Penick v. Ratcliffe

• Decision Date: 22 December 1927
• Citation: 149 Va. 618
• Parties: J. W. PENICK AND OTHERS v. JOHN L. RATCLIFFE.
• Court: Virginia Supreme Court

Page 618

149 Va. 618

J. W. PENICK AND OTHERS v. JOHN L. RATCLIFFE.

Supreme Court of Virginia, Richmond.

December 22, 1927.

1. ELECTIONS — Election Contest — Whether Primary Election Contest is an Action at Law or Suit in Equity — Technicalities. — A proceeding to contest a primary election under Code of 1919, section 267, is neither an action at law nor a suit in equity, but is based upon the statute. In sections 247 and 267 of the Code of 1919 it is declared that the rules of law and equity govern proceedings to contest elections, and that the contest shall be heard upon its merits. It was the plain purpose of the legislature that such matters should be dealt with in no technical way.

2. LIBEL AND SLANDER — Privilege — Judicial Proceedings — Election Contest — Relevancy and Pertinency — Questions for Court — Case at Bar. — The instant case was an action for libel. The alleged libelous publication was a petition in an election contest. If the petition and the proceedings had thereunder were court proceedings, and if the allegations charged to be libelous were relevant or pertinent, then the occasion was one of absolute privilege, and there could be no recovery.

Held: That since there was no dispute as to the circumstances under which the offending publication was made, the questions of whether the proceedings were court proceedings and whether the objectionable charges were relevant or pertinent, were for the court.

3. LIBEL AND SLANDER — Privilege — What Constitutes a Judicial Proceeding. — A "judicial proceeding" within the rule of absolute privilege is not restricted to trials of civil actions or indictments, but it includes every proceeding before a competent court or magistrate in the due course of law or the administration of justice which is to result in any determination or action of such court or officer. The rule is broad and comprehensive, including within its scope all proceedings of a judicial nature whether pending in some court of justice, or before a tribunal or officer clothed with judicial or quasi judicial powers.

4. LIBEL AND SLANDER — Privilege — What Constitutes a Judicial Proceeding — Contest of Primary Election under Section 247 — Continuance. — Proceedings to contest a primary election under section 247 of the Code of 1919, are judicial proceedings and absolutely privileged. The nature of the proceeding is fixed by statute, and is not changed by the failure of the court to act at its next term or by any number of continuances. When filed in time the character of a petition to contest a primary election is in no wise changed by the failure of the court to act regardless of the reasons for such failure.

5. LIBEL AND SLANDER — Absolute Privilege — Courts of Limited Jurisdiction. — Where in an action for libel it is claimed that the publication in question was privileged because made in judicial proceedings, the fact that the court was one of limited jurisdiction was immaterial where all that was done was done under express authority of the statute and done within the limits imposed.

6. JURISDICTION — Presumption in Favor of Jurisdiction — Inferior or Special Tribunals. — Where facts essential to give jurisdiction to an inferior to special tribunal of limited authority are shown by the record, the same presumption prevails in favor of its jurisdiction as prevails in favor of the jurisdiction of superior courts of general jurisdiction.

7. LIBEL AND SLANDER — False and Malicious Statements — Absolute Privilege — Judicial Proceedings — English and American Rules. — In England publications made in judicial proceedings are absolutely privileged, even though knowingly false and published with express malice. But in America, in order that the defamatory words, published by parties, counsel, or witnesses in the due course of a judicial procedure, may be absolutely privileged, they must be connected with, or relevant or material to, the cause in hand, or subject of inquiry. If they be so published and are so relevant or pertinent to the subject of inquiry, no action will lie therefor, however false or malicious they may in fact be.

8. LIBEL AND SLANDER — Absolute Privilege — Judicial Proceedings — Relevancy. — In considering whether allegations in a pleading are pertinent or relevant so as to be privileged within the American rule, courts will give a liberal interpretation of pleadings in favor of relevancy and pertinency.

9. LIBEL AND SLANDER — Petition in Primary Election Contest — Absolute Privilege — Relevancy and Pertinency — Case at Bar. — In the instant case, an action for libel, the alleged libelous publication was a petition in a primary election contest. In the petition the petitioners, defendants, charged that plaintiff was a school trustee and also a judge of election, and that he attempted to bribe a voter by offer to give him a contract for the transportation of school children.

Held: That for the purpose of determining whether the allegations were relevant the charges must be assumed to be true, and that being so, the charges were pertinent and relevant to the proceeding, and absolutely privileged.

10. LIBEL AND SLANDER — Privileged Communications — Absolute and Qualified Privileges. — Privileged communications are of two kinds, those absolutely privileged and those qualifiedly privileged. An absolute privileged communication is one for which an action will not lie, even though the words are published maliciously and with knowledge of their falsity, whereas a qualified privileged communication is one which is prima facie privileged only, and in which the privilege may be lost by proof of malice in the publication of the libel or slander.

11. DAMAGES — Joint-Tort Feasors — Case at Bar. — In an action against several for a single wrong the verdict should be joint, therefore an instruction in an action for libel against several defendants that the jury might assess damages against the defendants severally and in verying amounts was improper.

12. APPEAL AND ERROR — Final Judgment by Appellate Court — No Dispute as to Facts. — Ordinarily when good pleas are rejected and good instructions refused, the appellate court after pointing out the errors will remand the case for a new trial to be had in accordance with the views expressed. But when there is no dispute as to the facts and the issues are in law only, and when they have been fully argued and maturely considered, such procedure is wholly unnecessary, and the appellate court will render final judgment.

Error to a judgment of the Circuit Court of Henrico county, in an action of trespass on the case. Judgment for plaintiff. Defendants assign error.

The opinion states the case.

Leith S. Bremner, Wenderburg & Haddon, and L. M. Wickham, for the plaintiffs in error.

R. E. Scott and W. W. Beverly, for the defendant in error.

HOLT, J., delivered the opinion of the court.

On August 7, 1923, there was held in Brookland District, Henrico county, a primary election to nominate a Democratic candidate for supervisor of that district. The candidates were W. Conway Saunders, and H. M. Fleet. This election resulted in a tie vote. Lots were cast, and Saunders was declared the nominee.

On August 20th following a petition was filed under the statute in the circuit court of that county by sixteen qualified voters charging an undue election and a false return, and prayed that an inspection of the ballots be allowed; that a recount be ordered; that Fleet be declared the nominee, and for general relief.

That the setting and context of the offending charges may appear, the material averments of this petition for a recount are set out in a foot note.^*

To this petition Saunders filed an answer and an amended answer. At the October term of court, and when it was then in session, counsel for litigants met in an attempt to agree upon conditions under which a recount might be had. No conclusion was reached, and upon the failure of their conference plaintiffs' counsel said to the judge then upon the bench that he had nothing to bring before him, and so this proceeding in which the issue had been made up, and which was then upon the docket, was continued in due course and as a matter of course. Nothing further was done until January 11, 1924, when this order was entered:

"January 11, 1924.

"EDWARD J. TIMBERLAKE, et ux., Plaintiffs

vs.

W. C. SAUNDERS, Defendant.

"Contested Election.

"This day came the defendant by his attorney and the plaintiffs being solemnly called, failed to appear and prosecute their suit. On the defendant's motion it is ordered that this proceeding be dismissed, at the cost of the said plaintiffs."

The instant action was instituted in December, 1923. The declaration contains two counts. Material averments of the first are that the defendants:

"* * * did compose and publish of and concerning the said plaintiff certain false, scandalous, malicious, defamatory and libelous matter following of and concerning the said plaintiff:

"`One John L. Ratcliffe (meaning the plaintiff), a judge of election at Lakeside precinct, and a school trustee in Brookland district, Henrico county, an active worker for Saunders (meaning one W. C. Saunders, a candidate for the Democratic nomination as supervisor from Brookland district of the board of supervisors of Henrico county in the Democratic primary held August 7, 1923), made

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Bradshaw, who has a contract for hauling school children in the said district, a proposition to renew his contract without competition if he would vote for the said Saunders (meaning said W. C. Saunders and meaning and thereby charging that the plaintiff would use his said office as school trustee in said Brookland District dishonestly and corruptly).'"

And further:

"`Complainants (meaning all of the said defendants except J. W. Penick) charge that all of the judges of election except one at Hunton (meaning, amongst others, the plaintiff) were friends and supporters of Saunders, and they further...