Hardtner v. Salloum

• Decision Date: 21 November 1927
• Docket Number: 26696
• Citation: 148 Miss. 346,114 So. 621
• Court: Mississippi Supreme Court
• Parties: HARDTNER v. SALLOUM. [*]

114 So. 621

148 Miss. 346

HARDTNER v. SALLOUM. ^[*]

No. 26696

Supreme Court of Mississippi

November 21, 1927

(Division A.)

1. LIBEL AND SLANDER. Allegation of conspiracy to cast cloud on complainants' title, in suit to remove cloud on title held pertinent, material, and necessary to issue presented and therefore privileged.

Allegation that conveyance from grantor of complainants to her son was made pursuant to conspiracy between son and H. to cast cloud upon complainants' title and to cheat and defraud complainants by extorting money from them held pertinent material, and necessary to issue presented in suit to cancel deed to son and remove cloud on title, and therefore privileged, where grantor, after conveyance to son, executed deed to complainants correcting original deed covering same property, thus giving notice to son that he was holding deed as cloud upon complainants' title.

2. LIBEL AND SLANDER. Defamatory words in judicial proceedings must be pertinent or relevant to be privileged.

Defamatory words in judicial proceedings must be pertinent or relevant in order to be privileged, and, when not pertinent or relevant to issue, they are not privileged, and an action will lie upon them.

3. LIBEL AND SLANDER. Everything pertinent that pleader might need to buttress his case should be permitted to be set forth in pleading, without liability for libel.

Everything pertinent or relevant that pleader might possibly need to buttress his case should be permitted to be set forth in pleading presented to courts for redress of wrong or accomplishment of right, without making pleader liable for libel.

4. LIBEL AND SLANDER. Deed casting cloud on vendor's title affected subsequent purchaser who, with vendor, filed bill containing alleged defamatory matter to set aside deed.

Deed casting cloud upon vendor's title, executed before defendant in libel suit purchased, affected title of defendant who, with vendor, filed bill, containing alleged defamatory matter, to cancel deed and remove cloud on title.

5. LIBEL AND SLANDER. Question of relevancy of alleged defamatory matters contained in pleadings, when in issue, is question of law for court, and courts favor liberal rule regarding relevancy necessary to make them privileged.

Question of relevancy or pertinency of alleged defamatory matters contained in pleadings, when in issue, is never for jury, but is question of law for court, and courts favor liberal rule as to degree of relevancy or pertinency necessary to make such matters privileged.

Division A

APPEAL from circuit court of Harrison county.

HON. W. A. WHITE, Judge.

Action by W. F. Hardtner against George Salloum. From a judgment dismissing plaintiff's cause, he appeals. Affirmed.

Affirmed.

T. M. Evans and T. J. White, for appellant.

While the law is well settled in Mississippi that the allegations and matters contained in the pleadings as between the parties to the suit in the testimony of witnesses given on the hearing are privileged communications and no action at law can be sustained against the pleader or witnesses for defamation of character on account of the testimony given of the allegations contained in the pleading, the courts of Mississippi have never before held and we hope that they never will hold that a party to a suit can willfully, falsely and maliciously publish in any pleading scandalous or irrelevant matter against all of the opposite parties' kinfolks, neighbors and friends as privileged communication.

The matters charged as to this appellant are alleged in the declaration to have been false and willfully published which is admitted to be true by the demurrer. This appellant was not a party to the suit or in any manner connected with it. Anything this appellant could have said or done could not have effected the appellee in this cause, from whom it is charged that this appellant had conspired with others to extort money, as the appellee herein was not the owner of the land at the time the alleged deed of February 8th was secured by B. B. Burrill.

The only issue involved in the case was whether or not Mrs. S.E. French was the equitable owner of the land conveyed to B. B. Burrill by Mrs. Burrill on the 8th day of February, 1926, and if she was the equitable owner then, did B. B. Burrill secure his deed without a valuable consideration and without knowledge of the fact that Mrs. S.E. French was the equitable owner of said property?

This appellant was not a party to the proceedings and had no opportunity to appear and defend the suit, and thereby exonerate himself from the scandalous allegations contained in the bill of complaint.

The question of privileged communication is thoroughly discussed in the case of Hines v. Shumaker, 97 Miss. 669, 52 So. 705. See, also, Abraham v. Baldwin, 52 Fla. 151, 42 So. 591, 10 L. R. A. (N. S.) 1051; Odgers on Slander and Libel, pp. 286, 287; Cook on Defamation, 35; Newell on Slander and Libel (2 Ed.), 108, 65 and 67.

There is no reason peculiar to court proceedings that would render everything contained in a proceeding a privileged communication, without regard to the persons mentioned, and notwithstanding they were not parties to the suit and had no opportunity to answer the malicious and libelous matter or whether they had any interest in the suit or not. It will be a vain thing for the courts to hold that a malicious person may file a suit against one individual and because it is a court proceeding, he may proceed to slander the good name and reputation of any and every person in the community. Kemper v. Fort, 219 Pa. St. 85; 17 R. C. L., par. 83, pp. 335-336; Ruohs v. Backer's Next Friend (Tenn.), 19 Am. Rep. 558 to 603; Jones v. Brownslee (Mo.), 53 L. R. A. 448;

"Contrary to the doctrine of the English courts, the American courts generally have established the rule that matter inserted in a pleading in a civil action is not absolutely but only conditionally or qualifiedly privileged; that is, the alleged libelous matter is privileged when, and only when, it is relevant or pertinent to, or connected with the subject-matter of the litigation." 12 Eng. & Am. Ann. Cas. 1026, and cases there cited.

R. A. Wallace and J. L. Taylor, for appellee.

The statements made in the bills of complaint to which the appellant makes objection and on which he seeks to found his suit, were absolutely privileged, because the statements were pertinent and relevant to the subject-matter then under inquiry. 17 R. C. L., sec. 83, p. 336; Wilson v. Sullivan, 81 Ga. 238; Gaines v. Aetna Insurance Co., 104 Ky. 695; Jones v. Brownlee, 161 Mo. 258; Crockett v. McLanahan, 109 Tenn. 517.

In Abbott v. National Bank of Commerce, et al., 44 L.Ed. 217, the supreme court of the United States upheld this rule and said: "The trial court, on motion for judgment on the pleading, dismissed the suit upon the ground that the facts stated did not constitute a cause of action, and because the matter alleged to be libelous was privileged." Under the statement of the facts in that case, we regard it as decisive of the case at bar. See, also, Newell on Slander and Libel (3 Ed.), sec. 516, p. 513.

Replying to the brief of counsel for appellant, and the numerous authorities cited by him, it seems fair to say that in the main he is proceeding on the theory of qualifiedly privileged communications, and not on those matters that are absolutely privileged, but in the first authority referred to of 12 Ann. Cas. 1026, he states the rule in the quotation to be: "that is, the alleged libelous matter is privileged when, and only when, it is relevant or pertinent to, or connected with, the subject-matter of the litigation."

The action of the court in sustaining the demurrer and dismissing the declaration was proper.

OPINION

MCGOWEN, J.

W. F. Hardtner, appellant here, filed his declaration in the circuit court of Harrison county, alleging damages on account of certain libelous matter contained in a chancery court bill filed by George Salloum and another against Hardtner and others, in the chancery court of Harrison county. A demurrer was interposed and sustained to the declaration, and, the court having offered the plaintiff further time in which to plead, and the plaintiff having declined to plead further, the cause was finally dismissed, and appeals here.

The bill in chancery, certain parts of which were charged to be libelous and maliciously false, was made an exhibit to the declaration, and the main feature of the bill was to cancel a certain deed and to remove a cloud from the complainant's title. This bill was originally filed by Mrs. S.E. French and George Salloum v. B. B. Burrill. At the same January, 1927, term, an amended bill was filed by the same complainants in which W. K. Ferguson was made a party defendant, which amended bill was of the same tenor and effect as the original bill. Both the original and amended bills charged that George Salloum had purchased from Mrs S.E. French, his co-complainant, lots 13 and 14, block 23, of Standard Land Company's addition to Gulfport, Miss., except a certain portion to which he had already acquired title; and further charged that this deed was executed by Mrs. French to Salloum on the 12th of February, 1926; that Salloum had executed in favor of Mrs. French a deed of trust to secure the payment of three promissory notes, each for five thousand dollars, part of the purchase price of this land. The bills further alleged that, in pursuance of an option granted by Mrs. E. S. Burrill to J. C. French on March 1, 1920, said Mrs. Burrill, joined by Mrs. Clara B. Hardtner, executrix of the estate of E. S. Burrill, conveyed to J. C. French and Mrs. S.E. French all of said lots 13 and 14, but, by error, a strip in the northeast corner of...