Watt v. McKelvie

• Decision Date: 22 November 1978
• Docket Number: No. 770738,770738
• Citation: 219 Va. 645,248 S.E.2d 826
• Parties: , 4 Media L. Rep. 1781 Charles V. WATT v. William H. McKELVIE. Record
• Court: Virginia Supreme Court

Page 826

248 S.E.2d 826

219 Va. 645, 4 Media L. Rep. 1781

Charles V. WATT v. William H. McKELVIE.

Record No. 770738.

Supreme Court of Virginia.

Nov. 22, 1978.

Paul M. Peatross, Jr., Charlottesville (Carter & Peatross, Charlottesville, on brief), for plaintiff in error.

Edward R. Slaughter, Jr., Charlottesville (McGuire, Woods & Battle, Charlottesville, on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

In this appeal arising from a defamation action, we consider whether the author, or original publisher, of slanderous statements is liable to the person defamed when republication of the statements was made by third persons during the course of judicial proceedings.

Appellant Charles V. Watt brought this suit for compensatory and punitive damages against appellee William H. McKelvie, Joseph H. Calicott and Raymond E. Hogan based on the republication of certain oral statements alleged to be defamatory and made initially by McKelvie. McKelvie filed several special pleas and the other defendants jointly filed a demurrer. Upon consideration of the pleadings, stipulations of fact and argument of counsel, the trial court, in a written opinion, sustained one of McKelvie's special pleas as well as the demurrer of Calicott and Hogan. We granted Watt a writ of error to the February 1977 final order dismissing the action as to all defendants. Calicott and Hogan are not parties to this appeal. ¹

These are the facts, insofar as pertinent to the issues raised in this appeal, as gleaned from the pleadings and stipulations of counsel. During the period of time in question, plaintiff Watt was self-employed as a manufacturer's agent representing major medical firms "with respect to hospital furniture, equipment and supplies". In addition, he was self-employed as an independent medical design and marketing consultant, also "with respect to hospital furniture, equipment and supplies." McKelvie was likewise a manufacturer's agent; he represented "manufacturers and suppliers of hospital and laboratory equipment, fixtures, furnishings, supplies and other hospital laboratory services." In 1972 Watt and McKelvie signed a contract in which Watt agreed to represent McKelvie's clients as a manufacturer's agent.

In December of 1973, Watt entered into a contract with Lynchburg General-Marshall Lodge Hospitals, Inc., in connection with renovation of a laboratory at the hospital. Watt agreed to perform medical design consulting work with respect to laboratory furniture, equipment and supplies. That contract was executed on behalf of the hospital by defendant Hogan, its Executive Vice President.

In the present suit, Watt alleged that in February of 1975, after McKelvie learned of Watt's contract with the hospital, McKelvie uttered the allegedly slanderous statements in separate telephone calls to defendant Hogan and to defendant Calicott, a physician in the hospital's Department of Pathology. The statements, according to plaintiff's pleading, reported that even though Watt had represented himself to be an independent consultant at the time he entered into the hospital contract and when he subsequently prepared plans which carried "Watt's name as a company," Watt was, in fact, associated with McKelvie in representing Portable Laboratories, Inc. (Porta-Lab), a laboratory furniture manufacturer. Watt further alleged that McKelvie stated that the plans and specifications provided to the hospital by Watt, including room layouts and placement of laboratory furniture, were not prepared by Watt, but were prepared by Porta-Lab. Watt also alleged that shortly after the telephone calls, McKelvie made a personal visit to Hogan and reiterated his previous statements. According to Watt's allegations, he entered into the hospital contract, not as a representative of Porta-Lab but individually as an independent consultant. He further asserted that all of McKelvie's statements to Calicott and Hogan in issue were untrue.

In April of 1975, in the Circuit Court of Albemarle County, the hospital and McKelvie each filed separate civil suits against Watt using, according to Watt's allegation in the present case, McKelvie's "slanderous statements as a basis for said suit(s)". In March of 1976, during the course of giving depositions in Charlottesville relating to the Albemarle County suits, Calicott and Hogan, testifying under oath, repeated McKelvie's allegedly defamatory 1975 statements in the presence of a Notary Public, two attorneys and Watt; McKelvie was not present. According to Watt, he first learned during this 1976 deposition hearing of McKelvie's slanderous statements. This suit ensued, being filed in July of 1976, and is based upon the 1976 republication.

The trial court, in deciding in favor of the defendants below, ruled that "discovery deposition procedures undertaken within the purview of the Rules of Court of the Supreme Court of Virginia constitute a judicial proceeding." The court further found that "testimony given therein is absolutely privileged if material to the subject matter involved in the action to which the discovery procedure is a part." He thus found that Hogan and Calicott, as well as McKelvie, were immune from liability to the plaintiff for the republication of McKelvie's 1975 statements which occurred during the 1976 deposition hearing.

On appeal, plaintiff does not dispute that Hogan and Calicott were protected from civil liability, as the result of their deposition testimony, by the absolute privilege which attaches to the relevant testimony of a witness during a judicial proceeding. See Elder v. Holland, 208 Va. 15, 21, 155 S.E.2d 369, 374 (1967); Penick v. Ratcliffe, 149 Va. 618, 140 S.E. 664 (1927). But plaintiff contends that the privilege afforded Hogan and Calicott for their republication of McKelvie's slander should not be extended to McKelvie, who was not a participant in that hearing. Relying on Weaver v. Beneficial Finance Co., 199 Va. 196, 98 S.E.2d 687 (1957), plaintiff argues that the republication created a new cause of action for slander against McKelvie and that the trial court erred in holding to the contrary.

In Weaver, as here, the one-year statute of limitations, then Code § 8-24, created a problem for the plaintiff. There Weaver alleged he had been defamed by defendants in a letter written in February of 1955 to his employer, the Industrial Relations Officer of the Naval Air Station in Norfolk. The letter was placed in Weaver's file held by the employer and was republished in March of 1956 when the Industrial Relations Officer revealed its contents to a promotion board convened to consider Weaver's employment record. Weaver first learned of the letter upon the republication and filed suit in June of 1956. The trial court sustained defendant's plea of the statute of limitations, but this court reversed. There, the court held that the March republication constituted a separate cause of action if the republication...