Massey v. Jones

• Decision Date: 24 January 1944
• Docket Number: Record No. 2726.
• Citation: 182 Va. 200
• Court: Virginia Supreme Court
• Parties: S. T. MASSEY v. LUTHER C. JONES, ET AL.

Page 200

182 Va. 200

S. T. MASSEY v. LUTHER C. JONES, ET AL.

Record No. 2726.

Supreme Court of Virginia, Richmond.

January 24, 1944.

Present, Campbell, C.J., and Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

1. LIBEL AND SLANDER — Privileged Communications — Judicial Proceedings. — Absolute privilege protects an individual against liability for defamatory words spoken in the course of a judicial proceeding, when such words are pertinent and relevant to the subject of inquiry, or in response to the question, irrespective of malice or falsity.

2. LIBEL AND SLANDER — Statute of Insulting Words — Truth and Privilege as Defenses. — Both the truth and privilege are complete defenses in bar of any action for defamation, whether it be for common law slander or libel, or for insulting words, and the same rules of law with reference to the pleadings and proof of these defenses apply in an action under section 5781 of the Code of 1942 as in an action for common slander or libel.

3. LIBEL AND SLANDER — Privileged Communications — Test to Be Applied. — Whether an action for the recovery of damages be brought upon a charge of slander or upon a charge of libel, the test to be applied upon a plea of privilege is the relevancy and pertinency of the alleged offending language to the matter in inquiry.

4. LIBEL AND SLANDER — Statute of Insulting Words — Language Uttered in Judicial Proceeding — Case at Bar. — The instant case was an action for insulting words, under section 5781 of the Code of 1942, based upon language uttered in the course of a judicial proceeding. The language used was alleged to have meant that plaintiff had committed a crime in withdrawing from a corporation, without proper approval, certain funds, and that he was unfit and not a proper person to be entrusted with the affairs of others or a corporation. The testimony on which the instant action was based was given in a chancery suit in which the complainant therein, who was plaintiff in the instant case, denied any indebtedness to defendants and sought to control the future management of the corporation in question. In an effort to show how the indebtedness to defendants came about, one of them was introduced as a witness and it was during his examination that the offending language was uttered.

Held: That the testimony was clearly pertinent and relevant to show, if possible, the indebtedness claimed and also to show the alleged unfitness of plaintiff to manage the corporation, and was privileged.

Error to a judgment of the Law and Equity Court of the city of Richmond. Hon. Willis D. Miller, judge presiding.

The opinion states the case.

Alexander H. Sands and Edward A. Marks, Jr., for the plaintiff in error.

Norman L. Flippen and Archibald G. Robertson, for the defendants in error.

CAMPBELL, C.J., delivered the opinion of the court.

This is an action for insulting words, under the Acts of 1940, page 294, (Michie's Code 1942, section 5781), brought by S. T. Massey against Luther C. Jones and Franklin D. Robins, individually and as agents for Jones and Robins, incorporated. The action is based upon oral and written communications, alleged to be false and defamatory, and, under the said statute, to constitute insulting words within the purview thereof. The offending language is alleged to have been spoken during the trial of a chancery suit instituted by Massey against Robins, Jones and others, then pending before the Law and Equity Court of the City of Richmond, and later heard by this court upon an appeal.

By agreement of the parties litigant, the record in the aforesaid chancery suit, Robins Massey, 179 Va. 178, 18 S.E.(2d) 385, is treated as a part of the notice of motion.

In order to present the allegedly libelous matter in its proper setting, the material averments of the notice are set forth in a footnote to this opinion.^*

To the notice of motion the defendants demurred, on the ground: "That the said notice of motion shows on its face that all allegations relating to certain depositions and court records are privileged and therefore cannot be the basis for a cause of action."

The trial court was of opinion that the alleged slanderous or insulting words (which were a part of the testimony in the chancery cause of Robins Massey, supra, given in the regular trial thereof) were pertinent and relevant to the matters under inquiry in said chancery cause, and sustained the demurrer on the ground that the language complained of, having been spoken in the course of a judicial proceeding, was privileged.

This action of the court is assigned as error.

It is beyond dispute that the language upon which the action is based was uttered in the course of a judicial proceeding.

Since this court, in Lightner Osborn, 142 Va. 19, 127 S.E. 314, and Penick Ratcliffe, 149 Va. 618, 140 S.E. 664, has stated the applicable rule in cases similar to the case at bar, it is unnecessary to consider the English rule or the rule prevailing in other jurisdictions. By those cases we are committed to the doctrine that absolute privilege protects an individual against liability for defamatory words spoken in the course of a judicial proceeding, when such words are pertinent and relevant to the subject of inquiry, or in response to the question, irrespective of malice or falsity.

Counsel for plaintiff contends there is a sharp distinction apparent between a case in which the allegedly libelous matter goes to the essence of the case in the pleadings, as in the Penick case, supra, and a case in which such allegedly slanderous matter flows from the mouth of a witness under examination, as in the Lightner case, supra, and that, therefore, the trial court was in error when it held that the case at bar was ruled by the Penick case, supra.

In view of this contention, it becomes necessary to advert to the facts appearing in the two cases.

The Lightner Publishing Company employed Osborn as managing editor of "The Peanut Promoter." The written contract obligated Osborn not to enter thereafter into competition, directly or indirectly, with the corporation within a period of five years. Subsequent to signing the contract Osborn severed his connection with the corporation and started publication of a similar trade paper called the "Peanut Journal." Thereupon, the Lightner Publishing Corporation filed a bill in the Circuit Court of the city of Suffolk, praying that Osborn be enjoined from publishing the "Peanut Journal," That was the sole issue involved in the suit.

During the progress of the injunction suit, Lightner, testifying as a witness, repeated with emphasis a statement contained in a letter which he had written to one J. R. Fleming. "The letter accused Osborn of shortage in his accounts, of robbing the customers of Lightner Publishing Corporation, and stated that he had the knack of robbing a man and make him like it and that he would `sting' those who advertised in the `Peanut Journal.'" (Opinion).

The above language was the basis of Osborn's action at law to recover damages for insulting words, under section 5781 of the Code of 1919. The trial resulted in a verdict for Osborn.

It was the contention of Lightner, in this court, that the statements made in the trial of the injunction suit were absolutely privileged and relieved him of any liability. Judge West, delivering the opinion of the court, disposed of the contention in this language:

"Lightner's statements while testifying in the chancery suit were privileged only in so far as they were pertinent and material to the issue raised therein.

"In Newell on Slander and Libel (2d ed.) 424, paragraph 27, this is said: `And the same doctrine is generally held in the American courts, with the qualification as to parties, counsel and witnesses, that their statements made in the course of an action must be pertinent and material to the case. The qualification of the English rule is adopted in order that the protection given to individuals in the interest of an efficient administration of justice may not be abused as a cloak from beneath which to gratify private malice.' (Italics ours).

"The bill in the chancery suit was a pure bill for an injunction, the only issue being whether Osborn had violated his contract not to enter into competition, directly or indirectly, with Lightner Publishing Corporation within a period of five years, and not to accept employment with any competitor or competing publisher. The issue involved did not warrant the statement as to Osborn's `shortage' or that he, while in the defendant's employ, was `robbing our customers.' As said by Newell, at page 425: `The privilege is limited and that limit is: That a party or counsel shall not avail himself of his situation to gratify private malice by uttering slanderous expressions, either against a party, witness or third person, which have no relation to the cause or subject matter of the inquiry.'"

These are the facts in the Penick case, supra: "Penick and fifteen other qualified voters of Henrico county filed their petition in the circuit court, contesting the election of W. Conway Saunders as a supervisor for the county of Henrico. Ratcliffe was named one of the defendants. It was alleged in the petition that Ratcliffe, who acted as one of the judges of the election, was a school trustee, and, as such, was in a position of influence when contracts for the transportation of school children were to be placed. It was also alleged in the petition that while acting as judge of election, he attempted to bribe a voter by offering to give him a contract for this transportation, if he would vote for Saunders. Thereupon, Ratcliffe brought his action of slander against Penick and the other petitioners, to recover damages for the alleged libelous language in the petition. There was a trial by jury which resulted in a verdict for Ratcliffe. In this court it was contended by Penick that the language complained of was pertinent and relevant to the...