Powell v. Young
| Decision Date | 06 December 1928 |
| Citation | 145 S.E. 731 |
| Parties | POWELL. v. YOUNG. |
| Court | Virginia Supreme Court |
Error to Circuit Court of City of Norfolk.
On rehearing. Judgment reversed and remanded.
For original opinion, see 144 S. E. 624.
John N. Sebrell, of Norfolk, and J. Edward Moyler, of Franklin, for plaintiff in error.
Wm. G. Maupin, of Norfolk, for defendant in error.
The argument in this case is the result of a rehearing heretofore granted, and presents for the court's consideration the question of whether or not the learned trial court erred in refusing to give an instruction which affirmatively told the jury that the alleged libel as set out in the declaration was privileged, or was published of and concerning a privileged occasion.
This seems to be strictly a common-law action for libel, and the offending publication is only actionable, if at all, because of the inferences which the defendant in error undertook to draw from the language employed, by the rather free use of innuendoes. Innuendoes prove nothing; they are the conclusions of the pleader. If the jury should believe, under proper instructions, that the inferences drawn by Young from the publications complained of are justified, this court will not at this time undertake to say a verdict cannot be supported. It seems quite clear, from a careful reading of the publication, that no libel per se is charged therein.
This court is of the opinion that the occasion was clearly privileged, and placed upon the plaintiff in the trial court the positive obligation of showing actual malice on the part of Powell. We think also that he was entitled to have the jury so instructed in unequivocal language.
The burden thus placed upon the plaintiff in an action for libel can be overcome by any legitimate evidence sufficient to convince reasonable minds that malice existed at the time of the publication of the supposed libel, and was the motive prompting same.
When this has been done, that which was qualifiedly privileged ceases to enjoy that exemption, and the offender is answerable in damages under the principles of law, recognized in a long list of cases decided by the courts of last resort in this and other states.
The cases of Ramsay v. Harrison, 119 Va. 682, 89 S. E. 977; Vaughan v. Lytton, 126 Va. 671, 101 S. E. 865; Lightner v. Osborn, 142 Va. 19, 127 S. E. 314; and Aylor v. Gibbs, 143 Va. 644, 129 S. E. 696, are some of the recent decisions dealing with the general subject, and we think are controlling of the...
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...understood by persons reading it who knew him. Powell v. Young, 151 Va. 985, 997-98, 144 S.E. 624, 627, rev'd on other grounds, 151 Va. 1002, 145 S.E. 731 (1928). In other words, the test is met if the plaintiff shows that the publication was "in its description or identification such as to......
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...... Whitten v. McClelland, 137 Va. 726, 120 S.E. 146; Scholz v. Standard Acc. Ins. Co., 145 Va. 694, 134 S.E. 728; Powell v. Young, 151 Va. 985, 144 S.E. 624, (Reversed on rehearing on other grounds, Powell v. Young, 151 Va. 985, 145 S.E. 731). . The ......
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