Gardemal v. McWilliams

• Decision Date: 01 April 1891
• Docket Number: 10,788
• Citation: 43 La.Ann. 454,9 So. 106
• Court: Louisiana Supreme Court
• Parties: GABRIEL GARDEMAL v. JACOB MCWILLIAMS

9 So. 106

43 La.Ann. 454

GABRIEL GARDEMAL v. JACOB MCWILLIAMS

No. 10,788

Supreme Court of Louisiana

April 1, 1891

APPEAL from the Twenty-third District Court for the Parish of Iberville. Talbot, J.

Felix Voorhies and J. Hamilton Rills, for Plaintiff and Appellant.

Sims &amp Goudran and A. Talbot, for Defendant and Appellee.

MCENERY J. BREAUX, J. takes no part in this opinion.

OPINION

MCENERY, J.

The plaintiff sued the defendant for libel and slander.

The alleged libel and slander is contained in the petition in the suit of Jacob McWilliams vs. Justinien Michel.

The object of the suit was to have declared absolutely null and void a certain tax sale of the plaintiff's property.

The language used is of that character which, if not classed as a privileged communication, malice would be presumed and damages assessed, unless justified by the defendant. It will not be necessary to reproduce the language employed in the petition in said suit of McWilliams vs. Michel.

The defence is that the libel and slander is a privileged communication; that it was used in the petition in said suit without malicious intent, upon the advice of counsel, in the prosecution of his legal rights.

The trial was by jury and there was a judgment and verdict in favor of defendant, from which the plaintiff appealed.

In the suit of McWilliams vs. Michel, out of which grew this suit, the plaintiff alleged that he was the owner of certain property, upon which all the taxes had been paid, and that the sheriff illegally and wrongfully sold the same at tax sale, and adjudicated the same to Michel. That said property was confusedly sold with property belonging to Wilbur & Sons, although he held a distinct title to same, which was known to said sheriff and tax collector, Gardemal.

That he wrongfully adjudicated said property to said Michel, who forcibly got possession of the same through the pretended tax sale.

That his property and that of Wilbur & Sons was sold at said tax sale as the property of Breaux and Duperrier, when said sheriff and tax collector knew that said property was owned by him and Wilbur & Sons. That he knew the taxes had all been paid on said property. That after said sale to Michel, he entered into an agreement with Titus Gardemal, the brother of said Gabriel Gardemal, sheriff and tax collector, to cut down and remove timber from said property.

He alleges that said sheriff, Gardemal, failed to offer said property for sale on the day advertised, because there were many bidders present, and that he postponed said sale to a different day, when it was sold as alleged. In these acts of the sheriff, it is alleged he conspired with his brother, Titus Gardemal, and Justinien Michel, in order, through a pretended tax sale, to get possession of the property of the petitioner.

An injunction was prayed for against Michel, and a judgment was prayed for quieting petitioner in his title to said property.

This is but a brief summary of the many allegations in the petition.

There was evidence introduced on the trial to prove the falsity of the severe charges in the petition.

They may be unfounded and false in fact, and yet defendant may not be responsible in damages for the language used in the petition. In privileged communications the party is protected from the infliction of damages, unless the occasion was used as a means of inflicting a wilful and malicious injury upon the plaintiff.

The occasion on which a...