Independent Life Ins. Co. v. Rodgers

• Decision Date: 10 January 1933
• Citation: 55 S.W.2d 767
• Parties: INDEPENDENT LIFE INS. CO. v. RODGERS.
• Court: Tennessee Supreme Court

55 S.W.2d 767

INDEPENDENT LIFE INS. CO. v. RODGERS.

Supreme Court of Tennessee.

January 10, 1933.

Error to Circuit Court, Hamilton County; L. D. Miller, Judge.

Action by C. E. Rodgers against the Independent Life Insurance Company. Judgment for plaintiff was reversed by the Court of Appeals, which dismissed the suit, and both parties bring certiorari.

Judgment of Court of Appeals affirmed.

Finlay & Campbell, of Chattanooga, and James A. Newman, of Nashville, for plaintiff in error.

Whitaker & Whitaker, of Chattanooga, for defendant in error.

GREEN, C. J.

This is a libel suit in which the jury returned a verdict in favor of the plaintiff below for $25,000. A remittitur of $10,000 was suggested, and accepted under protest, and judgment entered in the trial court for $15,000. The Court of Appeals reversed the judgment of the trial court and dismissed the suit.

Both parties have filed petitions for certiorari; the defendant in error complaining of the action of the Court of Appeals in dismissing the suit, and the plaintiff in error seeking to bring up for consideration certain matters pretermitted by the Court of Appeals. Both petitions were granted.

The defendant in error, Rodgers, was an industrial insurance agent in the employ of plaintiff in error, the Independent Life Insurance Company. He left the employ of that company. There was a controversy as to the state of the account between the agent, also a collector, and the company. The agent retained certain collections made by him on insurance premiums, claimed by him to be the sum due him from the company, less some interest. It may be assumed that the agent's claim in this particular was thereafter justified.

On September 4, 1930, the president of the company addressed a letter to the insurance commissioner of the state, in which he said:

"Certain different States, through other Commissioners, have called upon us, as upon other companies, to report to them any agent employed by us turning up with deficiencies or shortages. We have been trying to get our men to do that, because we think it is beneficial to the business, or will be in the future."

The letter then contains a report as to an alleged shortage of a former agent other than Rodgers. Continuing, the writer says:

"C. E. Rodgers of Chattanooga took things into his own hands and collected his money before a final had been made against him and before we had time to check up and see how much he is short, but it will be slight, but we understand that he is going to work for the Federal Union of Cincinnati, Ohio, and is going to work in Chattanooga."

Reference is then made to another former agent, and the letter concludes:

"We do not make any such demand and do not want to be any trouble to your office, but we procured license for these men and paid for them, and we think probably it will be plenty of time for them to go to work for some other company when they have a clean bill of health from us." Signed by the president of the company.

Prior to the receipt of this letter, the insurance commissioner had, upon application of the Federal Union Company of Cincinnati, issued a license to Rodgers to write insurance for that company expiring December 31, 1930. Upon receipt of the letter aforesaid, the commissioner notified plaintiff in error of its contents, and asked for his explanation. The letter was understood by the commissioner as a charge against Rodgers going to his eligibility to work for the Federal Union Company. We interpret the letter likewise.

This case is pitched upon the theory that the contents of the letter were libelous per se. The Court of Appeals, while finding some error in the charge of the trial judge, dismissed the suit on the ground that the communication upon which the suit was based was absolutely privileged — that it was made in a judicial or quasi judicial proceeding. Although this conclusion of the Court of Appeals is assailed with much vigor and learning, upon full consideration it appears to us that the court was right.

The immunity of parties and witnesses from libel and slander suits on account of pertinent expressions uttered by them in judicial proceedings is well established in Tennessee. In Lea v. White, 36 Tenn. (4 Sneed) 111, after a discussion of the rule of conditional privilege, where there is no liability unless there is malice, the court said:

"But 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.' 1 Stark. on Slander, 403, 404; Cooke on Defamation, 48, top p. In this class are embraced judicial proceedings. `The proceedings connected with the judicature of the country are so important to the public good, that the law holds that nothing which may be therein 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 occasion, can be a libel.' Ib., 49. 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 constitutionally privileged communications, which we have seen are protected, unless there is malice in fact."

This case was followed by Cooley v. Galyon, 109 Tenn. 1, 70 S. W. 607, 60 L. R. A. 139, 97 Am. St. Rep. 823; Crockett v. McLanahan, 109 Tenn. 517, 72 S. W. 950, 61 L. R. A. 914, and Roberts v. Parker, 156 Tenn. 82, 299 S. W. 779, and Wells v. Carter, 164 Tenn. 400, 50 S.W.(2d) 228. The rule thus announced was recognized in Shadden v. McElwee, 86 Tenn. 146, 5 S. W. 602, 6 Am. St. Rep. 821, but a witness was there held to be without this protection as to his voluntary statements not pertinent to the inquiry before the court.

In Ruohs v. Backer, 53 Tenn. (6 Heisk.) 395, 19 Am. Rep. 598, it was held that statements in a pleading concerning one not a party to the suit were not absolutely privileged but were conditionally privileged. This conclusion, however, was expressly repudiated in Crockett v. McLanahan, supra.

In McKee v. Hughes, 133 Tenn. 455, 181 S. W. 930, L. R. A. 1916D, 391, Ann. Cas. 1918A, 459, the court discussed the contents of a petition of citizens addressed to the mayor and aldermen of the town of Spring Hill requesting that a store conducted in that town be declared a public nuisance, and that the license of the storekeeper be revoked and his place of business closed. It was held that the contents of the petition were conditionally privileged rather than absolutely privileged. Obviously, this petition could not be regarded as the institution of judicial proceedings, since the court expressly found that the mayor and aldermen were without power or jurisdiction to revoke the license of the storekeeper. As a matter of fact, however, the court found that there was no malice apparent, and affirmed the action of the trial judge in dismissing the suit.

At this point we may lay to one side many of the authorities relied on by counsel for the insurance agent, with the observation that they deal with statements made in the course of proceedings before legislative bodies, administrative officers, and executives; that, while said functionaries were clothed with judicial discretion in such proceedings, they were not acting as courts.

Without any detailed discussion of the statutes that endow the insurance commissioner with authority judicial in its nature, it is sufficient to refer to chapter 46 of the Public Acts of 1925, entitled "An Act to regulate the issuance and revocation of license to persons to act as Insurance Agents and Solicitors in the State of Tennessee."

"Section 1. Be it enacted by the General Assembly of the State of Tennessee, That the Commissioner of Insurance and Banking of the State of Tennessee is hereby given the power, upon application to him by any insurance company, association, fraternal benefit society or other insurance organization, or agent or general agent, to license any person or persons to transact the business of an insurance agent or agents or solicitor or solicitors; but no rules or regulations prescribed by the Commissioner shall make the licensing of applicants dependent in any manner on the recommendation of other Insurance Agents, or Associations of Insurance Agents.

"That before issuing such license, the said Commissioner shall have the power to require a specific reasonable information with respect to the moral character and fitness of all such persons, and that he may prescribe reasonable rules and regulations for the acquisition of such information as he may reasonably deem necessary in determining the fitness of all persons desiring to become such agents or solicitors. That every insurance company, including fraternal benefit...