Kenney v. Gurley

Decision Date04 January 1923
Docket Number6 Div. 504.
Citation208 Ala. 623,95 So. 34
PartiesKENNEY ET AL. v. GURLEY.
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Action by Velma Gurley, by her next friend, against John A. Kenney and others. Judgment for plaintiff, and defendants Kenney and Landers appeal. Reversed and remanded.

This is an action of libel. The suit was originally brought by the next friend of Velma Gurley, a minor the subject of the alleged libel against Tuskegee Normal and Industrial Institute, Robert R. Moton (its principal), Dr. John A Kenney, and E. S. Landers, who was dean of women of the school. A verdict and judgment for $5,000 was awarded plaintiff against Dr. Kenney and Dean Landers, the industrial institute being eliminated as a party defendant in consequence of rulings on the complaint, and principal Moton being entirely exonerated, after evidence taken, by a special instruction given the jury at the instance of the defendant. The substance of the alleged libelous matters was written expressions asserting that Velma Gurley had a venereal disease, and that from indications stated she had not been "living right."

The counts of the amended complaint submitted to the jury averred that the publication of the alleged libelous matter was made at Bessemer, Ala., a place within the jurisdiction of the court trying the cause. In these counts it is also averred that the publication of the alleged libelous matter was falsely and maliciously done. The libelous matter declared on is contained in two letters, which are reproduced below. In the evidence-and that without dispute-appears a letter previous to those declared on from Velma Gurley to the defendant Dean Landers. Observing their chronological order, this letter together with those from which the alleged libelous matters declared on are taken, are as follows:

"Bessemer, Ala., Sept. 30, 1919.
"Dear Mrs. Landers: I arrived safe at home last night, and my mother met me. She was very glad to see her baby again. I am feeling very well this morning, and mother told me to write you and let you know how I am getting along. Mrs. Landers, if I get well in time to make my class will it be all right for me to come back to school, because I hate to be out of school this whole term, and I want to know if I may come back, because I don't think I will be sick very long. I am hoping for a favorable reply.
"Yours truly,

Velma Mae Gurley."

"The Tuskegee Normal and Industrial Institute, John A. Kenney, Medical Director.

"Tuskegee Institute, Ala., Oct. 6, 1919.

"To the Parents of Velma Gurley: At the request of the dean of the women's department, I am advising you that Velma was kept in our hospital ward as a result of venereal infection and because of the fact she was sent home. If it has not already been done, it is advisable that she is put under a good physician.

"Very truly,
"John A. Kenney, Medical Director."
"The Tuskegee Normal and Industrial Institute, Dean's Office.
"Tuskegee Institute, Ala., Oct. 14, 1919.
"Dear Madam: I regret to have to inform you that it will be impossible for your daughter, Velma Gurley, to return to the school. The inclosed note from our physician explains itself; it seems to indicate that Velma has not been living right, and I feel that she can best be helped by being frank in the matter. She is such a young girl that it is a great pity that this is so and I hope you will have the best Dr. you can get to treat her for this trouble. Being a mother myself I can sympathize with you. With deep regret, I am,
"Yours truly,

E. S. Landers, Dean."

Besides general traverses, the defendants Kenney and Landers asserted the defense that the derogatory matters declared on were privileged. The circumstances inspiring and surrounding the authors of these letters, as well as their official relation to the Industrial Institute, and, therethrough, to Velma Gurley and to more than 600 other female students in the institution, are averred (for instance, in plea 5, to which, among others, demurrer was overruled) as follows:

"That the plaintiff ought not to recover thereunder for that whatever letter or letters were written and published by defendants concerning the plaintiff were privileged, in that plaintiff had some months prior thereto been a student in the Tuskegee Normal and Industrial Institute, one of the defendants, and at or near the time complained of was an applicant for readmission as a student in said institution, the said institution being one of the state schools in this state, located at Tuskegee, Ala., and she was at or near the time complained of a patient in the John A. Andrews Memorial Hospital, which is located on the premises of said institution, and is used, among other things, for the treatment of the diseases of the students of said institute; that the defendant Robert R. Moton is and was at the time complained of the principal of said institute; that the defendant John A. Kenney was at said time the physician of said institute, and as such his business was to look after the sick of said school, and he had direct supervision of the said hospital, in which the teachers and students of said institute, as well as the private patients of said John A. Kenney, were treated; that the said E. S. Landers was the head matron or dean of the women's department of said institute, and as such had charge of the female students of said institution, looking after their conduct and health; that any communication made or letter written and published as complained of in this case concerning the plaintiff was made or published in good faith, and without malice, and was upon a subject-matter in which the defendants felt and had an interest, or in reference to which each had a duty, social or moral, and said communication or communications were made or letters written and published to a person or persons who felt and had a corresponding interest or duty, and not otherwise; in fact, said letter or letters were written to or published to plaintiff's parent or parents by the defendant in their official capacities or positions as aforesaid."

Resulting from the facts and circumstances recited, legal questions arose on the trial, and are reserved for review here, that are sufficiently set forth in the subjoined opinion.

C. W. Hare, of Tuskegee, and Huey & Welch, of Bessemer, for appellants.

Beddow & Oberdorfer, of Birmingham, for appellee.

McCLELLAN J.

The complaint, for libel uttered through letters, disclosed by clear allegations that jurisdiction of the cause of action declared on was in the circuit court of Jefferson county, serving the Bessemer division. Like considerations justified the trial court in sustaining demurrers to defendants' pleas in abatement to the jurisdiction. Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193, 196, where it was said, in expression of general rule, that libelous matter uttered through the mails is actionable either at the place of posting or at the place of receipt by the addressee. In that case newspaper publications were held not to be within the stated general rule, so for reasons adequately given in the opinion. See, also, 17 R. C. L. § 120, p. 370.

It is insisted for appellants (defendants) that, in the circumstances outlined in plea 5 (quoted in the statement ante), among others, the trial court erred in several of its rulings because of the mistaken notion that the written matter declared on and shown in the evidence was not within the category of matter absolutely privileged. It will suffice to say that the standard definitions of matter absolutely privileged and of matter qualifiedly, conditionally privileged, given in Lawson v. Hicks, 38 Ala. 279, 285, et seq. (81 Am. Dec. 49), cast the subject of this action for libel in the category of matter qualifiedly or conditionally privileged. Hence no error affects the judgment on account of the view, sanctioned by the trial court, that the matter was but conditionally privileged.

Some of the defendants' pleas of privilege, to which demurrers were sustained, omitted to deny that malice characterized the asserted exercise by defendants of conditional privilege through the publication of the matter declared on. Pleas of conditional privilege are of the category of pleas of confession and avoidance, and are required to negative the presence of malice in the exercise of conditional privilege asserted in bar of a recovery, particularly if, as here, the complaint avers that the matter declared on was maliciously published. Ferdon v. Dickens, 161 Ala. 181, 194, 49 So. 888; 25 Cyc. pp. 458, 459, subhead B. While it is essential that such a special plea should negative malice in the exercise of conditional privilege characterizing the utterance declared on (this in order to give...

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  • Johnson Pub. Co. v. Davis
    • United States
    • Alabama Supreme Court
    • August 18, 1960
    ...extent of publication, including the recklessness of the publication and prior information regarding its falsity. Kenney v. Gurley, 208 Ala. 623, 95 So. 34, 26 A.L.R. 813. IV. It is insisted that the amount of the verdict, which was $67,500, is excessive. In giving this matter our serious a......
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    ...Mayor (both of whom were defendants in Oaks' first lawsuit) was insufficient publication as a matter of law. See e. g., Kenney v. Gurley, 208 Ala. 623, 95 So. 34 (1923); McDowell v. Texas, 465 F.2d 1342, 1344-45 (5th Cir. 1971); Makofsy v. Cunningham, 526 F.2d 1223, 1236 n.4 (5th Cir. ...
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    ...occasion on which it was made, is a question of law to be decided by the court. O'Barr v. Feist, supra, Kenney v. Gurley, 208 Ala. 623, 627, 95 So. 34, 38 (1923); Interstate Electric Co. v. Daniel, 227 Ala. 609, 613, 151 So. 463, 466 Walker v. Majors, 496 So.2d 726, 730 (Ala. 1986). This pr......
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