delivered the opinion of the court.
This is an appeal from a judgment of the circuit court of Tishomingo county granting a peremptory instruction for the defendant. The appellant filed a declaration based on section 10, Code of 1906, on actionable words, charging that Trollinger used language of and concerning Pate calculated to lead to a breach of the peace, the alleged words being that Trollinger stated that “Pate swore a lie down here in the courts of our land and I can prove it,’ ’ on one of the occasions, and on another that “W. L: Pate swore a lie as black as hell down here in the courts of our land, and I can prove it,” alleging that said words are, by their use, construction, and common acception, insults and calculated to lead to a breach of the peace. The defendant filed the general issue, and gave notice that on the hearing he expected to prove that the statements made by him about the appellant were and are the truth; the said notice not stating that the words were uttered with ‘justifiable motives. Defendant also gaye notice under the general issue that he would prove on the trial that what he said of and concerning Pate at the times and places alleged, or at all, were uttered by him as privileged communications, but does not state in said plea the nature of the privilege that he would claim.
The plaintiff introduced W. M. Perry, who testified that Trollinger said that Pate had sworn a lie, and he (Trol-linger) could prove it. On cross-examination Perry was asked who was with him at the time, and he answered, “Wright and Byram.” The question was then asked:
“All members of the same fraternity? A. Yes, sir.”
To this answer objection was'made and an exception taken. The question was then asked:
*261“Ton were appointed by that fraternal order to go and interview Brother Trollinger, were yon not, on the law committee, weren’t yon? A. Yes, sir. Q. Those things were stated to you in the course of that investigation1? A. ¥e went over there to try to compromise the thing. ”
He was asked:
“At the second time when this man made this statement, were you at that time engaged on a mission,in behalf of some fraternal organization? A. Well, I was talking to him-to see if we couldn’t get him— Q. Were you representing the lodge at that time? A. Yes, sir; I was on a committee.”
J. W. McDonald, as a witness for the plaintiff, stated that he heard Trollinger say “Pate swore a lie as black as hell or as black as his hat, I disremember, and he could prove it; ” that there were three of them together at that time; that this conversation was made some time in the latter part of the summer or fall, and was made at Belmont, Tishomingo county, Miss. On cross-examination he was asked where this conversation occurred, and answered:
“Well sir, we were coming from the lodge hall down in town, me and Mr. Trollinger and another man, I don’t remember the man, I don’t recollect who it was, and he was talking to him. Q. You are a member of the lodge there with Brother Trollinger?- A. Yes, sir. Q. Wasn’t Brother Trollinger in the lodgeroom at the time? A. No, sir; we were not in the lodgeroom. We were near Dr. G-oyer’s drug store. Q. Brother Trollinger had a charge preferred against him, didn’t he? A. Yes, sir. Q. He was discussing the charge preferred against him by the brethren? A. Of course it was, but it was all done settled, though.”
Thereupon plaintiff rested, and the defendant moved to exclude the evidence on the ground that they were fraternal brethren, talking in privacy of and concerning a charge against Trollinger in which his fraternal standing was questioned, and that they were privileged com-*262munieations, which, motion the trial judge sustained. The plaintiff excepted, and prosecutes this appeal.
Section 10 of the Code of 1906, on actionable words, reads as follows:
“ Certain Words Actionable. — All word,3 which, from their usual construction and common acception, are considered as insults, and calculated to lead to a, breach of tlie peace, shall be actionable; and a plea, exception or demurrer shall not be sustained to preclude a jury from passing thereon, who are the sole judges of the damages sustained; but this shall not deprive the courts of the power to grant new trials, as in other cases.”
We think the trial court erred in striking out the evidence and holding the communications to be privileged. The record does not disclose fully the circumstances, and does not show what the charge preferred, if any, was, nor does it show that the committee was taking evidence on the charge preferred against Trollinger, though, if we assume that this was the case, still it would be a question for the jury to determine whether the statements made were necessary,’ under .the circumstances, and whether or not they were made maliciously for the purpose of injuring plaintiff. The mere fact that two men belong to the same fraternal organization, and that such organization is trying to settle some differences between them, does not authorize one of the parties to denounce the other as a perjurer in the courts of this land, even to fraternal brethren. Under section 10 of the Code, above recited, it is especially provided that a plea, exception, or demurrer shall not be sustained to preclude a jury from passing thereon, and the jury are the sole judges of the damages sustained.
Reversed and remanded.