DISSENTING OPINION. I am of the opinion that the peremptory instruction ought to have been granted to the appellant. That the conduct of appellant's manager was unreasonable, and that some substantial damage to the appellee resulted because of her loss of employment may be conceded. The action here, however, is for slander.
Three essential elements of an action for slander are not shown by the record to have been present: (1) the words uttered must have been spoken of and concerning the plaintiff; (2) since the occasion was one of qualified privilege, actual malice, in fact, must exist; (3) there must be a publication to third parties who heard and understood the language, if not the actual import.
The first proposition is not met. The words spoken do not refer to the plaintiff, but to some indefinite individual in the group. The very uncertainty was the reason for the summary and wholesale discharge of all three employees. Such action was taken, not because the appellant thought the appellee was guilty, because he did not know, and could not say. Therefore, he did not so say. As *Page 74 stated in Bull v. Collins (Tex. Civ. App.), 54 S.W.2d 870, 871, the offending allegation was that, "One of you two took the money." The Court said, there is a "clear implication . . . that both did not steal it." It was further held that even if he had referred to the plaintiff no publication was shown, since both parties were principals and there is no slander when the remarks are addressed only to those accused. This principle finds support, also, in Harbison v. Chicago, etc., R. Co., 327 Mo. 440,37 S.W.2d 609, 79 A.L.R. 1, in which a husband and wife were both charged with crime. In a suit by the husband it was held that there was no publication to the wife, because she was a principal. This rule is recognized, also, by our own Court in Wrought Iron R. Co. v. Boltz, 123 Miss. 550, 86 So. 354, in which statement was made to the wife regarding her husband. Under the circumstances the interest of the wife, as well as that of a third party who also was present, was held to be sufficiently identified with that of the husband to constitute all as principals.
The controlling opinion leans heavily upon the doubtful authority of Jarnigan v. Fleming, 43 Miss. 710, 5 Am. Rep. 514, and Forbes v. Johnson, 50 Ky. 48. The authority of these cases, the former decided in 1870, and the latter in 1850, nearly a century ago, has been much impaired by the enlightened trend of modern decisions. I shall do no more than cite some typical examples of the contrary view: Norris v. Brady, 234 Mo. App. 437,132 S.W.2d 1059; Kenworthy v. Journal Co., 117 Mo. App. 327, 93 S.W. 882; Zanker v. Lackey, 2 W.W. Harr. 588, 32 Del. 588, 128 A. 373; American Civil Liberties Union, Inc., v. Kiely, 2 Cir.,40 F.2d 451; Owens v. Clark, 154 Okla. 108, 6 P.2d 755; Caruth v. Richeson, 96 Mo. 186, 9 S.W. 633; Dunlap v. Sundberg,55 Wn. 609, 104 P. 830, 133 Am. St. Rep. 1050; Harris v. Santa Fe Townsite Co., 58 Tex. Civ. App. 506, 125 S.W. 77; Sumner v. Buel (N.Y.), 12 Johns. 475; Jones v. Modisette, 151 La. 639, 92 So. 144; State v. Mayberry, 33 Kan. 441, 6 P. 553; Harvey v. *Page 75 Coffin (Ind.), 5 Blackf. 566; Wigmore, Evidence (2d Ed.), Sec. 1971; Salmond, Torts (7th Ed.), Sec. 137, p. 527.
It is agreed that the occasion was one of qualified privilege. The record does not show that there was personal malice in fact, nor that the intemperate and tactless conduct of appellant's agent was other than a resentment of the act, rather than against the actor. The ground for suspicion was present as in Scott-Burr Stores Corp. v.v. Edgar, 181 Miss. 486, 177 So. 766, 770. Bad faith could not be predicated upon an indignant resentment against an action operating to the detriment of the employer.
The third requirement of a publication is not sufficiently shown. As stated in a former paragraph, where those to whom the remarks are addressed are all principals, there is no publication as to third parties. An effort was here made to show that some customers were incidentally present, and that some may have heard the remarks. There is no ample proof that any third party heard the language used, or caught its import. Even so, such accidental circumstance would operate merely to invoke the holding in Scott-Burr Stores Corp. v. Edgar, supra, where it is stated: "Under the authorities cited in the briefs, and there seems to be no dissent therefrom, the fact that the 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, would not overthrow the qualifiedly privileged nature of the communication," (citing numerous cases and texts). It is in point, also, that the definition of express malice approved in the case just quoted, "denotes ill will, a sentiment of hate or spite, especially when harbored by one person towards another, and exists when one with a sedate, deliberate mind and formed design injures another, as where the person is actuated by ill will in what he does and says, with a design to willfully or wantonly injure another." *Page 76
The verdict unquestionably charges against the appellant the damages incident to the loss of employment and the difficulty of procuring other work. The evidence on this point is extended, and reveals a just personal resentment by the plaintiff, and injuries to her feelings. Yet if there be no actionable cause for the slander these matters would be immaterial.
For the above reasons I am of the opinion that the peremptory instruction requested by the appellant ought to have been granted.
Alexander and Griffith, JJ., concur in the foregoing dissent.