Hunt v. Fidelity Mutual Life Insurance , 167 Ala. 188 ( 1910 )

MAYFIELD, J.

This was an action of libel. The original complaint contained three counts. Each set out the alleged libelous publication. Demurrers to the complaint were overruled, and the defendant filed eight pleas. The first three set up the general issue. The others Avere attempts to set up justification, the truth of the matter published, and that its publication was privileged. The special pleas were several times amended; demurrers being interposed after each amendment. Finally the defendant withdrew the pleas, setting up the general issue, and relied solely upon the special pleas. Plaintiff’s demurrers being overruled as to each of the special pleas, he then filed special replications to each of the special pleas, to each of which demurrers were sustained. Plaintiff then declined to plead further, and suffered judgment. From this judgment he now appeals, assigning as error the sustaining of demurrers-to his special replications.

The pleas of justification were insufficient. While they attempt to justify as to the whole of the publication declared on, the only facts alleged are that plaintiff was indicted in the state of Texas for swindling (setting out some of the allegations contained in the indictment, which are not all the matters contained in the publication or declaration that are libelous, but only a part thereof), and that on the trial upon this indictment plaintiff was convicted. The pleas do not allege that these matters set out therein were true, or that the judgment of conviction was valid, binding, or conclusive. To be sufficient, the pleas must set forth facts or matters sufficient to show that publication and the matters alleged in the complaint or declaration as libelous were not libelous, but were true. If the plaintiff had been indicted and convicted of the offense charged, this would be competent evidence to prove a proper plea of justification; but to merely allege that he had been indicted therefor, or that he had been convicted therefor, without alleging that the judgment was valid, binding, or conclusive, is not sufficient. An indictment and conviction, which was invalid and void, might be a part of defendant’s scheme and plan to libel the plaintiff.

A person who libels or slanders another cannot justify by having the person libeled indicted and convicted, if the prosecution and conviction is void. It must be valid, binding, and conclusive, in order to be sufficient. If the prosecution was instituted, and procured by the defendant, and it resulted in a judgment of conviction which was void, it would aggravate, rather than justify. A plea of justification, alleging the truth of libelous matter, may serve to aggravate the damages, if the defendant fails to prove it. The pleas of justification should have alleged that the judgment of conviction was valid, binding, or conclusive. It would have been a better form of pleading for the pleas to set out the facts and allege that they were true, and then the indictment and conviction would have been competent evidence to prove the plea.

A plea of justification, in actions of libel and slander, must justify the words or publication alleged or complained of, or so much of them as is actionable. It is not sufficient to justify similar words or publications. However, the substance of the defamatory matter is all that is required; but the substance, its character, and imputation must be justified. — 25 Cyc. 459; 13 Ency. PL & Pr. 84, 85. The justification must always be as broad as the charge attempted to be justified. However, it need go no further than the charge, and need justify •only so much thereof as is actionable. — Town, on Slander and Libel, 212, 213. A plea of justification in libel or slander should state specific facts, showing in what instan cés and in what manner plaintiff has misconducted himself. The matter set out in the plea should be •strictly conformable to the matter alleged in the complaint or declaration. If it attempt to justify as a whole, it must not be confined to a part only.

Though the imputation contained in the complaint rest in inference, or is a legitimate conclusion from facts alleged, a plea of justification should show a state of facts which will warrant the truth of the charge. —Newell on Def., Sian. & Lib. 651, 652. The precise charge must be justified, and the whole of the precise charge. Every fact stated must be proven true, unless it is immaterial. A general allegation that the publication or words are true is insufficient. — Odgers on Libel & Slander, 418, 419, 495, 486. None of the pleas of justification were sufficient.

Dowdell, C. J., and Simpson, Anderson and Sayre, JJ., a majority of the court, hold and decide that the pleas which attempted to set up the defense that the publication was privileged were sufficient, and not subject to the demurrer.

■ McClellan, Mayfield, and Evans, JJ., are of the opinion that the publication was in no sense privileged; it conveyed no necessary information to any one; it was published in a form and in a manner to reach the public; it was clearly not intended to be private, but was intended for the public; it was in no sense confidential or privileged; and the pleas set up no facts sufficient to show the contrary.

If this publication had been by letter from this company to its agents or policy holders, for the purpose of detecting the fraud or convicting the offender, or protecting them in the affairs of the company, it might be privileged; but it shows on its face that it was issued as an advertising bulletin, and intended for the public. It has none of the essential elements of privileged matter, except the conclusion of the pleader, and that it is alleged that it was sent to its policy holders. The publication shows on its face that it was intended for the public, one clause thereof reading as follows: “This •case is again notice to the criminal class that the management of the Fidelity proposes to protect its policy holders against swindlers and that no effort will he spared to punish them.” A mere boast and advertisement, intended for the public, to give publicity to that case, and to notify the criminal class of the ability and determination of that company to prosecute and convict them.

A plea of privileged communication must show that the publication or communication was made in good faith, and thus rebiit the presumption of malice. It must show that the defendant was under some obligation to communicate or publish, and the mode and style of the communication must rebut malice. The fact must be free from any circumstances showing malice; that is to say, a plea setting up a conditionally privileged publication, as this attempts to do, must show that on the occasion and in the manner the publication was made it was not malicious — must rebut the prima facie presumption of malice which arises from a publication of per se libelous matter. — Townsend on Slander & Libel, § 209, p. 296 et seq.; Odgers on Libel & Slander, p. 484; Bradstreet v. Gill, 72 Tex. 115, 9. S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768; Kent v. Bongartz, 15 R. I. 72, 22 Atl. 1023, 2 Am. St. Rep. 870; Grant v. Haynes, 105 La. 304, 29 South. 708, 54 L. R. A. 930; Holt v. Parsons, 23 Tex. 9, 76 Am. Dec. 51; Barrows v. Bell, 7 Gray (Mass.) 301, 66 Am. Dec. 479. A mere conclusion of the pleader to that effect is not sufficient. The facts averred do not support the conclusions of the pleader.

The minority are of the opinion that pleas 7 and 8 were had, and that the demurrers thereto should have been sustained. It is unnecessary to now pass upon the ■demurrers to the replications setting up justification; that 'is, the truth of the publication, as to which we hold the demurrers should have been sustained.

The replications are addressed to all the special pleas — those setting up justification, in that the publication was true, and also those setting up privileged publication; but few of the replications are apt, as replies to the pleas setting up the privileged publication, and those that are apt do not answer the whole of either plea, but only a part thereof, yet they are intended as answers to the whole of each plea. For that reason they were bad, and the demurrer taking this point was, therefore, properly sustained.

For the error in sustaining the demurrers to the pleas setting up the truth of the publication, the judgment is reversed, and the cause remanded.

Reversed and remanded.

All Justices concur in the reversal. Dowdell, C. J. and Simpson, Andeeson, and Sayee, JJ., however, do not concur in what is said as to the sufficiency of the pleas setting up privileged publication, but hold these pleas to be sufficient, and not subject to the demurrer. McClellan, Mayeield, and Evans, JJ., dissent from the decision of the majority as to the sufficiency of the pleas setting up privileged publication.