Browning v. Birmingham News

• Decision Date: 10 June 1977
• Citation: 348 So.2d 455
• Parties: 2 Media L. Rep. 2251 Landon BROWNING v. BIRMINGHAM NEWS et al. SC 2061.
• Court: Alabama Supreme Court

Page 455

348 So.2d 455

2 Media L. Rep. 2251

Landon BROWNING v. BIRMINGHAM NEWS et al.

SC 2061.

Supreme Court of Alabama.

June 10, 1977.

Rehearing Denied Aug. 19, 1977.

Richard C. Duell, III, Birmingham, for appellant.

James C. Barton, Birmingham, for the Birmingham News Co.

Clarence Hanson and Tom Bailey, Robert R. Sexton, Birmingham, for City of Tarrant City and its Mayor, Evan Veal.

TORBERT, Chief Justice.

Plaintiff-appellant, Landon Browning filed a libel suit against the Birmingham News Company, its publisher, Clarence Hanson, and a staff writer, Tom Bailey. These defendants will be referred to at times in this opinion as the News defendants. Also joined as defendants in the suit were the City of Tarrant and its mayor, Evan Veal, who will be referred to as the Tarrant defendants. Both the News defendants and the Tarrant defendants filed motions to dismiss.

The News defendants filed an affidavit by Tom Bailey, the author of the article in question, which in essence stated that no statement in the article was made with the knowledge that it was false or with reckless disregard of whether it was true or false. No other affidavits were filed by any of the parties but the trial court allowed all parties to file briefs prior to his consideration of the motions to dismiss. The trial court then treated the motions to dismiss as motions for summary judgment and granted summary judgment as to all the defendants. The trial court did not specify his underlying considerations in finding that there were no genuine issues of material fact; however, this was not required under Rule 56, ARCP.

In his complaint Mr. Browning alleged that he was libeled by the publication of an article in the July 7, 1975, edition of the Birmingham News entitled "Tarrant Officials Say Taxi Service Bad, Want Upgrade." The entire article was not made a part of the record and is therefore not before this court. However, Browning did include in his complaint the following five paragraphs from the article which he alleged constituted the libel:

Section 2 "He said he intended to operate a small fleet of shiny new taxis, open an office on Main Street and offer service like Tarrant had never before experienced.

Section 3 "Well, the council was skeptical because the last city taxi company had been an exclusive sort of thing that operated on a wing and a prayer. But the councilmen agreed anyway to help the new cab company by at least discouraging other companies.

Section 4 "Today, the smooth-talking businessman has long since gone, the fleet of cars has dwindled to a single cab, and as Mayor Evan Veal tells it, 'We're being deluged with complaints . . . no one likes waiting two hours for a cab.'

Section 6 " 'We're going to do all we can to help (the Tarrant Taxicab Co.),' said Veal. 'We're going to bring in competition for him so he can either upgrade his service or get out.'

Section 7 "The mayor obviously was peeved over the situation, believing that he and other council members had gone out on a limb to favor a local businessman only to see that businessman's business decline and the number of complaints increase."

Browning attached to his complaint copies of written demands for retraction of the alleged libelous article which had been served on all the named defendants. It appears that in response to this demand, The Birmingham News published an article on July 11, 1975 entitled "Competition Not Bothering Tarrant Taxi Businessman." None of the contents of this article have been made a part of the record.

The principal issue before this court is whether the granting of summary judgment for both the News defendants and the Tarrant defendants was proper under the circumstances of this case.

It is, however, appellant Browning's initial contention that the trial court erred in converting the defendants' motions to dismiss into motions for summary judgment. Browning argues that this conversion was in violation of the requirements of Rule 12(c), ARCP, that all the pleadings must be closed before a trial court can treat a motion for judgment on the pleadings as a motion for summary judgment.

This argument overlooks the fact that the conversion here took place under the following provision of Rule 12(b), ARCP:

"If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

There is no showing of an abuse of discretion on the part of the trial judge in not excluding the affidavit of Tom Bailey nor is there a showing that all parties were not allowed an opportunity to present all pertinent materials in regard to the motion. Thus there was no error in converting the "motions to dismiss" into summary judgment motions. There was also no error in the trial court's granting the Tarrant defendants' motion for summary judgment.

Rule 56, ARCP, provides that a motion for summary judgment shall be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. This court has also stated that the burden is upon the moving party to clearly show that the other party could not recover under any discernible circumstances. Folmar v. Montgomery Fair Company, 293 Ala. 686, 309 So.2d 818 (1975). The movant's burden is substantially increased by the scintilla of evidence rule which requires that if there is a scintilla of evidence supporting the position of the party against whom the motion for summary judgment is made, then summary judgment may not be granted. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).

The Tarrant defendants and the News defendants both present the argument that Mayor Veal was cloaked with a privilege in making the comments attributed to him in the July 7th News article. They argue first that this privilege is "absolute" and therefore he is immune from a defamation suit as is any newspaper which reports such statements. Defendants cite the case of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), as authority for this contention.

We are not persuaded by this argument and reiterate that in this jurisdiction, the only absolutely privileged communications recognized under the law of defamation are those made during legislative or judicial proceedings, or contained in legislative acts of this state which are made under authority of law. O'Barr v. Feist, 292 Ala. 440, 296 So.2d 152 (1974); Tonsmeire v. Tonsmeire, 281 Ala. 102, 199 So.2d 645 (1967).

Alternatively, the defendants contend that Mayor Veal had a "qualified" privilege to make these remarks. The test for determining if a communicating party has a conditional or qualified privilege was most recently set forth by this court in Willis v. Demopolis Nursing Home, Inc., Ala., 336 So.2d 1117 (1976).

" 'Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged, if made in good faith and without actual malice. * * * The duty under which the party is privileged to make the communication need not be one having the force of legal obligation, but it is sufficient if it is social or moral in its nature and defendant in good faith believes he is acting in pursuance thereof, although in fact he is mistaken.' " (Emphasis added.)

336 So.2d at 1120, quoting Berry v. City of New York Ins. Co., 210 Ala. 369, 98 So. 290 (1923).

This court in Willis v. Demopolis Nursing Home, Inc., supra, also held that the question of whether a communication is privileged by reason of its character or by reason of the occasion on which it was made is a question of law.

The communication directly attributed to Mayor Veal in the News article is found in sections 4 and 6 of the article and is as follows:

"We're being deluged with complaints . . . no one likes waiting two hours for a cab . . . we're going to do all we can to help. We're going to bring in competition for him so he can either upgrade his service or get out."

Under the circumstances of this case, Mayor Veal's communication, quoted above, was conditionally privileged. As a result, the law in this state required that in order for Browning to have stated a cause of action against the Tarrant defendants it was necessary for him to have alleged and proved actual malice. Willis v. Demopolis Nursing Home, Inc., Ala., 336 So.2d 1117 (1976); O'Barr v. Feist, 292 Ala. 440, 296 So.2d 152 (1974).

Browning neither alleged nor did he offer any proof of actual malice on the part of the Tarrant defendants. Accordingly, the granting of summary judgment for Mayor Veal and the City of Tarrant was appropriate.

The balance of the article, which was not directly attributed to Mayor Veal, cannot be considered as being conditionally privileged in that it appears to be a translation and interpretation on the part of the News staff writer and amounts to a subjective analysis of a party who is not subject to the privilege. As a result, the granting of summary judgment for the News defendants could not have been properly grounded on privilege.

The News defendants strongly contend that if the words in this article are accorded their natural meaning that the article is not capable of a defamatory meaning as a matter of law. They also argue that the communication is actually no more than rhetorical hyperbole or a vigorous epithet analogous to the...