Johnson v. (*Absent

• Decision Date: 27 April 1878
• Citation: 13 W.Va. 71
• Parties: Johnson v. Brown et al.
• Court: West Virginia Supreme Court

13 W.Va. 71

Johnson

v.Brown et al.

Supreme Court of Appeals of West Virginia.

Decided April 27, 1878.

1. The inducement in a declaration in libel suit is, that the plain-

tiff had been the general superintendent of a certain corpora-. tion. The libelous writing was alleged to be as follows: "The plaintiff was, through his own and his brothers' influence, placed and retained in the general management of said corporation during the years 1871, 1872 and 1873 for their own private and individual gain, and not the corporation's; that especially during the year 1873 the plaintiff in the libel suit did use, and employ, the goods, money, means and credit of the said corporation for his own use, and his brothers' private use, business and benefit; that he took the goods and money of the said corporation to pay his own employes; that he borrowed money, and used it in his own business, and gave said corporation's notes therefor; that he and his wife purchased goods, wares and merchandize of divers persons and at various times during the years 1871 and 1872, and especially during the year 1873, for their own and friends' use, and had them charged to the corporation." The allegations being set forth in the declaration, the innuendo was: 'Thereby meaning that the plaintiff had embezzled the goods and money of said corporation." The allegations without any innuendo would not be libelous in themselves; and the innuendo improperly extended the meaning of these words. And if the publication of these words had been all, that was complained of in the declaration, a general demurrer to the declaration ought to have been sustained.

2. But if such a declaration alleged the publication of a writing in

these words: "The said plaintiff in the slander suit, and *Was counsel in the cause below. others, have been, and are, conspiring to defraud the other stockholders in said corporation, to divert the means, money and credit of the corporation to their own individual use and ends, and against the interest and welfare of the other stockholders in the said corporation;" and the innuendo is, ''thereby meaning, that the plaintiff, while acting as the general superintendent and agent of said corporation, defrauded the said corporation, and conspired with other persons to defraud and cheat said corporation," this language without any innuendo was libelous; and the innuendo did not extend the meaning of the words. And as thfs allegation is in its nature distinct ami divisible from the others, the defendant could not properly demur to the whole declaration; and such a demurrer ought to be overruled.

The libelous matter, stated above, being contained in a bill in chancery, tiled under the' fifty-seventh section of chapter fiftythree of the Code of West Virginia, and the bill having alleged that the party, who was plaintiff in the libel suit, had been elected general superintendent by himself and brothers, who held a majority interest in the stock of said corporation; and that they still voted such stock; and asking a decree of the court dissolving said corporation, the said allegations were pertinent to the case, sought to be made by the bill, and the relief prayed for; and no libel suit could be instituted based on them, they being absolutely privileged publications.

Libelous matters, published only in the due course of legal procedures, cannot be the basis of a libel suit, provided the court, in which they were published, had jurisdiction of the cause, and they were pertinent to the suit, even if they be libelous reflections on the character of persons, not parties to the suit, if the suit was not resorted to merely for the purpose of conveying the scandal, and as a cover for the malice of the party, and not in good faith for the assertion of a right, or redress of a wrong. If the suit was resorted to for such purpose, and with such wrongful motives, the court does not decide, whether such pertinent allegation would, or would not. be regarded as an absolutely privileged publication, exempting the party from liability to a libel suit, this question not arising in this case.

If a declaration on its face shows, that the libelous matters complained of were published in the due course of legal proceedures, it will be held fatally defective on general demurrer, unless it further shows, that the libelous matters complained of are not absolutely privileged publications under the general rule, that all such publications are so privileged, by alleging facts, that bring it within some exceptions to this general rule, such as, that the Gpurt had no jurisdiction, or that the libelous matters alleged were not pertinent to such judicial procedure.

If the declaration allege facts showing, that the libelous allegations come within some exception to the general rule, a plea denying, that they come within such exception, named in the declaration, by alleging, that the court had jurisdiction, or that the libelous allegations were pertinent to the cause, as the case may be, is a good'plea in bar, though it does not deny express malice. \..

7. A plea, that the libelous matters complained of were only pub-

lished in the pleadings in a cause, instituted according to the regular course of judicial procedure, and. that the defendant had reasonable cause for believing, and did actually believe, that they were pertinent to the cause, is a good plea in bar; and such plea need not deny express malice.

8. But if there is no allegation in the plea, the that libelous allega-

tions were pertinent, or that the defendants had reasonable cause for believing, and did actually believe, them to be pertinent to the cause, it must then deny malice in the publication, or the plea will not be a good-plea in bar.

9. All the above defenses to an action of libel may be proved

under the general issue. And upon the trial on such issue if it appear, that the libelous allegations were published in the due course of legal procedure, though it be proved, that the court had no jurisdiction, or that the allegations were not pertinent to the legal procedure, still the law does not presume malice on the part of the defendant; but the plaintiff must prove express malice, to entitle him to recover. The simple fact, that the libelous matters were published in the due course of legal procedure, though the court had no jurisdiction, or the libelous matters were impertinent, rebuts the prima facie presumption of malice, and makes it incumbent on the plaintiff to prove express malice, the case being what is called a conditionally privileged publication.

10. The question, whether in such a case the libelous matters, if they are contained in the pleadings in a cause, are, or are not, pertinent to the cause, is a question of law, which ought to be decided by the court, and not a question of fact to be submitted to the jury.

11. A plea in bar, that the libelous matter ivas published only in a pleading in the regular course of judicial procedure, and was pertinent thereto, should conclude with a verification by the record, as it proposes for decision a question of law, and not one of fact.

Supersedeas to a judgment of the circuit court of the county of Tyler, rendered on the 14th day of November, 1876, in a certain action, in said court then pending, in which Isaac H. Johnson was plaintiff, and Nelson H. Brown and others were defendants, allowed on the petition of said defendants.

Hon, flames Monroe Jackson, judge of the fifth judicial circuit, rendered the judgment complained of.

Green, President, furnishes the following statement of the case:

This is an action of libel, brought in the circuit court of Tyler county, by I. H. Johnson against Nelson H. Brown, Jacob Hugus, Benjamin S. Morgan, Daniel C. Sweeney, Samuel E. Steele, Thomas D. Gorrell, Wilson Long and George W. Williamson. It was based on certain alleged libelous statements, contained in a certain bill in chancery, filed by the defendants in the circuit court of Tyler county, against the People's Manufacturing Company, at February rules, 1875. The declaration was filed at October rules, 1875, and is in these words:

"West Virginia, Tyler County, to-wit:

"In the Circuit Court thereof. "Isaac H. Johnson complains of Nelson H. Brown, Jacob Hugus, Benjamin S. Morgan, Daniel C. Sweeney, Samuel E. Steele, Thomas D. Gorrell, Wilson Long and George M. Williamson, being summoned, &c, of a plea of trespass on the case, for that whereas the said plaintiff is a good, true, honest, just and faithful citizen of West Virginia, and as such hath always behaved and conducted himself, and until the committing of the several grievances by said defendants, as hereinafter mentioned, was always reputed, esteemed and accepted by and amongst all his neighbors and other good and worthy citizens of this State, to whom he was in anywise known, to be a person of good name, fame and credit, towit, at the county aforesaid; and whereas, also, the said plaintiff hath not ever been guilty, or until the time of the committing of the said several grievances by the said defendants., as hereinafter mentioned, been suspected to have been guilty, of fraud, of conspiring to defraud any one, of obtaining money, goods or credit under false pretense, or of embezzlement, or of any other such crime, by means of which said premises the said plaintiff, before the committing of the said several grievances by the said defendants, as hereinafter mentioned, had deservedly obtained the good opinion and credit of all his neighbors and other good and worthy citizens of this State, to whom he was in anywise known, to-wit, at the county aforesaid; and, whereas, before the committing of the said several grievances by the said defendants, hereinafter mentioned, this plaintiff, with his brothers, Daniel D. Johnson and Samuel Johnson, partners as Johnson Brothers, were the owners of certain stock in the People's Manufacturing Company, a corporation created by the laws of West Virginia, for the purpose,...