Parsons v. Age-Herald Pub. Co.

• Citation: 181 Ala. 439,61 So. 345
• Parties: PARSONS v. AGE-HERALD PUB. CO.
• Decision Date: 06 February 1913
• Court: Supreme Court of Alabama

61 So. 345

181 Ala. 439

PARSONS v. AGE-HERALD PUB. CO.

Supreme Court of Alabama

February 6, 1913

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by M.W. Parsons against the Age-Herald Publishing Company for damages for libel and slander. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The charges referred to are as follows: (1) Affirmative charge not to find for defendant on special plea 4. (2) Same as special plea 5. (3) Same as special plea 6. (4) "If you believe the evidence, you cannot find for defendant on its special plea 10."

Gaston & Pettus, of Birmingham, for appellant.

Nathan L. Miller, of Birmingham, for appellee.

SOMERVILLE J.

The plaintiff, a constable of Jefferson county, sued the defendant, as publisher of a daily newspaper published in Birmingham, for the publication in its columns of certain alleged libels. Defense was made under pleas of the general issue and privilege, and there was verdict and judgment for the defendant.

Two questions of controlling importance are presented by the pleadings and evidence. The first and second counts of the complaint charge the false and malicious publication concerning plaintiff of the following matter: "In connection with official acts we feel called upon to give an expression of censure to one of our constables, M.W. Parsons whom evidence shows has perverted the uses of his office, and made it a means of oppression, having at one and the same time acted as a constable, a clerk of the court and attorney for each of which three services he received compensation. We do not feel that the evidence warranted an impeachment in this case, and we can therefore only express our deep condemnation of such acts."

The third count is based upon the following matter: " 'Many persons will approve that portion of the grand jury report which deals with reprehensible acts of constables and justices of the peace,' said a citizen who is familiar with some of the doings of this class of officers. 'I know of some very outrageous acts by some of these officers and in some instances they should have been sued on their bonds. One young woman who had been humiliated and dragged into an inferior court should have sued the constable for his acts. And the more one of these razorback limbs of the law added insult to injury in an effort to cover the constable's bad break, I think there will be found a way to impeach this officer of the law who preys upon the poor and unfortunate. Any constable so discredited as to be declared by a grand jury so reprehensible as to barely escape impeachment should resign.' "

The fourth plea, interposed to the complaint as a whole, and to each count separately, avers that the matter complained of was a part of the official report of the grand jury for Jefferson county, made in writing to the criminal court of said county and reported thereto in open court by the foreman of said jury; that said matter was part of a fair, accurate and impartial report of the proceedings in said court on November 17, 1909; that said publication was not made by defendant for the purpose of injuring plaintiff, but was made in pursuance of its duty to give publicity to said official document, of which the public had a right to be informed; and that said publication was made bona fide, without malice, and in the belief that said matter was true.

The tenth plea, interposed to the third count only, avers that the publication complained of was a fair and reasonable comment by a reputable citizen of Birmingham concerning the conduct of public officers and public offices; that as publisher of a newspaper it was defendant's duty to publish such comments made by itself or by reputable citizens; that this publication was made without malice or any intention to injure plaintiff, and in the belief that the matters alleged were true; and that they were published in the interest of the public and the proper administration of public affairs.

Demurrers impeaching the sufficiency of these pleas were overruled by the court.

It is a principle everywhere recognized that a fair and accurate report of "judicial proceedings," published in good faith for the purpose of informing the public, and not for the purpose of injuring the persons concerned, is privileged, and the publisher immune against liability, though the report contain matter that is false, defamatory, and injurious. Gazette Printing Co. v. Shallow, 41 Can.Sup.Ct. 339, 15 Ann.Cas. 610, citing the English authorities; Odgers on Libel & Slander (4th Eng.Ed.) 291; Brown v. Globe Printing Co., 213 Mo. 611, 112 S.W. 462, 127 Am.St.Rep. 627.

It is also settled in this state, as in most jurisdictions, that newspapers have no peculiar privileges of publication, and are subject to liability for libel just as ordinary persons are. Wofford v. Meeks, 129 Ala. 349, 356, 30 So. 625, 55 L.R.A. 214, 87 Am.St.Rep. 66; State v. Shepherd, 177 Mo. 205, 76 S.W. 79, 99 Am.St.Rep. 624; Negley v. Farrow, 60 Md. 158, 45 Am.Rep. 715; Williams Print. Co. v. Saunders (Va.) 73 S.E. 472.

So, newspapers, like persons, may discuss and criticise the conduct and motives of public officers without liability, if their comments are fair and reasonable. But for false aspersions upon their character newspapers and individual persons are equally liable, and the publisher of a libel upon a public official is without privilege, and can justify his publication only by proving that it is true. Wofford v. Meeks, 129 Ala. 349, 356, 30 So. 625, 55 L.R.A. 214, 87 Am.St.Rep. 66; McAllister v. Detroit Free Press Pub. Co., 76 Mich. 338, 43 N.W. 431, 15 Am.St.Rep. 318, and note, 349; Triggs v. Sun Printing, etc., Ass'n, 179 N.Y. 144, 71 N.E. 739, 66 L.R.A. 612, 103 Am.St.Rep. 841, 1 Ann.Cas. 326.

The sufficiency of the quoted pleas must be tested in the light of these settled principles. If the fourth plea presents a good defense to the first and second counts, it must be upon the assumption that the official report of a grand jury, made to the court of which it forms a part, in open session, is such a "judicial proceeding" as comes within the rule of privilege with respect to such proceedings; or else that the public act of a public body, such as a grand jury, with respect to matters of public concern, is itself within the policy of the privilege, though in excess of the functions or duties with which it is clothed by law. And if the tenth plea presents a good defense to the third count, it must be upon the assumption that the statements therein charged are "fair and reasonable comments" upon the conduct of a public officer with respect to matters which concern the public, and not libelous statements of fact. These two propositions are vital to the whole case, and we have given them very deliberate consideration.

Though there has been some dissension of opinion, it seems to have been the common-law rule in England that the privilege attached to the report and publication of judicial proceedings extends to ex parte proceedings. Gazette Printing Co. v. Shallow, supra; Odgers on Libel & Slander, p. 292. Nevertheless, such proceedings must have been taken or held "in open court," by which is meant any place where the court sits or exercises its jurisdiction, and from which the public are not excluded. Kimber v. Press Association (1893) 1 Q.B. 65; Metcalf v. Times Pub. Co., 20 R.I. 674, 40 A. 864, 78 Am.St.Rep. 900.

These principles prevail very generally in the United States, and the great weight of authority sustains the view that the publication of pleadings or other preliminary papers to which the attention of no judicial officer has been called and upon which no judicial action has been invoked is not within the privilege accorded to the publication of judicial proceedings in the absence of any statute modifying the rules of the common law. Ilsley v. Sentinel Co., 133 Wis. 20, 133 N.W. 425, 126 Am.St.Rep. 928. Such matters must have come up for public hearing or action in open court. Park v. Detroit Free Press Co., 72 Mich. 560, 40 N.W. 731, 1 L.R.A. 599, 16 Am.St.Rep. 544; Nixon v. Dispatch Print. Co., 101 Minn. 309, 112 N.W. 258, 12 L.R.A. (N.S.) 188, 11 Ann.Cas. 161; Cowley v. Pulsifer, 137 Mass. 392, 50 Am.Rep. 318.

A grand jury is said to be a constituent part of the court, though it is also a distinct and partly independent body. Finley v. State, 61 Ala. 204; Fields v. State, 121 Ala. 16, 17, 25 So. 726. And its functions, though always proceeding ex parte, are obviously of a judicial nature.

It is the duty of every grand jury to investigate any alleged incompetency or misconduct of any public officer in the county; and, if they find that any county officer ought to be removed from office for any impeachable offense named in section 7099 of the Code, they shall so report to the court, "setting forth the facts, which report shall be entered on the minutes of the court." Code 1907, § 7124; State v. Savage, 89 Ala. 1, 7 So. 7, 183, 7 L.R.A. 426.

They are neither required nor authorized by any statute to report the result of such investigations when they fail to find any impeachable fault or offense; and when they report and criticise any misconduct, real or fancied, of lesser grade, it cannot be for the purpose of invoking any judicial action, and is in fact no part of any judicial proceeding, actual or potential. Of course, these observations do not apply to the duties specially enjoined upon the grand jury by law to examine and report upon the several public matters named in sections 7287-7292 of the Code, with which we are not here concerned.

Our conclusion is that that part of the grand jury's report dealing with the official conduct of the plaintiff was no part of any "judicial proceeding" within the rule of...