fires, Forms 31, 32, 36, 37 (complaint or declaration for damages caused by failure to tend fire intentionally kindled); Form 38.1 (complaint, petition, or declaration – allegation – failure to tend fire intentionally kindled – specific acts of negligence); Form 42 (instruction to jury on liability for spread of fire lawfully kindled); Form 51, 52 (complaint or declaration for damages for loss caused by fire set in violation of statute); Form 54 (instruction to jury on liability for spread of fire kindled in violation of statute).

CJS.

36A C.J.S., Fires §§ 8 et seq.

Law Reviews.

Ogletree, A primer concerning industrial timber litigation with emphasis upon Mississippi law. 59 Miss. L. J. 387, Fall, 1989.

JUDICIAL DECISIONS

1. In general.

2. Acts of agents.

3. Proof.

4. Recovery of statutory penalty and damages.

5. Venue.

1. In general.

This section [Code 1942, § 1086] is applicable to negligence in failing to keep a fire from spreading to adjoining lands. Wofford v. Johnson, 250 Miss. 1, 164 So. 2d 458, 1964 Miss. LEXIS 445 (Miss. 1964).

A property owner setting fire on his own premises for a lawful purpose is not liable for damages caused by the spread of the fire to the property of another, unless he is negligent in starting or controlling the fire. Wofford v. Johnson, 250 Miss. 1, 164 So. 2d 458, 1964 Miss. LEXIS 445 (Miss. 1964).

The measure of diligence required of a property owner setting fire on his premises for a lawful purpose to prevent its spread is ordinary care. Wofford v. Johnson, 250 Miss. 1, 164 So. 2d 458, 1964 Miss. LEXIS 445 (Miss. 1964).

2. Acts of agents.

Where a servant charged with work which may be aided by fire, in furtherance of his duty, is guilty of negligence either in setting a fire or in controlling it thereafter, the master is liable for any damage which may result by reason of the spread of the fire to the property of another. Wofford v. Johnson, 250 Miss. 1, 164 So. 2d 458, 1964 Miss. LEXIS 445 (Miss. 1964).

Agents of a corporation who set out fire which burned plaintiff’s property were personally liable for negligence. Gloster Lumber Co. v. Wilkinson, 118 Miss. 289, 79 So. 96, 1918 Miss. LEXIS 75 (Miss. 1918).

3. Proof.

A property owner damaged by the spread of fire lawfully set on the premises of another is not required to establish negligence in both the setting of the fire and the permitting of it to spread, but recovery may be had by showing that although the defendant acted properly in setting the fire, he failed to manage and tend it with reasonable prudence and ordinary care appropriate to the circumstances, and as a result thereof the fire spread to plaintiff’s premises and caused damage. Wofford v. Johnson, 250 Miss. 1, 164 So. 2d 458, 1964 Miss. LEXIS 445 (Miss. 1964).

In action for damages to plaintiff’s trees and fence caused by fire which spread to plaintiff’s land, amount of verdict showed that jury assessed the statutory penalty, in view of the insufficiency of the evidence of actual damage. Gabbert v. Treadaway, 194 Miss. 435, 13 So. 2d 157, 1943 Miss. LEXIS 96 (Miss. 1943).

In an action for damages to plaintiff’s land resulting from a fire alleged to have been started by the defendant’s servant on adjoining land of the defendant and negligently permitted to spread to plaintiff’s land, evidence that there was a more or less general custom for farmers in that section to burn ditches, fence rows, stalks, etc., in preparation for planting, was not relevant to the gravamen of the action and should have been excluded. Robinson v. Turfitt, 192 Miss. 160, 4 So. 2d 884, 1941 Miss. LEXIS 21 (Miss. 1941).

In tort action for damage by fire plaintiff must show with reasonable certainty that party charged is party actually responsible for wrong. McCain v. Wade, 181 Miss. 664, 180 So. 748, 1938 Miss. LEXIS 106 (Miss. 1938).

Record held not to show trial court committed error in sustaining motion to exclude plaintiff’s evidence and refusing to submit case to jury. McCain v. Wade, 181 Miss. 664, 180 So. 748, 1938 Miss. LEXIS 106 (Miss. 1938).

4. Recovery of statutory penalty and damages.

In an action to recover damages to trees and to a fence, caused by fire spreading to plaintiff’s land, instruction requiring the jury to add the penalty provided by this section [Code 1942, § 1086] if any actual damage by the fire was found to have resulted from defendant’s negligence was correct in principle. Gabbert v. Treadaway, 194 Miss. 435, 13 So. 2d 157, 1943 Miss. LEXIS 96 (Miss. 1943).

Liability for the statutory penalty is not limited to cases where the defendant wilfully or wantonly allowed a fire to get onto the land of another, but expressly provides for the allowance of such penalty if the defendant “wantonly, negligently or carelessly” allowed a fire to get onto the land of others, and, since it would be necessary for the jury to first find that the defendant’s act had been wantonly, negligently and carelessly done before it would be even entitled to award actual damages, the jury should not, having so found, have ignored an instruction to add to such damages the statutory penalty, and a motion to have the judgment include the statutory penalty as well as the actual damages should have been sustained by the court. Wilson v. Yazoo & M. V. R. Co., 192 Miss. 424, 6 So. 2d 313, 1942 Miss. LEXIS 34 (Miss. 1942).

A person damaged by fire negligently set out may sue in one action for both actual damages and statutory penalty. Gloster Lumber Co. v. Wilkinson, 118 Miss. 289, 79 So. 96, 1918 Miss. LEXIS 75 (Miss. 1918).

Under this section [Code 1942, § 1086] the owner can maintain an action for the penalty and damages while his land is held under lease to a third person, and he cannot be required to elect on which count he will stand, whether actual damage or statutory penalty, since he can recover on both. Gilchrist-Fordney Co. v. Parker, 109 Miss. 445, 69 So. 290, 1915 Miss. LEXIS 177 (Miss. 1915).

5. Venue.

Venue of action for setting fire to grass on defendants’ land in two counties and burning bridge on road in J. county held in L. county where defendants resided. Jefferson Davis County v. Riley, 158 Miss. 473, 129 So. 324, 1930 Miss. LEXIS 14 (Miss. 1930).

Cross References —

Prohibition against owner of land struck off to state for taxes cutting timber from land prior to redemption, see §27-41-83.

Duty of land commissioner to protect public lands from trespass, see §29-1-17.

Damages for trespass and cutting of timber on public lands, see §29-1-19.

Penalty for cutting timber on state forfeited tax lands before purchase price is paid, see §29-1-41.

Posting of leased sixteenth section or lieu land against trespassers, see §29-3-54.

Disposition of funds collected because of trespass on sixteenth section or lieu lands located in more than one county or school district, see §29-3-129.

Control and development of state forests, see §55-3-11.

Bar of tort action against governmental bodies for airport development activities, see §61-3-83.

Criminal penalty for cutting and rafting of timber from state lands, see §97-7-65.

JUDICIAL DECISIONS

1. In general.

Liability of lessee of sixteenth section for cutting timber is that only which arises under general law of waste. J. T. Fargason & Son, Inc. v. Coahoma County, 156 Miss. 419, 124 So. 758, 1929 Miss. LEXIS 365 (Miss. 1929).

Cross References —

Disclaimer and tender of amends in actions for trespass on lands, see §11-7-73.

Application of general limitations of actions provisions, see §15-1-1.

General requirement that action to recover penalty be brought within one year, see §15-1-33.

RESEARCH REFERENCES

ALR.

Statutes of limitation concerning actions of trespass as applicable to actions for injury to property not constituting a common-law trespass. 15 A.L.R.3d 1228.

JUDICIAL DECISIONS

1. In general.

2. Trespass or destruction of trees.

1. In general.

A statute such as Code 1942, § 1075, creating a cause of action not known to the common law and fixing the time (Code 1942, § 1087) within which an action must be commenced thereunder is not a statute of limitation, but the right given thereby is a conditional one and the commencement of the action within the time fixed is a condition precedent to any liability under the statute. Evans v. Broadhead, 233 So. 2d 771, 1970 Miss. LEXIS 1667 (Miss. 1970).

Code 1942, § 744 allowing one to bring an action within one year after a previous action has been defeated for reasons other than upon the merits did not apply to that portion of the plaintiff’s suit which was founded on a cause of action created by Code 1942, § 1075, and therefore that portion of the suit which was founded on Code 1942, § 1075 and brought more than three years after the alleged destruction of trees, although within one year after defeat of the action for a reason other than upon its merits, was barred by the one-year period of limitations contained in Code 1942, § 1087. Evans v. Broadhead, 233 So. 2d 771, 1970 Miss. LEXIS 1667 (Miss. 1970).

Where the plaintiff sought damages under Code 1942, § 1075, but additionally sought damages by reason of an alleged trespass consisting of items other than the specific penalties given by Code 1942, § 1075, the one-year limitation stated in Code 1942, § 1087 was not applicable to those additional items. Evans v. Broadhead, 233 So. 2d 771, 1970 Miss. LEXIS 1667 (Miss. 1970).

The statutory remedy for trespass is not exclusive insofar as punitive damages are concerned. Day v. Hamilton, 237 Miss. 472, 115 So. 2d 300, 1959 Miss. LEXIS 493 (Miss. 1959).

Evidence of a trespass committed after the filing of the declaration in an action for trespass on land is inadmissible. Gulf & C. R. Co. v. Hartley, 88 Miss. 674, 41 So. 382, 1906 Miss. LEXIS 188 (Miss. 1906).

In order to recover the statutory penalties the plaintiff must show: (a) that the trees were cut on his land; (b) that they were cut without his consent; (c) that they were cut within twelve months before the suit was begun; (d) that they were cut by defendant or his agents or employees, acting within the scope of their employment, or by the command or consent of their principal; (e) that the cutting was done wilfully or recklessly without proper precaution to prevent a trespass. Therrell v. Ellis, 83 Miss. 494, 35 So. 826, 1903 Miss. LEXIS 70 (Miss. 1904).

The statute runs against infants. Miller v. Wesson, 58 Miss. 831, 1881 Miss. LEXIS 49 (Miss. 1881).

The remedy, under the statute, is an action of debt, and a count for the value of trees cut may be joined with one for the statutory penalty. Miller v. Wesson, 58 Miss. 831, 1881 Miss. LEXIS 49 (Miss. 1881).

The plaintiff’s ownership of the trees or land may be tried in the action for the statutory penalty. Miller v. Wesson, 58 Miss. 831, 1881 Miss. LEXIS 49 (Miss. 1881).

2. Trespass or destruction of trees.

Application of the discovery rule to the statute of limitations, Miss. Code Ann. §95-5-29, was inappropriate where an owner of trees required no unique expertise to realize when his trees had been taken away without his permission, and because the cutting and taking away of trees was not a secretive or inherently undiscoverable act. Jackson v. Carter, 23 So.3d 502, 2009 Miss. App. LEXIS 206 (Miss. Ct. App.), cert. denied, 22 So.3d 1193, 2009 Miss. LEXIS 613 (Miss. 2009).

Subsection (2) §95-5-10 is subject to the statute of limitations provided in §95-5-29 because the subsection involves specific penalties; Subsection (1) §95-5-10 is not subject to §95-5-29, but is subject to §15-1-33 because it is a penalty controlled by a one year statute of limitation. McCain v. Memphis Hardwood Flooring Co., 725 So. 2d 788, 1998 Miss. LEXIS 272 (Miss. 1998), overruled in part, Stockstill v. Gammill, 943 So. 2d 35, 2006 Miss. LEXIS 624 (Miss. 2006).

Supreme Court of Mississippi found that McCain v. Memphis Hardwood Flooring Co., 725 So. 2d 788 (Miss. 1998), should be overruled to the extent that Miss. Code Ann. §95-5-29 would apply to a claim for the fair market value of the trees cut or the cost of reforestation; such damages would clearly be considered to be compensatory damages, while a claim for double the fair market value of the trees cut would indeed be penal in nature. Stockstill v. Gammill, 943 So. 2d 35, 2006 Miss. LEXIS 624 (Miss. 2006).

Cross References —

Sale and inspection of food and drugs generally, see §§75-29-1 et seq.

RESEARCH REFERENCES

ALR.

Products liability: sufficiency of evidence to support product misuse defense in actions concerning food, drugs, and other products intended for ingestion. 58 A.L.R.4th 7.

RESEARCH REFERENCES

ALR.

Products liability: sufficiency of evidence to support product misuse defense in actions concerning food, drugs, and other products intended for ingestion. 58 A.L.R.4th 7.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in this section. The reference to the “director of the Mississippi Department of Agriculture and Commerce” was changed to read the “Commissioner of Agriculture and Commerce.” The Joint Committee ratified the correction at its August 5, 2008, meeting.

Cross References —

Commissioner of department of agriculture and commerce, see §§69-1-1 et seq.

Editor’s Notes —

Laws of 2013, ch. 385, § 6, effective March 20, 2013, provides:

“SECTION 6. This act shall take effect and be in force from and after its passage; volunteer fire departments shall have until July 1, 2013, to obtain and have approved the insurance policies or self-insurance reserves or combination thereof required for political subdivisions under the Tort Claims Act.”

Amendment Notes —

The 2013 amendment made minor stylistic changes in (1)(a) and (c).

Federal Aspects—

For organizations and nonprofit corporations which qualify for 501(c)(3) designation, see 26 USCS § 501(c)(3).

OPINIONS OF THE ATTORNEY GENERAL

Volunteer firefighters are protected under state “Good Samaritan” law. 1991 Miss. Op. Att'y Gen. 287.

Depending on particular facts of relationship between volunteer firefighters and governing body, volunteer firemen can, in certain limited circumstances, be considered employees for purpose of workers’ compensation; County can contribute funds, equipment, training, etc. to municipal volunteer fire department which provides services in county; however, county does not have authority to provide workers compensation coverage for volunteer firefighters for municipality because these firefighters are not employees of county. 1993 Miss. Op. Att'y Gen. 510.

A parochial school and/or church would come within the definition of a “qualified volunteer” and as such would enjoy the exemptions from liability provided by Miss. Code Ann. §95-9-1 when providing the use of its buildings or other real property to the Red Cross, Catholic Charities, or other qualified volunteer organizations during an emergency. 2007 Miss. Op. Att'y Gen. 146, 2007 Miss. AG LEXIS 106.

RESEARCH REFERENCES

ALR.

Duty and liability of one who voluntarily undertakes to care for injured person. 64 A.L.R.2d 1179.

Rescue doctrine: negligence and contributory negligence in suit by rescuer against rescued person. 4 A.L.R.3d 558.

Construction of “good Samaritan” statute excusing from civil liability one rendering care in emergency. 39 A.L.R.3d 222.

Liability of charitable organization under respondeat superior doctrine for tort of unpaid volunteer. 82 A.L.R.3d 1213.

Tort immunity of nongovernmental charities – modern status. 25 A.L.R.4th 517.

Construction and application of “Good Samaritan” statutes. 68 A.L.R.4th 294.

Rescue doctrine: liability of one who negligently causes motor vehicle accident for injuries to person subsequently attempting to rescue persons or property. 73 A.L.R.4th 737.

Valuing damages in personal injury actions awarded for gratuitously rendered nursing and medical care. 49 A.L.R.5th 685.

Am. Jur.

57A Am. Jur. 2d, Negligence §§ 193, 194.

JUDICIAL DECISIONS

1. Volunteer fire departments.

Volunteer firefighter was not immune from suit under the Mississippi Tort Claims Act (MTCA) for claims arising from an automobile accident because the volunteer fire department was not a political subdivision of the State. Under Miss. Code Ann. §95-9-1(3)(b), the firefighter could be liable for negligent operation of a vehicle. Poppenheimer v. Estate of Coyle, 98 So.3d 1059, 2012 Miss. LEXIS 486 (Miss. 2012).

RESEARCH REFERENCES

ALR.

Duty and liability of one who voluntarily undertakes to care for injured person. 64 A.L.R.2d 1179.

Rescue doctrine: negligence and contributory negligence in suit by rescuer against rescued person. 4 A.L.R.3d 558.

Construction of “good Samaritan” statute excusing from civil liability one rendering care in emergency. 39 A.L.R.3d 222.

Liability of charitable organization under respondeat superior doctrine for tort of unpaid volunteer. 82 A.L.R.3d 1213.

Tort immunity of nongovernmental charities – modern status. 25 A.L.R.4th 517.

Construction and application of “Good Samaritan” statutes. 68 A.L.R.4th 294.

Rescue doctrine: liability of one who negligently causes motor vehicle accident for injuries to person subsequently attempting to rescue persons or property. 73 A.L.R.4th 737.

Am. Jur.

57A Am. Jur. 2d, Negligence §§ 193, 194.

JUDICIAL DECISIONS

1. In general.

Umpires who officiated over softball game in which player was injured by thrown bat were statutorily immune from liability as “sport officials,” where umpires belonged to local organization and national organization which were both engaged in providing education and training to sports officials. Rolison v. City of Meridian, 691 So. 2d 440, 1997 Miss. LEXIS 81 (Miss. 1997).

RESEARCH REFERENCES

ALR.

Construction and application of “Good Samaritan” statutes. 68 A.L.R.4th 294.

Amendment Notes —

The 2003 amendment inserted “livestock shows” in the first and last sentences preceding “equine activities.”

OPINIONS OF THE ATTORNEY GENERAL

Section 95-11-1 et seq. protects the board of supervisors of Pearl River County and the Pearl River County Fair Board from liability for the use of the Pearl River County Arena by private rodeo bull/steer owners conducting bull riding training sessions using rough stock bulls and/or steers while practicing in the arena. 2005 Miss. Op. Att'y Gen. 464.

RESEARCH REFERENCES

Am. Jur.

16A Am. Jur. Pl & Pr Forms (Rev), Libel and Slander, Form 70.1 (Allegation – Innuendo – False charge – Plaintiff’s character).

Amendment Notes —

The 2003 amendment added present (c) and (d) and redesignated former (c) through (g) as present (e) through (h); inserted “or livestock” and/or “or other livestock” following “equine” throughout the section; inserted “livestock show(s)” preceding “eqine activity” throughout the section; and made minor stylistic changes.

Cross References —

Owner or possessor of equine, as defined in this section, restricted from bringing it into state or local show or sale facility without infectious anemia certificate, see §69-15-117.

OPINIONS OF THE ATTORNEY GENERAL

“Equine activity sponsors” as defined include individuals, groups, clubs, partnerships, and corporations which sponsor, organize, or provide facilities for equine activities; however, neither counties nor municipalities fall within the definition of an equine activity sponsor under the Act. 1998 Miss. Op. Att'y Gen. 213.

RESEARCH REFERENCES

Am. Jur.

16A Am. Jur. Pl & Pr Forms (Rev), Libel and Slander, Form 70.1 (Allegation – Innuendo – False charge – Plaintiff’s character).

Amendment Notes —

The 2003 amendment inserted “or livestock” and/or “or livestock shows” throughout the section.

RESEARCH REFERENCES

ALR.

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like. 85 A.L.R.2d 1161.

Liability for damage to motor vehicle or injury to person riding therein from collision with runaway horse, or horse left unattended or untied in street. 49 A.L.R.4th 653.

Liability for personal injury or death caused by trespassing or intruding livestock. 49 A.L.R.4th 710.

Am. Jur.

16A Am. Jur. Pl & Pr Forms (Rev), Libel and Slander, Form 70.1 (Allegation – Innuendo – False charge – Plaintiff’s character).

Amendment Notes —

The 2003 amendment inserted “or livestock” and/or “or livestock shows” throughout the section.

RESEARCH REFERENCES

ALR.

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like. 85 A.L.R.2d 1161.

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program. 88 A.L.R.3d 1236.

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof. 6 A.L.R.4th 358.

Am. Jur.

4 Am. Jur. 2d, Animals § 78.

25 Am. Jur. Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire.

Editor’s Notes —

This act is known as the “Mississippi See Something, Say Something Act.”