IN THE SUPREME COURT OF MISSISSIPPI

NO. 1998-CT-01520-SCT

HAROLD SPEED

v.

ROBERT E. SCOTT

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 08/07/1998

TRIAL JUDGE: HON. LAMAR PICKARD

COURT FROM WHICH

APPEALED:

COPIAH COUNTY CIRCUIT COURT

ATTORNEY FOR

APPELLANT:

WALTER WILLIAM DUKES

ATTORNEY FOR APPELLEE: T. MACK BRABHAM

NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND

PROPERTY DAMAGE

DISPOSITION: AFFIRMED - 04/26/2001

MOTION FOR REHEARING

FILED:

MANDATE ISSUED: 5/17/2001

EN BANC.

PITTMAN, CHIEF JUSTICE, FOR THE COURT:

¶1. Presiding Judge Leslie H. Southwick of the Court of Appeals has written an extensive and wellresearched opinion which we hereby largely incorporate as the opinion of this Court.

¶2. Robert E. Scott was called a "liar and thief" by Harold Speed. The assertions occurred over a thirtyday period at four meetings of the volunteer fire department in which both men served. Scott brought suit,

though he took the position throughout that no one believed Speed and that Scott's reputation was

undamaged. A jury awarded Scott $50,000 in actual and punitive damages, and judgment was entered

accordingly. On appeal a divided Court of Appeals agreed with Speed's argument that the absence of

evidence of damage to reputation was fatal to Scott's suit, and it reversed and rendered judgment for

Speed. We granted certiorari and now affirm the Court of Appeals.

FACTS

¶3. Harold Speed has served as chief of the Smyrna Volunteer Fire Department since it was formed in

1989. Robert Scott moved to Copiah County in 1992 and built a home about four miles from the Smyrna

fire station. The two men became friends at that time. Chief Speed invited the newcomer to become a

volunteer with the fire department, and Scott did so.

¶4. One dispute that arose between the two men in 1997 centered on the fire department's share of
insurance rebate money. Apparently this is the money paid to the State Tax Commission annually as a tax

on insurance premiums, by them distributed to counties, and then allocated by boards of supervisors. Miss.

Code Ann. §§ 83-1-37 & -39 (1999). Chief Speed, Scott, and other Smyrna firemen believed that more

of the money should be made available by the county for the volunteer fire departments. In March 1997

Smyrna firemen voted to seek publication of a letter on the subject in the county newspaper. Scott

prepared it.

¶5. Speed at some stage became less enamored with that idea, testifying at trial that he feared that

publishing the letter would harm the fire department's relations with the board of supervisors. At a meeting

on May 18, Chief Speed and Scott informed the other firemen about a conversation that they both had with

the president of the board of supervisors. Speed said that the president had warned them that the fire

department should not be overly combative about the money. Scott on the other hand stated that the

president told them to do whatever they thought was necessary. At that meeting, Chief Speed said that

Scott was lying about what they had been told. A vote was taken, by which it was decided not to authorize

publication. Some members objected to the propriety of the vote and abstained. Scott also argues that the

vote was invalid, though whether fire department procedural rules were bent or broken has no importance

to our issues.

¶6. In the local May 21 newspaper, the letter was published as an article by Scott. It stated that the Smyrna

fire department had voted in favor of the distribution of funds that was suggested in Scott's article. Speed

testified that he asked Scott why it was published despite the May 18 vote and was told that it was too late

after the vote to withdraw it. Speed did not believe the assertion as he said that someone else had assured

him that it was not too late to halt publication. At two meetings in June, Speed said to other firemen that

Scott was lying about the publication issue.

¶7. While animosity was growing over the letter, Chief Speed and Scott became antagonists over a different

matter. Chief Speed had earlier placed Scott in charge of an important training program that could favorably

affect the department's evaluation by the State Fire Rating Board. Since the department served rural areas,

connecting a hose to a fire hydrant was often impossible. The program on which Scott worked was to

assure delivery of water from such sources as natural reservoirs. Information needed to be acquired on the

location of these water sources. An exhibit was introduced at trial that apparently was the principal

document in question. It was a two-page hand-written list containing notations made by Scott when he,

Chief Speed, and another man took measurements one day in the field on the distances from ponds or other

reservoirs to the closest location where the tanker could be maneuvered during a fire at any one of about

thirty sites. The measurements were of distances of 50 feet to 300 feet to a reservoir.

¶8. Scott also prepared a loose-leaf booklet or binder that would contain this information. There is no

evidence that the booklet contained anything beyond the list of locations of reservoirs and measurements.

The description of the booklets in the minutes of a fire department meeting said that they contain "the

addresses of all locations and the field site to be used by each location. [Scott] will make a book listing

each field site and the length of blue line needed at each site." That is exactly the information that is on the

two-page hand-written list of measurements. Scott agreed with the minutes other than that he only prepared

one booklet, not one for each vehicle. He apparently placed clear plastic sheets into one binder and slipped

the two pages with measurements between the sheets.

¶9. Scott testified that Chief Speed at the meetings of firemen that were held on May 29, June 3 and June
17, called him a "thief" for keeping these materials and not giving them to the fire department. Speed did not

remember using the word "thief," but said that he told the others that Scott had taken papers that did not

belong to him. He said that Scott told him that "you're going to have to do it all over again. I'm going to take

it with me." Speed acknowledged at least using the word "thief" when speaking privately to a couple who

had attended one of the meetings.

¶10. Scott summarized the evidence that he presented this way:

1) May 18, 1997, Speed suggested Scott was lying at a meeting of firemen.

2) May 29, 1997, Speed called Scott a "thief" at a meeting.

3) June 3, 1997, Speed called a "liar and thief" at a meeting.

4) June 17, 1997, Speed repeated the phrase at a firemen's meeting.

5) June 17, 1997, Speed used the "liar and thief" phrase at the house of a married couple who had

attended the fire department meeting earlier that day.

¶11. On June 26, 1997, Scott sued Speed in the Copiah County Circuit Court for slander and also for

intentional infliction of emotional distress. He labeled the latter as "outrageous conduct" but acknowledges it

is the same tort.(1) He sought actual and punitive damages. At trial Scott testified that the time between the

incidents and the trial were "the worst fourteen months of my life." He says the allegation of lying and

stealing the papers had "bothered him enormously," that he was shocked, mad, and felt insulted. He then

talked about the value that he put on his reputation. He testified, "I don't sleep, I can't get it off my mind."

He testified about no other damages. Scott also felt confident that no one believed that he was a liar or a

thief, saying, "I don't know one" person who believed what Speed had stated.

¶12. Scott's wife also testified. She stated that Scott was not the same person. He had lost his sense of

humor, was not as supportive of her emotionally, and was often up at night because he could not sleep. She

used the phrase "I know I don't have my husband anymore. The man that I had a year and a half ago I

don't have. . . ."

¶13. No evidence was offered indicating harm to Scott's reputation, effect on his livelihood, or any other

monetary damage from the statements.

¶14. After deliberations, the jury returned a verdict that awarded Scott $40,000 in compensatory damages

and $10,000 in punitive. Judgment for those amounts was then entered.

DISCUSSION

¶15. Speed raises three issues. The first concerns the fact that Scott's attorney at trial asked Speed two

allegedly inflammatory questions, persisting in the inquiry even after an objection to the first question was

sustained. We find no reversible error in that. Because of our ruling on the two issues relating to the

evidence in this case, we only identify this first issue and then proceed beyond it. The remaining two issues

we consider together.

Issue I: Evidence to support $40,000 in actual damages and $10,000 in punitive damages
¶16. The parties agree on appeal that Scott's cause of action is either for intentional infliction of emotional

distress or for defamation. Speed argues that no award of actual or at least punitive damages could be

made under either theory.

¶17. The tort of intentional infliction of emotional distress can be dispensed with rather quickly as an

arguable basis in this suit. To justify a finding that this tort has occurred, the defendant's conduct must be

"wanton and wilful and it would evoke outrage or revulsion." Leaf River Forest Prods., Inc. v.

Ferguson, 662 So. 2d 648, 659 (Miss. 1995). Among the kind of actions that have been found to evoke

such outrage were a plot by a girlfriend and her parents to hide the child of an unwed father, arranging for

the baby to be adopted by strangers while the father pursued a custody suit. Smith v. Malouf, 722 So. 2d

490, 498 (Miss. 1998). In another suit a car dealership forged a customer's name on a sales contract and

sold the contract to a finance company, resulting in the customer's credit being damaged. T. G. Blackwell

Chevrolet Co. v. Eshee, 261 So. 2d 481, 486 (Miss. 1972).

¶18. Contrarily, what is not sufficient have been such actions as a law firm breaching an employment

contract with an attorney, locking him out, refusing him secretarial support and dropping his name from the

firm sign. Fuselier, Ott & McKee, P.A. v. Moeller, 507 So. 2d 63, 69 (Miss. 1987). A Mississippi

federal court defined the necessary severity as acts "'so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

civilized community.'" Pegues v. Emerson Elec. Co., 913 F. Supp. 976, 982 (N.D. Miss.1996) (quoting

Restatement (Second) of Torts § 46 cmt. d. (1965)). Such acts did not occur here.

¶19. As one court summarized the jurisprudence in this area, "meeting the requisites of a claim for

intentional infliction of emotional distress is a tall order in Mississippi." Jenkins v. City of Grenada, 813 F.

Supp. 443, 446 (N.D. Miss. 1993).

¶20. Some of Scott's witnesses testified that Chief Speed saw Scott as a potential rival and may have been

trying to undermine him. That possible ulterior motive plus strong feelings and perhaps hot temper propelled

Speed into his charges over the thirty-day period. We cannot find in these actions such conduct as would

cause an observer of ordinary sensibilities to suffer "outrage or revulsion." Such emotions are not the initial

or early severity of displeasure that we may have in the actions of our fellow citizens, but are perhaps the

most extreme. Speed's conduct was over a fairly short period of time, arose from the disagreements

between the two men and perhaps fears about Speed's career longevity. Scott's own proof indicates that

the assertions were not considered credible. The alleged lying concerned what a newspaper publisher may

have said about the ability to stop publication, or a president of the board of supervisors may have said

about the right course for the fire department to take. The thievery alleged was of some hand-written

papers prepared for a training program. Speed's conduct simply cannot be seen as intolerable, outrageous

or revolting.

¶21. This leaves the general tort of defamation. Defamation is "that which tends to injure reputation' in the

popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to

excite adverse, derogatory or unpleasant feelings or opinions against him." Prosser & Keeton on the Law of

Torts § 111, at 771 (5th ed. 1984). The usual analytical division is into the twin torts of libel for written

defamations and slander for oral ones. Id. This was slander. What is needed in Mississippi to prove the tort

are the following:

(a) a false statement that has the capacity to injure the plaintiff's reputation;
(b) an unprivileged publication, i.e., communication to a third party;

(c) negligence or greater fault on part of publisher; and

(d) "either actionability of statement irrespective of special harm or existence of special harm caused

by publication."

Franklin v. Thompson, 722 So. 2d 688, 692 (Miss. 1998). The meaning of "special harm" in the last

element will be discussed presently.

¶22. By the time of trial Chief Speed stipulated that Scott was neither a liar nor a thief, but Speed did not

concede that he knew the statements to be false when made in May and June 1997. The trial court found

that Scott was a vortex public figure. A vortex public figure is a person "who is otherwise a private citizen

but who thrusts himself or becomes thrust into the vortex of a matter of legitimate public interest." Eason v.

Federal Broad. Co., 697 So. 2d 435, 438 (Miss. 1997) (quoting Ferguson v. Watkins, 448 So. 2d

271, 277 (Miss. 1984)). This is standard First Amendment law and therefore a required consideration.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). On appeal

neither party challenges the vortex figure designation.

¶23. If a person is deemed a vortex public figure and the alleged defamation concerns a matter of public

interest, the plaintiff must prove that the defendant acted with actual malice. Ferguson, 448 So. 2d at 278.

By "actual malice," it is meant that Chief Speed must have made the comments either knowing them to be

false or in reckless disregard of their truth. Franklin, 722 So. 2d at 692.

¶24. Scott was resolute that no harm to his reputation occurred. No evidence of damage to reputation was

offered. His attorney informed the court that no instructions on damage to reputation were offered.

Sleeplessness, anger, and profound irritation about the statements were shown. Therefore, even though it is

uncontested that the statements were "published" to third parties and even if there were jury issues on the

knowing falsity and defamatory capacity of the statements, that leaves the issue of whether adequate proof

of damage was introduced. As this Court observed, "no person avoids a few linguistic slings and arrows,

many demonstrably unfair. . . . Still our sensitivity to the destructive power of words hardly suggests that we

assess damages for all bruised feelings." Ferguson, 448 So. 2d at 276.

¶25. Slander requires proof of "special harm" unless the statements were actionable per se. E.g.,

Franklin, 722 So. 2d at 692. Discussed below are slanders that are actionable per se and need no special

harm. However, when special harm must be shown, this is required:

All other slanderous words, no matter how grossly defamatory or insulting they may be, . . . are

actionable only upon proof of "special" damages -- special in the sense that it must be supported by

specific proof, as distinct from the damage assumed to follow in the case of libel or of the kinds of

slander [that are actionable per se].

Prosser, Torts, § 112, at 793. "Special harm . . is the loss of something having economic or pecuniary

value. . . . The limitation [that arose centuries ago] has persisted in the requirement that special harm, to

serve as the foundation of an action for slander that is not actionable per se, must be 'temporal, 'material,'

pecuniary or economic in character." Restatement of Torts (Second) § 575, cmt. b. However, once it is

shown that special harm resulted from a slander that was not actionable per se, recovery may then also be
had for emotional distress and resulting bodily harm. Id. § 575 cmt. c.; see also id. § 623, cmt. a. ("neither

emotional distress nor bodily harm resulting from it is special harm sufficient to support an action for a

slander that is not actionable per se.").

¶26. These rules may at first blush seem artificial, but their purpose is obvious enough. Slander is an unusual

tort, where mere spoken words become actionable. Everyday life contains risks of sharp words and

wounded feelings, but also worse. Brought forward from common law origins is a balancing of the

competing interests of one person to speak and another to be free from harm. Part of the balance struck is

to require concrete harm before spoken words are actionable. Scott's concession that he had no pecuniary

damages but was only seeking loss for mental distress means that no special harm was even alleged, much

less proven.

¶27. What is left for Scott was to prove that these words fit within one of the five categories of slander

identified in Mississippi for which no special harm need be shown:

"1) Words imputing the guilt or commission of some criminal offense involving moral turpitude and

infamous punishment. (2) Words imputing the existence of some contagious disease. (3) Words

imputing unfitness in an officer who holds an office of profit or emolument, either in respect of morals

or inability to discharge the duties thereof. (4) Words imputing a want of integrity or capacity, whether

mental or pecuniary, in the conduct of a profession, trade or business;" and in this and some other

jurisdictions [5] words imputing to a female a want of chastity.

W. T. Farley, Inc. v. Bufkin, 159 Miss. 350, 132 So. 86, 87 (1931).(2) Only the third somewhat

problematic category of Farley does not appear in a similar listing in the Restatement. Restatement of

Torts (Second) § 570. The chastity category was adopted by this Court only two years prior to Farley,

after this Court admitted that falsely claiming that a woman was unchaste was not actionable at common law

without proof of special damages. Interstate Co. v. Garnett, 154 Miss. 325, 342-47, 122 So. 373, 376-

78 (1929). The addition was made because these rules must be "adapted to our institutions and

circumstances. . . ." Id. at 347, 122 So. at 378.

¶28. The only category that Scott argued was applicable was the one for allegation of a crime. When Chief

Speed accused him of being a "thief" for taking papers regarding the firemen's training program, Scott says

that this implied that he committed a criminal act.

¶29. The law is settled that the mere use of the label "thief" is insufficient. It is at this point that the majority

and the dissents in the present case diverge. We note that the pre-eminent torts authority limits the

actionable per se doctrine by concluding "that it is not always the crime, but rather the character of the act

charged, which will be determinative. It is not every trivial assault or battery which involves 'moral turpitude,

' but an accusation that the plaintiff beat his mother necessarily does." Prosser & Keeton, Torts, § 112, at

789. Similarly, every accusation of "theft" does not rise to the required level. One of the earliest Mississippi

authorities that discussed these issues held that accusing someone of theft, when the act could not be "a

felonious stealing," is not actionable per se. Cock v. Weatherby, 13 Miss. (5 S. & M.) 333, 337 (1845).

Farley recognized exactly that by defining the first category of actionable per se slanders as only those

charging a "criminal offense involving moral turpitude and infamous punishment."

¶30. No matter the criminal label, the charge must be a significant one:
One who publishes a slander that imputes to another conduct constituting a criminal offense is subject

to liability to the other without proof of special harm if the offense imputed is of a type which, if

committed in the place of publication, would be

(a) punishable by imprisonment in a state or federal institution, or

(b) regarded by public opinion as involving moral turpitude.

Restatement of Torts (Second) § 571.

¶31. In other words, the mere possibility that an act could be penalized under a criminal code is not enough.

Falsely accusing someone of exceeding a highway speed limit is an example of an accusation of a crime that

is not actionable per se. Only when the crime falsely imputed is of "major and serious a character . . . is [it]

actionable without proof of special damage." Id. cmt. f. "This is not true of crimes punishable by

imprisonment in the county jail or in a workhouse or other similar institution. Many petty misdemeanors, not

regarded in the eyes of the community as highly disgraceful, are made punishable by imprisonment . . . .

Unless these crimes are regarded, under Clause [§571](b), as involving moral turpitude, the accusation of

their commission is not actionable per se." Id. "Moral turpitude has been defined as inherent baseness or

vileness of principle in the human heart. It means, in general, shameful wickedness, so extreme a departure

from ordinary standards of honesty, good morals, justice or ethics as to be shocking to the moral sense of

the community." Id. cmt. g. Claiming that this volunteer fireman took two notebook pad pages that he

himself had written upon simply does not rise to a crime of shameful wickedness and extreme departure

from community standards.

¶32. These considerations are recognized in Mississippi slander law. Prior to Farley's designation of five

categories of actionable per se slanders, Chief Justice Sydney Smith had discussed one of them in an

appeal of damages awarded for a false charge that another person had taken property. The defendant's

accusation was that after another person's death, the accuser "did not find in the [deceased's] house

everything that was inventoried, and that Mrs. Pizatti, meaning the plaintiff, had taken property that did not

belong to her out of the house," all of which implied that Pizatti was a thief. Woodville v. Pizatti, 119

Miss. 85, 80 So. 491 (1919). One person who heard the statement specifically recalled that the defendant

had said that Pizatti "had taken part [of the property] away" that should have been in the house. Id., 80 So.

at 492.

¶33. Pizatti argued that these words were "actionable per se under the common law, for the reason that

they charge her with the commission of a crime." Id. The Court agreed that allegations of a crime are

actionable per se, "but only such as charge him with the commission of an act which, if true, would subject

him to punishment-- 'for a crime involving moral turpitude, or would make him liable to a punishment

infamous in character, or to one which, if not necessarily infamous, would bring disgrace upon him.' 17 R.

C. L. 265." Id.

¶34. Even if a crime had been alleged, which the Court doubted, it was not a crime of moral turpitude or

one involving punishment infamous or disgraceful in character. Therefore, a peremptory instruction for the

defendant should have been given. Id.

¶35. Though larceny can be a serious charge, we find that the allegation made by Chief Speed was not of

that level of theft. Scott's possible taking of two hand-written pages of notebook paper was not an offense
of moral turpitude, or a crime leading to punishment infamous or disgraceful. Though the firemen who heard

the statements may not have thought in terms of misdemeanor and felony, county jail or state prison, or

even that the unauthorized taking of these pages may not have been a crime at all, it is obvious that the

alleged theft was of documents of no intrinsic monetary value. There was nothing arduous about the means

of reacquiring the information. Remeasurements would have inconvenienced the volunteer fire department.

However, there was no possibility shown by these words that Scott would have suffered meaningful

criminal liability from the theft.

¶36. Finally, to the extent Scott's lying about what he had been told by others needs to be analyzed under

these rules, it is enough to say that even if Scott lied to the assembled firemen at a meeting, not in a court

setting or otherwise under oath, that would not be a crime.

¶37. One relatively recent decision by this Court discussed this issue. Immediately prior to citing Pizatti for

a different principle, this Court stated that "an utterance falsely imputing a crime or accusing one of being a

thief is actionable per se." Baugh v. Baugh, 512 So.2d 1283, 1285 (Miss. 1987). The relevant phrase is

that "an utterance falsely [1] imputing a crime or [2] accusing one of being a thief is actionable per se." Id.

at 1285 (brackets added). Baugh literally provides that the imputation of any crime at all is actionable per

se.

¶38. Secondly, even though the Court did not discuss the standard limitations on these rules, the distinctions

were irrelevant to the case. In fact, even without the distinctions the Court found that an allegation that could

have been interpreted to mean that the plaintiff had engaged in fraud to obtain Social Security benefits was

not "a clear and unmistakable accusation" that a crime had occurred. Id. Thus Baugh understandably did

not delve into the intricacies of what was not relevant to its decision. Important to our view is that Baugh

cited and in no way criticized Pizatti, the case that made these distinctions clear. We find that neither part

of the quoted sentence from Baugh should be read outside of the long-standing elaborations on the

doctrine.

¶39. There are cases in which the word "thief" was used and found to be actionable per se, but these were

for significant criminal acts. E.g., Boler v. Mosby, 352 So.2d 1320, 1323 (Miss. 1977) (customer alleged

that he was falsely accused of shoplifting meat from the defendants' store had a claim that was actionable

per se); Valley Dry Goods Co. v. Buford, 114 Miss. 414, 427, 75 So. 252, 254 (1917) (accused of

stealing $100 from cash register where worked, in conspiracy with someone else). We do not analyze the

decisions from foreign jurisdictions that are cited, other than to note that the general national rule is well

captured in the Restatement. As already indicated, that summary of the law provides that proof of damages

is unnecessary only if the crime charged is sufficiently serious as to be punishable by imprisonment or is a

crime that would be regarded by the public as involving moral turpitude. Restatement (Second) Torts §

571.

¶40. It is not the label used but the seriousness of the allegation that is important. Otherwise accusing

someone of "theft" of a pencil, or a newspaper, or anything with an identifiable value no matter how minimal

would be actionable per se. It is not uttering "thief" that presumptively steals the accused's good name, but

only accusing someone of such a theft as would be a grave offense. The accusation of theft of the two

sheets of paper is not in that category.

¶41. We return to one final authority for perspective. Since "it is not always the crime, but rather the

character of the act charged, which will be determinative," this should be a court's focus:
The idea toward which the courts obviously have been struggling is that imputation [of crime] is to be

actionable without proof of damages only if it involves a major social disgrace, which might very well

be the ultimate test.

Prosser & Keeton, Torts, § 112, at 789. This theft does not involve social disgrace.

¶42. We accept that the jury had discretion to determine that these statements were knowingly false and

that Scott suffered anguish. We also find that Scott's concession that the only damage was non-monetary

meant that no special harm had occurred. Further, Chief Speed's assertions that Scott lied to the firemen

and that he was a thief for taking papers on a training program project for which he had been placed in

charge, did not allege crimes involving moral turpitude or the prospect of infamous or disgraceful

punishment.

¶43. We do not dismiss the statements as a frivolous matter. For purposes of the trial they were conceded

to be false. Yet neither can we ignore that Scott failed in the proof necessary to obtain damages for Speed's

actions. The trial court should have granted Speed's request for a peremptory instruction or later for a

judgment notwithstanding the verdict. We, therefore, affirm the Court of Appeals' judgment, and we reverse

the judgment by the Copiah County Circuit Court and render judgment here for Harold Speed finally

dismissing Robert E. Scott's complaint and this action with prejudice.

¶44. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED, AND THE

JUDGMENT OF THE COPIAH COUNTY CIRCUIT COURT IS REVERSED AND

RENDERED.

SMITH, MILLS, WALLER AND COBB, JJ., CONCUR. BANKS, P.J., DISSENTS WITH

SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J., AND DIAZ, J. McRAE,

P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BANKS, P.J.,

DIAZ AND EASLEY, JJ.

BANKS, PRESIDING JUSTICE, DISSENTING:

¶45. I respectfully dissent because, in my view, the majority opinion fails to give due regard to whether

context is conveyed with the otherwise offending accusation. It is not enough to say that accusing one of

being a thief is not slander or libel per se where the context makes it clear that the object of theft is not such

that would render the act criminal. What must be said is that where the listener or reader knows or

reasonably should know from the context that the act in question was not criminal, the accusation is not

libelous per se. Burns v. Supermarkets Gen. Corp., 615 F. Supp. 154, 157 (E.D. Pa. 1985). This

requires that the listener be aware of the context in which in the accusation is made. Id. In my view, an

accusation that one is a thief, without more concerning context, is injurious per se. Boler v. Mosby, 352

So. 2d 1320, 1323 (Miss. 1977). Only where a context is given which makes it clear that the alleged

conduct in question was not criminal is the per se injury removed.

¶46. A federal district court applying Pennsylvania law used this very analysis in Burns where a witness

overheard an employer discharge an employee because his actions were "like stealing." 615 F. Supp. at

156. The issue, the court said, was whether under the circumstances the statement to the employee that

"reducing the price of good produce improperly is like stealing" was reasonably capable of being

understood as an imputation of a commission of a crime. Id. at 157. Generally, it is not. A witness,
however, overhearing the statement asserted that he understood the statement to mean just that. Id. The

statement was not defamatory, however, because the witness was given sufficient underlying facts to form

his own opinion that the statement was untrue. Id. at 158.

¶47. As indicated in the Restatement (Second) of Torts § 566 (1977), a listener's reasonable interpretation,

which will be based in part on the context in which the statement appears, is the proper measure for

whether the statement is actionable. See also Joyner v. Wear, 665 So.2d 634 (La. Ct. App. 1995)

(question of whether communication is defamatory is answered by determining whether listener could have

reasonably understood communication, taken in context, to have been intended in defamatory sense);

Ward v. Zelikovsky, 643 A.2d 972 (N.J. 1994); Alianza Dominicana, Inc. v. Luna, 645 N.Y.S.2d

28 (N.Y. App. Div. 1996)(courts must consider full context of communication in which statement appears

including surrounding circumstances that signal readers or listeners that what is being read or heard is likely

opinion, not fact).

¶48. In the instant case, the accusation was made several times on different occasions to different people.

While the record reveals that on some occasions the context was given, there was a least one occasion in

which the record shows no evidence of context for the accusation. With respect to that occasion, I would

hold that the injury per se rule applies. I would, therefore, reverse the judgment of the Court of Appeals and

affirm the judgment of the trial court.

McRAE, P.J., AND DIAZ, J., JOIN THIS OPINION.

McRAE, PRESIDING JUSTICE, DISSENTING:

¶49. The majority's assertions that Chief Speed's words were not sufficient to cause emotional distress are

incomprehensible. Calling someone a liar and a thief during public meetings is damaging not only to his

character and reputation, but can also cause emotional distress. The majority errs when it states that these

words are not actionable without proof of special damages. The language used in this case clearly falls

within the categories of slander per se, where no proof of special damages is required. Alternatively, we

have an "actionable words" statute in this State, in addition to case law, holding that when someone is called

a liar or a thief, those words are actionable. Accordingly, I dissent.

¶50. The majority asserts that because Speed's words were not supported by accusations of a felonious

crime committed by Scott, that these words do not fall within the categories of slander per se, citing W.T.

Farley, Inc. v. Bufkin, 159 Miss. 350, 132 So. 86, 87 (1931); and therefore, no damages should be

allowed in this case. There is no need for proof of special damages in this case because Speed's words to

Scott easily fall into at least two categories of slander per se; either under words imputing the guilt or

commission of a criminal offense or words imputing a want of integrity or capacity, whether mental or

pecuniary, in the conduct of a profession, trade, or business. See id. at 87.

¶51. Furthermore, Speed's words are actionable due to Miss. Code Ann. § 95-1-1 (1994), which states,

All words which, from their usual construction and common acceptation, are considered as insults,

and calculated to lead to a breach of the 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....

¶52. Calling someone a thief and a liar would fall into this category. These words are insulting to most
people, especially in professional situations or a situation where someone has been trusted with a certain

amount of responsibility, such as the case at hand. Scott clearly had a cause of action under these

circumstances. As the majority alludes to, Scott says he lost sleep, felt insulted and his reputation was

besmirched. These are damages for a jury to determine.

¶53. Our case law also states that calling someone a liar and a thief is actionable. In Continental Cas. Co.

v. Garrett, 173 Miss. 676, 679, 161 So. 753, 754 (1935), an insurance salesman walked into a man's

home, accused him of falsifying a claim, and subsequently stated, "you are a liar." This language was

charged in the first of two counts against the insurance company; one for slander and the second for

personal injury. Although the first charge of slander was dismissed by the trial court, the second count, also

based upon the insulting language arising from this same incident, was upheld. Garrett was awarded punitive

damages by the jury in the amount of $250.00, and we upheld this award. Id. at 755. This Court found that

the "insulting language caused him [Garrett] to suffer mental anguish, and that his physical ailments were

thereby aggravated and prolonged to his great damage." Id. at 754. Accordingly, since Scott was called a

liar and a thief while working in a professional capacity, he should be allowed to recover these damages.

The punitive damages awarded in this case should be upheld as this was an intentional tort and outrageous

conduct.

¶54. There also need not be an actual physical injury for a person to recover damages in such a case. In

First Nat'l Bank v. Langley, 314 So. 2d 324, 338 (Miss. 1975), we stated that a plaintiff may recover

damages for emotional distress due to willful or wanton acts, even in the absence of physical injury, i.e.,

impact. Id. at 334. In Langley, the plaintiff was falsely accused of losing a bank deposit by his employer

and later sued his employer for physical and mental injuries arising from mental distress, among other

grounds for suit. Id. at 325-29. We held that the element of physical impact was not required for the

plaintiff to recover damages for emotional distress. Id. at 339.

¶55. The majority relies upon Woodville v. Pizatti, 119 Miss. 85, 80 So. 491 (1919), stating that

allegations of a crime would be actionable per se, but only if such allegations were to charge a person "with

the commission of an act which, if true, would subject him to punishment-'for a crime involving moral

turpitude, or would make him liable to a punishment infamous in character, or to one which, if not

necessarily infamous, would bring disgrace upon him.' 17 R.C.L. 265". Id. at 492 (emphasis added).

Speed's words constitute language that would, and did in fact, bring disgrace upon Scott.

¶56. It is true that in Pizatti, the words were ambiguous and disputed among witnesses, and we found no

clear indication that the words accused the plaintiff of the commission of a crime. However, we did state

that the "words as they appear from the testimony should be held to be slanderous, but upon which we will

express no opinion." Id. at 491. More importantly, Pizatti is easily distinguishable from this case because

Speed specifically called Scott a "liar and thief." There was no ambiguity to Speed's words nor his

accusations; and therefore, Scott should be able to recover his damages.

¶57. The majority also attacks the validity of Baugh v. Baugh, 512 So. 2d 1283, 1285 (Miss. 1987),(3)

where we stated "without doubt, an utterance falsely imputing a crime or accusing one of being a thief is

actionable per se." Id. (citing Boler v. Mosby, 352 So. 2d 1320, 1323 (Miss. 1977); Lemonis v. Hogue,

213 Miss. 775, 780, 57 So. 2d 865, 866 (1952)).

¶58. The majority states that Baugh does not apply to this case because the cases it relies upon dealt with

situations where a person was called a thief in regards to "significant criminal acts." However, the Baugh
case itself considered whether the appellant's former daughter-in-law slandered him by telling a social

security employee that she was not aware that her former father-in-law was disabled nor that he wore a

neck brace. We found that these statements did not rise to such a level as to suggest that "Baugh was guilty

of 'fraud, deceit, and trickery in obtaining money from thee Social Security Administration.'" Baugh, 512

So.2d at 1285. We found this language not to be slander per se and stated that "the slander, however, must

be clear and unmistakable from the words themselves and not be the product of any innuendo, speculation

or conjecture." Id. (citations omitted). The language in the present case was not the product of innuendo,

speculation or conjecture. Rather, Speed blatantly called Scott a liar and a thief. There is no question that

this language falls in the category of slander per se and that Scott should be able to recover.

¶59. Speed's conduct in this case was outrageous as well as slander per se. This case was presented for a

jury to do its duty. We should do ours and affirm the trial court's judgment and reverse the Court of

Appeals' judgment. For these reasons, I dissent.

BANKS, P.J., DIAZ AND EASLEY, JJ., JOIN THIS OPINION.

1. Restatement of Torts (Second) § 46 uses the heading "outrageous conduct" for the tort that it then

describes with the elements for intentional infliction of emotional distress.

2. The Court did not cite its source for the quotation. We found no Mississippi court opinion from which

this quote was obtained. The quote is similar but not identical to language in a source cited in the reported

summary of briefs. 159 Miss. at 351, citing 25 Cyc. Law & Proc., Libel & Slander 264-65 (1907). The

quote is not from the appellant's brief; the appellee's brief is not with the archived file in this or in a related

case. Record Group 32, cause # 29,137, Miss. Dept. Archives & History; Ray v. W. T. Farley, Inc.,

131 So. 365 (Miss. 1930), cause # 29,033.

3. This case was also relied upon in Court of Appeals Judge Bridges's dissenting opinion.