Crowell v. Herring
| Decision Date | 24 January 1990 |
| Docket Number | No. 1482,1482 |
| Citation | 301 S.C. 424,392 S.E.2d 464 |
| Parties | William C. CROWELL, Appellant, v. Hoyt D. HERRING, C. Michael Herring, Hoyt's Music Co., Inc., Lawrence E. Wilder and Henry S. Allen, Sr., Respondents. . Heard |
| Court | South Carolina Court of Appeals |
Joseph H. Lumpkin, Jr., and Thomas E. Elliott, Jr., of the Elliott Law Firm, Columbia, for appellant.
Robert C. Brown, H. Dewain Herring, Jr., and Theodore von Keller, Columbia, for respondents.
Plaintiff, William H. Crowell (Crowell) sued defendants Hoyt D. Herring (H. Herring), C. Michael Herring (Herring), Hoyt's Music Co., Lawrence E. Wilder (Wilder) and Henry S. Allen, Sr., (Allen) for slander, libel and malicious prosecution. The trial court granted defendants' motions for summary judgment on the slander and libel causes of action. The malicious prosecution cause of action went to trial whereupon the jury returned a verdict for Crowell against C. Michael Herring in the amount of $8,000. The trial court granted Herring's motion for a judgment n.o.v. Crowell appeals the granting of summary judgment on the slander and libel actions and the granting of judgment n.o.v. on the malicious prosecution action. We affirm.
William H. Crowell was Commander of the Columbia Post # 641 Chapter of the Veterans of Foreign Wars (VFW). At the VFW were four video machines maintained by Hoyt's Music Co. The profits from the video machines were split 50-50 between the VFW and Hoyt's Music Co.
In September of 1985, Crowell had a discussion with Herring, president of Hoyt's Music Co., whereby Crowell requested that Herring place two additional video machines at the VFW. Crowell told Herring he thought the VFW should receive a larger percentage of the profits, specifically the entire profits generated by the two lowest grossing machines, along with the 50-50 division of the profits from the other four machines. Crowell told Herring the additional money generated by the new machines would be used to send VFW delegates to the National Convention.
Herring testified the new arrangement involved his leaving an envelope with Crowell's name on it, along with the amount of profits from the two lowest grossing machines written in the right hand corner of the envelope, with Hazel Eberhardt, the VFW canteen manager. Crowell admitted discussing a new arrangement on the video machines with Herring, but denied making any agreement.
Later in September Herring installed two additional video machines in the VFW. Herring testified he began leaving the aforementioned envelopes, with Crowell's name on them, at the canteen.
Mrs. Eberhardt testified that on one occasion she received an envelope from Herring, after he checked out the machines and counted the profits. She asked Crowell what the envelope meant and Crowell confirmed the VFW was getting 100 percent of the profits from two of the video machines. Eberhardt testified Herring left an envelope each week she was there from September 1985 to December 1985. Eberhardt testified she deposited all money into the safe. Crowell had access to the safe.
On January 8, 1986, Crowell instructed Herring to revert to the way he checked the machines prior to September of 1985, that being a 50-50 split of all proceeds. Herring testified Crowell requested this reversion because a new Quartermaster of the Post would be present during the check-up of the video machines. Crowell denied the reversion was necessary because a new Quartermaster would be present at check-up. Rather, he was concerned about avoiding the appearance of a kickback.
Herring testified Crowell later told him the new Quartermaster was no longer there and to revert to the arrangement in place from September 1985 to December 1985. Herring then told his father Hoyt Herring (H. Herring), Chairman of Hoyt's Music Co., about the arrangement. H. Herring advised his son to discuss the matter with Ralph Pelkey, a long-time VFW Allen requested Herring prepare an affidavit which he did on February 10, 1986, describing his version of the arrangement(s) between Crowell and him. On August 1, 1986, Herring executed another affidavit correcting what he deemed improper use of terminology in the first affidavit.
member and former Quartermaster. Pelkey directed Herring to talk with Henry Allen, a VFW trustee. Allen was immediately notified and met with Herring
Later Herring and his father surreptitiously tape recorded a meeting with Crowell. In the tape, Crowell refers to a "rebate" Herring had been giving the VFW, and Crowell discussed the possibility of purchasing video machines from Hoyt's Music Co. for his personal use.
After meeting with Herring and Pelkey, Allen contacted an attorney who advised him to examine the records for evidence of irregularity. Upon examination of the records from the VFW and Hoyt's Music Co., the trustees, with help from a certified public accountant, discovered thousands of dollars were missing based on the amounts Herring reported on Hoyt Music Co.'s records.
The trustees then met with Crowell and confronted him with the evidence they had accumulated. Allen testified Crowell offered to pay $7,000 to $8,000 in restitution and wanted the matter kept quiet. Crowell testified he offered to "step aside." The trustees refused to deal and Crowell resigned.
The new Commander Carl Robinson appointed an investigatory committee to look into the allegations against Crowell. The committee unanimously recommended court-martialing Crowell. The subsequent court-martial resulted in an acquittal on all charges against Crowell.
I. Did the trial court err in granting defendants' motions for summary judgment on the slander and libel causes of action?
II. Did the trial court err in granting a judgment n.o.v. in favor of defendant C. Michael Herring after the jury returned a verdict for plaintiff William H. Crowell?
As noted above Crowell sued Herring, H. Herring, Wilder, Allen and Hoyt's Music Co., (defendants) for slander and libel. Wilder and Allen were trustees of the VFW Post who initially investigated the charges against Crowell. Herring and H. Herring were principals in Hoyt's Music Co., the company that maintained the video machines at the VFW. Crowell alleged Herring libeled him by the two affidavits Herring wrote detailing their relationship. Specifically, Crowell complained of language that appeared in Herring's affidavit # 1 but was corrected as improper terminology in Herring's affidavit # 2. The language Crowell complained of read "we put the two extra machines in as directed and began giving him what he required on September 16, 1985, and weekly thereafter until December 30, 1985, for a total of $6,212.00, "which he received during this period." [Emphasis added.] Affidavit # 2 corrected the emphasized language to read "which was left at the Post during this period." Allen then received Herring's affidavit # 1 and discussed it with Wilder. Allen and Wilder were subsequently named by Commander Robinson to the committee investigating Crowell. According to Crowell's responses to interrogatories, Allen and Wilder were sued for republishing the slander and libel appearing in Herring's affidavits and for their role in the investigation of Crowell. H. Herring was sued because of statements he made at Crowell's court-martial hearing.
All defendants moved for summary judgment on a theory any statements alleged by Crowell to be defamatory took place within a judicial proceeding and consequently were absolutely privileged.
The common law rule protecting statements of judges, parties and witnesses offered in the course of judicial proceedings from a cause of action in defamation is well recognized in this jurisdiction.
Vausse v. Lee, 1 Hill 197, 26 Am.Dec. 168 (1833); Corbin v. Washington Fire & Marine Ins. Co., 278 F.Supp. 393, (D.S.C.1968), aff'd 398 F.2d 543 (4th Cir.1968). See generally Restatement (Second) of Torts Sections 585, 587, 588 (1977). The privilege affords absolute protection upon a bipartite showing that the statements were [301 S.C. 430] issued as part of a judicial proceeding and the alleged defamation is relevant to a matter at issue in the case. Corbin
The trial court held the VFW court-martial was a judicial proceeding. Crowell does not appeal this finding, nor does he argue the defendants' statements were irrelevant to the issues he was eventually brought to trial on. The next and more important question is whether the actions of the defendants', as alleged by Crowell, took place within the scope or course of the VFW court-martial.
Historically there has been a tendency to restrict the absolute privilege to judicial proceedings, legislative proceedings and acts of state. Richardson v. McGill, 273 S.C. 142, 255 S.E.2d 341 (1979). But see Corbin v. Washington and Marine Ins. Co., supra. This is so, ostensibly, because when a communication is absolutely privileged, no action will lie for its publication. Richardson v. McGill, supra. 1 This, however, does not answer the question of whether there is or has been a tendency to restrict the definition of "judicial proceeding" to exclude preliminary steps leading up to a formal judicial proceeding. Previous decisions of our Supreme Court have afforded the privilege to pleadings, affidavits sworn before a magistrate and letters between counsel in litigation. 2 There have been, however, no decisions pertaining to depositions, briefs or informal affidavits sworn to before someone other than an officer of the court. We hold the absolute privilege exists as to any utterance arising out of the judicial proceeding and having any reasonable relation to it, including preliminary steps leading to judicial action of any official nature provided those steps bear reasonable relation to it. Cf. Restatement (Second) of Torts Section 587 comment e (1977).
The record reflects no statements by H. Herring outside his testimony at the court...
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