Adams v. Alabama Lime & Stone Corporation, 6 Div. 962.

• Decision Date: 31 March 1932
• Docket Number: 6 Div. 962.
• Citation: 142 So. 424,225 Ala. 174
• Parties: ADAMS v. ALABAMA LIME & STONE CORPORATION ET AL.
• Court: Alabama Supreme Court

142 So. 424

225 Ala. 174

ADAMS v. ALABAMA LIME & STONE CORPORATION ET AL.

6 Div. 962.

Supreme Court of Alabama

March 31, 1932

Rehearing Denied June 9, 1932.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for libel by John H. Adams against the Alabama Lime & Stone Corporation, E. T. Schuler, R. N. McDonough, and Horace Wilkinson. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

See also, 222 Ala. 538, 133 So. 580.

W. A Denson, of Birmingham, for appellant.

Horace C. Wilkinson, pro se., of Birmingham, for appellees.

GARDNER J.

The action is libel. Though only partially exhibited in the complaint, it appears that the language of which complaint is here made consisted of averments in a bill of complaint filed in equity by defendant to this cause against the present plaintiff, and, while the purpose of the bill is not stated in the present complaint, and the prayer for relief is omitted as a part of the exhibit, yet it is reasonably inferable from the averments that are exhibited that they are appropriate and relevant in any equity proceeding, wherein an equitable set-off is sought to be established.

Based upon the broad principle of public policy, the English courts, deeming the absolute freedom of litigants, counsel witnesses, and all others required to speak or write in the cause of a judicial proceeding as of paramount importance, do not admit that any liability can exist to a civil action to words, whether spoken or written, in the cause and as a part of such a proceeding. It is a rule of absolute privilege without regard to the pertinency or relevancy of the language used.

But in the American courts, by the decided weight of authority, it is held that, in order that defamatory words used by the parties, counsel, or witnesses in a judicial proceeding be absolutely privileged, they must be relevant to the subject of inquiry. 36 Corpus Juris, 1251; 17 R. C. L. 335; note, 123 Am. St. Rep. 632, 633; Bussewitz v. Wis. Teachers' Ass'n, 188 Wis. 121, 205 N.W. 808, 42 A. L. R. 873, and note; Hardtner v. Salloum, 148 Miss. 346, 114 So. 621; Myers v. Hodges, 53 Fla. 197, 44 So. 357; Moore v. Manufacturers' Nat. Bank, 123 N.Y. 420, 25 N.E. 1048, 1049, 11 L. R. A. 753. The Court of Appeals of New York in the case last cited, has well and concisely stated the American rule and the underlying principle, in the following language:

"There is another class of privileged communications where the privilege is absolute. They are defined in Hastings v. Lusk, 22 Wend. [N. Y.] 410 . In this class are included slanderous statements made by parties, counsel, or witnesses in the course of judicial proceedings, and are libelous charges in pleadings, affidavits, or other papers used in the course of the prosecution or defense of an action. In questions falling within this absolute privilege the question of malice has no place. However malicious the intent, or however false the charge may have been, the law, from considerations of public policy, and to secure the unembarrassed and efficient administration of justice, denies to the defamed party any remedy through an action for libel or slander. This privilege, however, is not a license which protects every slanderous publication or statement made in the course of judicial proceedings. It extends only to such matters as are relevant or material to the litigation, or, at least, it does not protect slanderous imputations plainly irrelevant and impertinent, voluntarily made, and which the party making them could not reasonably have supposed to be relevant."

This court, in its early history, adopted the rule as above announced, and in harmony with the weight of authority in America. Lawson v. Hicks, 38 Ala. 279, 81 Am. Dec. 49. Speaking to this question, the court in this case said:

"Words, calumnious in their nature, may be deprived of their actionable quality by the occasion of their utterance or publication. When this is the case, they are called in the law of defamation privileged communications. These communications are either absolutely or conditionally privileged. When they are absolutely privileged, the law affords conclusive and indisputable immunity from suit. ***

"To the catalogue of absolutely privileged communications belong all words spoken or written by the court, the parties, or the counsel, in the due course of judicial proceedings, which may be relevant. The relevancy, or pertinency, of the calumnious matter is indispensible to its perfect and absolute freedom from all actionable quality; and being relevant, it can give rise to no civil responsibility, no matter how great the malignity or malice from which it may have originated."

The opinion further proceeds to hold that, although the language may be irrelevant, there would still be no liability if the party believed it was relevant, and had reasonable or probable cause to so believe; or, to state it differently, the words used would not be actionable, though irrelevant, unless it affirmatively appears that they were malicious and without reasonable or probable cause. But, with that feature of the discussion, we are not here concerned. Upon the question of relevancy, that is a matter for the determination of the court, and the adjudicated cases have established a liberal view in the interpretation of the language used, and all doubts are resolved in favor of its relevancy or pertinency. 36 Corpus Juris, 1252; 17 R. C. L. 336.

Illustrative of the liberal interpretation of pleading involving the question of relevancy is the decision of the Minnesota court in Burgess v. Turle & Co., 155 Minn. 479, 193 N. W. 945 (noted in Bussewitz v. Wis. Teachers' Ass'n, supra), where the following rule was stated: "Was the allegation so palpably wanting in relation to the...