Higgins v. Williams Pocahontas Coal Co, (C. C. No. 397.)

• Citation: 138 S.E. 112
• Decision Date: 26 April 1927
• Docket Number: (C. C. No. 397.)
• Court: Supreme Court of West Virginia
• Parties: HIGGINS. v. WILLIAMS POCAHONTAS COAL CO. et al.

138 S.E. 112

HIGGINS.

v.WILLIAMS POCAHONTAS COAL CO. et al.

(C. C. No. 397.)

Supreme Court of Appeals of West Virginia.

April 26, 1927.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Case Certified from Circuit Court, McDowell County.

Action by P. M. Higgins against the Williams Pocahontas Coal Company and another for libel. The trial court sustained the named defendant's demurrer to the declaration, and overruled the demurrer of defendant H. E. Ewing, and certified the case. Affirmed.

Russell S. Ritz, of Bluefield, for plaintiff.

Strother, Sale, Curd & Tucker, of Welch, and W. Goodridge Sale, Jr., of Richmond, Va., for defendants.

HATCHER, P. This Is an action for libel. The lower court sustained the demurrer of the defendant Williams Pocahontas Coal Company to the declaration, overruled that of the defendant H. E. Ewing, and certified the case here for guidance.

The material allegations of the declaration are: That the plaintiff made claim to the workman's compensation commissioner of West Virginia for compensation for injury to an eye, sustained while working in the mines of the defendant company in the year 1924. That, after proof was submitted and a careful investigation made, an award of $16 a week for 100 weeks was made to the plaintiff on May 23, 1925, by the commissioner, and shortly afterwards a voucher for $224 on the award was mailed to the plaintiff in care of the defendant company. That in June, 1925, the defendants, contriving to injure the good name of the plaintiff, wrote a letter to the commissioner, which is in part as follows:

"In regard to the P. M. Higgins case, No. 4071-70. He was injured some years ago in Virginia by chip striking him in the eye. Since that time he has been known as 'Pink Higgins, ' deriving above name from pink patch worn over eye. He has been practically blind in this eye for last five years, and has been drawing sick benefits from his lodges and insurance companies. One company refused to carry him without a rider with policy, stating that they would pay no more sick benefits for this eye.

"Dr. Perry knows nothing about the case, but was possibly honest in his belief that loss of eye was caused by injury received in the mines.

We want this case thoroughly investigated before anything is paid on this claim.

" * * * Wire or write us to hold up any cheeks that may have been written on this case."

That the statements in the letter are false. That, because of the letter, the award was set aside and not reinstated until April, 1926, and that the good name of plaintiff has been greatly injured, etc.

The defendant company takes the position that the letter complained of is the communication to a quasi judicial tribunal of a party interested in the subject-matter then under investigation, and is therefore absolutely privileged.

Counsel for plaintiff concedes that the compensation commissioner acts in a quasi judicial capacity in determining claims such as that of plaintiff, and that a witness testifying in a "regular mauner" before the commissioner would be exempt from liability for any statements then made. Counsel advocates the theory that, in order to warrant such exemption, it must appear that the communication is in response to a question asked in a case then pending. Counsel contends that in this case the letter was not in response to an inquiry of the commissioner, but that it was written at a time when no hearing was pending before the commissioner, after all the evidence had been heard on plaintiff's claim and the award made, and is therefore not entitled to...