Crockett v. McLanahan

• Decision Date: 14 February 1903
• Citation: 72 S.W. 950,109 Tenn. 517
• Parties: CROCKETT v. McLANAHAN.
• Court: Tennessee Supreme Court

72 S.W. 950

109 Tenn. 517

CROCKETT v. McLANAHAN.

Supreme Court of Tennessee.

February 14, 1903

Appeal from Circuit Court, Davidson County; Jno. W. Childress Judge.

Action to recover damages for libel brought by John A. Crockett against J. Craig McLanahan. A demurrer to the declaration was sustained, and plaintiff appeals. Affirmed.

J. C Bradford and Jno. J. Vertrees, for appellant.

Gen Washington and J. M. Head, for appellee.

McALISTER J.

The question presented for our determination upon this record is whether a party to a judicial proceeding is liable in damages to a stranger to the record for defamatory matter alleged in the pleading concerning him, or whether said matter, being pertinent and relative to the issue, is not absolutely privileged. The allegations of the declaration are that on June 2, 1902, the defendant, J. Craig McLanahan, filed a bill in the United States Circuit Court for the Middle District of Tennessee, in which it was averred that on the 8th of August 1901, an election was held in the city of Nashville to determine whether the city should subscribe $1,000,000 of the capital stock of the Nashville & Clarksville Railroad Company, and that at said election the plaintiff (Crockett) was an illegal voter, for the reason that, after being registered in the Twentieth Ward, he had changed his residence, and had not again registered 20 days before said election, as required by law, and yet cast his vote at said railroad election. It is alleged that defendant (McLanahan) in said bill meant to charge that plaintiff (Crockett) was an illegal voter in said election, and guilty of a high misdemeanor and a violation of the criminal laws of Tennessee. It is alleged in the second count of plaintiff's declaration that said allegations were made falsely, recklessly, wantonly, with actual malice, and in bad faith; that they were made without probable cause, and not under such circumstances as reasonably created a belief in the mind of defendant (McLanahan) that they were true. It is further alleged that plaintiff was not a party to said suit in the federal court and had no interest in it. A demurrer was interposed to this declaration, which assigned the following causes, to wit: "(1) It shows on its face that the alleged libelous publication is an averment in a bill filed by this defendant and others, as complainants, in the Circuit Court of the United States for the Middle District of Tennessee, against the Tennessee Central Railroad et al., to enjoin the issuance of bonds by the mayor and city council of Nashville in payment of a subscription to the capital stock of said railway, upon the ground, among others, that said subscription did not receive the requisite three-fourths of the votes cast at the election held with respect thereto, and that plaintiff's vote and the votes of others were counted for said proposition when they were illegal and void, for that said voters were not duly registered and voted in wards in which they did not reside. Defendant says that the alleged illegal, libelous statement is a pleading in a judicial proceeding in said court, which does not assail the plaintiff's character, and therefore is absolutely privileged, and that this suit cannot, for that reason, be maintained against him. (2) The declaration does not show that said suit is still pending, undetermined, and that therefore this suit is premature, and cannot now be prosecuted against this defendant." At the September term, 1902, of the circuit court of Davidson county, Hon. John W. Childress, presiding, the demurrer was sustained and the suit dismissed. Plaintiff appealed, and has assigned as error the action of the circuit court in sustaining the demurrer.

The determinative question of law arising upon the pleadings is whether the alleged defamatory matter was absolutely, or only conditionally, privileged. The rule on this subject at common law was thus stated by Mr. Townshend in his work on Slander and Libel (4th Ed., § 221), viz.: "In a civil action, whatever the complainant may allege in his pleading in connection with his grounds of complaint can never give a right of action for libel. The immunity thus enjoyed by a party complaining extends also to a party defending. Whatever one may allege in his pleading by way of defense to the charge brought against him, or by way of countercharge, counterclaim, or set-off, can never give a right of action." This rule was adopted in this state at an early day, but it was coupled with the qualification that the alleged defamatory matter must be pertinent or material to the subject of inquiry in the particular litigation. In Lea v. White, 4 Sneed, 113, it was said, viz.: "The communications are, on account of the occasion on which they are made, prima facie, or, as the books have it, 'conditionally,' privileged--that is, they do not amount to defamation (actionable) until it appears that the communication had its origin in actual malice in fact. In such cases it will be incumbent on the plaintiff to show, in addition to the injurious publication, malice in fact and that the occasion was seized upon as a mere pretext. Illustrations of this class of communications are statements in respect of the character of servants, official communications, reports of judicial proceedings, etc. But," continues the court, "there is another class of cases which are absolutely privileged and depend in no respect for their protection upon their bona fides The occasion is an absolute privilege; and the only questions are whether the occasion existed, and whether the matter complained of was pertinent to the occasion. In this class are embraced judicial proceedings. The proceedings connected with the judicature of the country are so important to the public good, the law holds that nothing which may therein be said with probable cause, whether with or without malice, can be slander, and in like manner that nothing written with probable cause under the sanction of such an occasion can be a libel. The pertinency of the matter to the occasion is that which is meant by probable cause, and probable cause is in this class of absolutely privileged communications what bona fides is to the class of conditionally privileged communications, which are protected unless there is malice in fact."

It will be observed that the cardinal inquiry is whether the alleged defamatory matter is pertinent to the issue involved. As said by this court in Shadden v. McElwee, 86 Tenn. 152, 5 S.W. 604, 6 Am. St. Rep. 821, "where the matter alleged is pertinent to the issue, or fairly supposed to be so, although not in the strictest sense relevant, the pleader is absolutely privileged, although he may have entertained sentiments of malice to the adverse party." It is, moreover, the rule that the question of pertinency or relevancy is a question of law for the court. Lea v. White, 4 Sneed, 111; Shadden v. McElwee, 86 Tenn. 152, 5 S.W. 602, 6 Am. St. Rep. 821; Jones v. Brownlee (Mo.) 61 S.W. 795, 53 L. R. A. 448. It cannot be seriously controverted that the allegations of the bill in the United States Circuit Court with respect to the disqualifications of the plaintiff as an elector in the election of August 8, 1901, were pertinent and relevant to the matter of inquiry in that suit. The legality of the election was challenged in that proceeding upon the ground that the municipal aid subscription had not been carried by a three-fourths majority of the voters, as required by law. It was necessary that the bill should specifically recite the names of the disqualified voters, in order that an issue might be made in respect of their qualifications. Moore v. Sharp, 98 Tenn. 493, 41 S.W. 587; Blackburn v. Vick, 2 Heisk. 383. The name of the plaintiff was included in a list of about 50 citizens of the Twentieth Ward, who were alleged to have been disqualified to vote in said election on account of a failure to re-register after changing their residence in said ward 20 days before the election. The matter alleged being pertinent to the issue, it was absolutely privileged, and it is wholly immaterial whether the element of malice entered into the charge. As said in Lea v. White, supra: "It certainly cannot be maintained that, because a person is malicious in his statements toward the adverse party, he will not be permitted to set up in his defense any matter that he may reasonably suppose would be available."

It is alleged in the declaration there was no probable cause, or that defendant could not have reasonably supposed it necessary in his case, to have alleged the libelous matter. It is said the demurrer admits this allegation. It is well settled that "a demurrer does not admit inferences from facts, nor conclusions of law averred." 6 Ency. Plead. & Prac. 336; Park v. Kelly Axe Co., 1 C. C. A. 395; 49 F. 618; Kent v. Lake Sup. Ship Canal Co., 144 U.S 75, 12 S.Ct. 650, 36 L.Ed. 352; Foster's Fed. Practice, § 106; Hopper v. Town of Covington, 118 U.S. 148, 151, 6 S.Ct. 1025, 30 L.Ed. 190; Greeff v. Society (N. Y.) 54 N.E. 712, 46 L. R. A. 288, 73 Am. St. Rep. 659. "Averments in a declaration as to the meaning and interpretation of a writing attached thereto, or exhibited, are not admitted by a demurrer." National Park Bank v. Halle, 30 Ill.App. 17; 6 Ency. Plead. & Prac. 337, 397; Foster's Fed. Practice, § 106. "Neither does a demurrer admit matters averred in the declaration contrary to law." L. & N. R. R. Co. v. Palmes, 109 U.S. 244, 3 S.Ct. 193, 27 L.Ed. 922; 6 Ency. Plead. & Prac. 338, 398; Foster's Fed. Practice, § 106; Hooper v. Town of Covington, 118 U.S. 148, 151, 6 S.Ct. 1025, 30 L.Ed. 190. As already seen, the pertinency of the matter to the occasion is that which is meant by probable cause. The pertinency of the matter to the issue...