Adserv Corp. v. Lincecum
Decision Date | 05 May 1980 |
Docket Number | No. 13315,13315 |
Citation | 385 So.2d 432 |
Parties | ADSERV CORPORATION v. Hubert L. LINCECUM. |
Court | Court of Appeal of Louisiana — District of US |
Warren L. Mengis, Baton Rouge, for plaintiff-appellant Adserv Corp.
Fernin F. Eaton, Baton Rouge, for defendant-appellee Hubert L. Lincecum.
Before COVINGTON, LOTTINGER and COLE, JJ.
This is a suit for defamation filed by Adserv Corporation against Hubert L. Lincecum. From a judgment sustaining defendant's peremptory exception of no cause of action, plaintiff has appealed, and defendant has answered the appeal.
In its petition plaintiff alleges:
To the petition defendant filed various exceptions. He declined the jurisdiction of the court, arguing jurisdiction was constitutionally delegated to the legislature. He filed the dilatory exception of prematurity because there were ongoing legislative and criminal investigations. Additionally, he filed exceptions of vagueness, lack of procedural capacity and nonjoinder of necessary parties. Lastly he filed the peremptory exceptions of no cause of action, nonjoinder of an indispensable party, and no right of action or lack of interest in plaintiff to institute the suit. In addition to defendant's exceptions, plaintiff filed a motion for security for costs.
The trial judge overruled the declinatory exception of lack of jurisdiction over the subject matter; took the dilatory exception of prematurity and the motion for security for costs under advisement; maintained the peremptory exception of no cause of action and dismissed plaintiff's suit; and ruled moot the exception of no right of action and failure to join indispensable parties.
Defendant has answered the appeal as to those rulings of the trial court which either overruled exceptions, took them under advisement, or found them moot.
The peremptory exception of no cause of action is tried on the face of the petition, and "no evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action." La.C.C.P. art. 931.
The purpose of the exception of no cause of action is to determine whether under the allegations of the petition the law affords any remedy for the particular grievance complained of. Bamber Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212 (La.App. 1st Cir. 1977); Guillory v. Nicklos Oil and Gas Company, 315 So.2d 878 (La.App. 3rd Cir. 1975); American Bank & Trust Company v. French, 226 So.2d 580 (La.App. 1st Cir. 1969). And in determining whether the petition states a cause of action, every reasonable interpretation must be afforded its language so as to maintain the sufficiency of the petition and to afford plaintiff his day in court. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975).
Thus, with these well recognized rules in mind, we now proceed to determine whether the instant petition states a cause of action.
Because of public necessity and policy, certain utterances, communications and publications are afforded a privilege as defense against an action for libel and slander. This privilege is either absolute or qualified.
"An absolutely privileged communication is one in respect of which * * * no remedy can be had in a civil action, however hard it may bear upon a person who claims to be injured thereby, and even though it may have been made maliciously, and is false." 50 Am.Jur.2d Libel and Slander § 193 (1970).
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