Tanner v. Stevenson

• Decision Date: 07 June 1910
• Citation: 138 Ky. 578,128 S.W. 878
• Parties: TANNER v. STEVENSON.
• Court: Kentucky Court of Appeals

128 S.W. 878

138 Ky. 578

TANNER v. STEVENSON.

Court of Appeals of Kentucky.

June 7, 1910

Appeal from Circuit Court, Clark County.

"To be officially reported."

Action by Adelaide Stevenson against Charles A. Tanner. From a judgment for plaintiff, defendant appeals. Affirmed.

Pendleton Bush & Bush, J. Smith Hays, and Tom B. McGregor, for appellant.

J. M Stevenson and F. H. Haggard, for appellee.

CARROLL J.

This is an action for libel growing out of a letter concerning the appellee, Adelaide Stevenson, written by the appellant Tanner, while superintendent of common schools in Clark county, to J. H. Fuqua, state superintendent of public instruction. Miss Stevenson, who had been teaching in the common schools of Clark county for several years, was examined in June, 1907, as required by law for the purpose of obtaining a certificate that would enable her to continue teaching in the public schools. At the time of her examination, the appellant, Tanner, was county superintendent of common schools, and in connection with two competent persons constituted a county board who examined applicants for certificates. This board had authority to refuse a certificate to any applicant who did not pass a satisfactory examination or who did not have a good moral character. There was also a state board of examiners of which the state superintendent of public instruction was chairman, and this board had the authority to examine applicants for teacher's certificates and to grant or refuse them for the same reasons that the county board did.

It is charged in substance in the petition that Miss Stevenson, having presented herself before the state board of examiners as an applicant for a state teacher's certificate, passed an examination that entitled her to a certificate, but that before the certificate was issued Tanner maliciously, and with the intention of injuring her and to prevent her from getting a certificate from the state board, composed and sent to Fuqua, superintendment of public instruction, the following false and scandalous letter: "You know that J. H. Thomas, with Miss Stevenson, recently stood the examination in Frankfort. In July Miss Stevenson failed in her examination here. As to Miss Stevenson, I have heard from E. L. Butler, trustee of district No. 16 in this county, where she once taught, and G. W. Lee and L. C. Cockrill and J. I. Glover, trustees in district No. 46 in this county, and J. E. Lanter and D. M. Tanner and others whom I have not talked to recently, that she was not of a good moral character. I know nothing except what I have been told by these gentlemen as to whether this is true or not; but some of these gentlemen have volunteered this information and have said they would testify to the same if called upon at any time. In view of these facts, both as to Mr. Thomas and Miss Stevenson, I do not think a certificate should be issued to either of them, but of course I submit the matter to your judgment." In his answer, Tanner pleaded in substance that at the time he wrote the letter Miss Stevenson was a resident of Clark county, and he believed that she intended if she received the state certificate to teach in the common schools of Clark county; that he was the duly elected and acting superintendent of common schools in that county, and had received the information as to her character contained in the letter and believed it to be true; that the letter, which was mailed directly to the state superintendent of public instruction, was written in good faith in the discharge of his duties as county superintendent and without any wicked or malicious intent to injure Miss Stevenson in her good name or otherwise or to bring her into public scandal or disgrace, and with no other purpose than to acquaint the state superintendent with the information therein set out and submit the matter for his consideration. He further pleaded that, in stating in the letter that he had heard from the parties named that the plaintiff was not of good moral character, he intended, and said letter meant simply, that this was her reputation, and what he had heard as to her reputation referred and related to her conduct with men; and that he intended to and did state that her reputation in Clark county for moral character was not good. He further charged that at the time he wrote the letter Miss Stevenson did not have in that county a good reputation for morality in her conduct with men. Upon a trial before a jury, a verdict was returned in favor of appellee, assessing the damages at $5,000. The judgment upon this verdict we are asked to reverse for errors committed in failing to properly instruct the jury.

Before coming to the legal questions involved, and to better understand the respective contentions of counsel concerning them, it will be appropriate to state briefly what the evidence conduced to show. The appellee at the time she was examined in 1907 by the county board of Clark county had a third-class certificate, and under the authority of this certificate and previous like certificates had been teaching in the common schools of Clark county and at different places for a number of years. A day or so after submitting to the examination, but before receiving any certificate, she learned that she had received a second-class certificate. Being of the opinion that she was entitled to a first-class certificate, she asked superintendent Tanner to tell her in what subjects of her examination she had failed to pass, and requested permission to look over her examination papers. In reply to this request, Tanner told her in substance that she could either take the certificate that had been issued to her but not yet delivered, or stand a re-examination. The result of interviews between herself and Tanner was that she did not accept or receive the second-class certificate, and Tanner indorsed on his records that she had been re-examined and a certificate refused. Shortly after the matter was thus ended, she made application to the state board of examiners, of which J. H. Fuqua, as state superintendent of schools, was chairman, and there passed an examination entitling her to what is known as a "state certificate"; but before this certificate was delivered the superintendent of public instruction had received from Tanner the letter before mentioned, and held up the certificate. There was also evidence to the effect that, although Miss Stevenson had not really stood an examination that entitled her to a second-class certificate, the examiners, including Tanner, had agreed to issue her one, but that before the certificate was delivered Tanner learned from reputable gentlemen living in school districts in which the appellee had taught that she was not of good moral character, and was induced by this information to decline to deliver the certificate. In respect to the reputation of appellee for morality, there was evidence tending to prove that it was good, and also evidence conducing to show that it was bad. To make a long story short, so far as the voluminous facts contained in the record are concerned, it is the contention of appellee, supported by some evidence, that Tanner took offense because she requested the privilege of looking at her examination papers, and for this reason he refused to deliver to her the certificate that the board of examiners had agreed to issue. And that, becoming more aggravated when he learned that she had passed a satisfactory examination before the state board, he attempted to prevent her from getting a state certificate by writing the letter to Fuqua, and was prompted to write this letter by malice and ill will towards her. On the other hand, Tanner insists that in writing the Fuqua letter he was actuated solely by a sense of duty to the public schools, of which he was an official, and did not entertain towards Miss Stevenson any ill feeling, hatred, or malice, and in this position he is sustained by some evidence.

The first and most important legal question to be considered is: Did the Fuqua letter come within the scope of what is known in law as an "absolutely privileged communication"? If it did, then the court should have directed a verdict for Tanner notwithstanding the evidence of his malice, hatred, or ill will towards Miss Stevenson and without any regard to the motives that induced him to write the letter. If it was protected by this high privilege, it is of no account whether his motives were good or bad, or whether the matter contained in the letter was true or false. Nor could any inquiry be made into the state of feeling existing between the parties--it was all the same whether they were the best of friends or the bitterest of enemies.

In support of the proposition that the letter was absolutely privileged, the argument is made that Tanner at the time he wrote it was superintendent of common schools in Clark county, and as such superintendent was charged in an especial manner with the duty of protecting the schools from the bad influence of teachers who did not possess a good moral character, and so it was his privilege and right to place Fuqua, as superintendent of public instruction, in possession of the information he had concerning the moral character of Miss Stevenson. But in our opinion the law of absolute privilege cannot be invoked to protect Tanner from the consequences of this letter. The cases to which this privilege applies are few in number and ought not to be enlarged. It would be a dangerous and vicious thing to license people to write and speak without any restraint. There are many evil-minded and recklessly disposed who would shelter if they could under the protection afforded by absolute privilege and give free bridle to tongue and pen to injure or destroy an enemy. It would...