Opinion
6 Div. 366.
February 6, 1919. Rehearing Denied April 10, 1919.
Appeal from Circuit Court, Jefferson County; E. C. Crow, Judge.
Nathan L. Miller and Needham A. Graham, both of Birmingham, for appellant.
Forney Johnston and W. R. C. Cocke, both of Birmingham, for appellee.
On the former appeal in this case (Age-Herald Publishing Co. v. Waterman, 188 Ala. 272, 66 So. 16, Ann. Cas. 1916E, 900) we held that count 2 of the complaint was not subject to the demurrer presented against it. This count was amended by elaboration of some of its parts, but without any change in its essential features. Its gravamen still is that the publication complained of is libelous in its implication that Waterman had criminal knowledge of the Knight-Yancey cotton frauds; that he had gone abroad, and did not intend to return, because of that connection; that public mention of Waterman's having obtained a loan from the bankrupt firm would reflect upon him; and that the steamship line represented by him had routed large shipments of cotton on spurious bills of lading. In accordance with our former ruling, we hold that this count, upon which alone the cause was submitted to the jury, was not subject to the demurrer.
If the amended count included improper allegations with respect to damage, for which no recovery could be had, nevertheless the trial court will not be put in error for refusing to strike such matter on motion, since it was open to defendant to object to the evidence offered in support thereof, or to eliminate it by requesting proper instructions to the jury. W. U. T. Co. v. Rowell, 166 Ala. 651, 51 So. 880; Vandiver v. Waller, 143 Ala. 411, 417, 39 So. 139.
The complaint itself shows that the publication complained of related to a creditors' meeting in bankruptcy, which was a judicial proceeding. It, however, charges that the publication was made falsely, maliciously and with the intent to defame plaintiff, and, further, that it was not a fair and correct report of said judicial proceeding.
It thus appears that the complaint anticipates and denies the defense of qualified privilege, and assumes the burden of disproving its two essential elements, viz. the honesty of defendant's intention and the fairness of the report as published. Defendant therefore had no need for any special pleas setting up qualified privilege, since it had the full benefit of that defense under the general issue, and as a pure gratuity was relieved of all burden of proof.
We remark, however, that plea 10 is defective and subject to the demurrer, in that it does not show that the publication was restricted to the official proceedings and testimony, rather than to private remarks and discussions by persons who were mere spectators.
Plea 11 is free from this defect, and was not subject to any ground of demurrer. But, as noted above, the error in sustaining the demurrer was harmless.
On the former appeal a majority of the court held that the act of April 18, 1911 (Laws 1911, p. 487), providing that the adverse party should have the right to demand and receive reasonable notice of the time and place of taking depositions, was not applicable to depositions the taking of which had been previously put in fieri by the filing of interrogatories, as in the instant case. 13 Cyc. 835; 36 Cyc. 1215. The court adheres to that ruling, and holds that the motions to suppress plaintiff's several depositions for want of such notice were properly overruled.
Defendant duly objected to certain direct interrogatories propounded by plaintiff in writing to several of his witnesses. Two of these interrogatories were as follows:
"(6) On or after the 27th day of May, 1910, state whether you read or heard discussed any reference as to the connection of the plaintiff, Waterman, with the failure of John W. Knight, or Knight, Yancey Co.?
"(7) If yea, state briefly the substance and extent of what you read or heard with reference to the plaintiff's connection with said failure," etc.
The answers to these interrogatories were not read in evidence, but were excluded by consent on defendant's motion. But plaintiff was allowed to read in evidence the witnesses' answers to defendant's cross-interrogatory 4, which contained many separate questions, all of which called for details and specifications of the witnesses' newspaper readings "on or about May 26, 27, and 28, 1910," relating to the Knight-Yancey failure or to Waterman in connection therewith, and requesting a repetition thereof in their exact language, or, if not able to quote them accurately, to "state the substance of what was published in each paper." The answer of the witness Turner contained the following:
"The substance of these articles (referring to those in the Birmingham Age-Herald and Montgomery Advertiser) was that Waterman had been implicated in the issuance of spurious bills of lading, had obtained a loan from Knight-Yancey Co. that was not legitimate, and the Age-Herald article gave the impression that Waterman had left the country for good and did not intend to return, and that he had left because he feared the consequences for issuing spurious bills of lading and for assisting Knight, Yancey Co. in obtaining money through the medium of these fake bills of exchange."
Defendant moved to exclude this answer because the direct interrogatories which called forth this cross-interrogatory had been excluded, and the cross-interrogatory was provisional only, and also because it was not responsive to the question. This motion was overruled.
In the case of Olds v. Powell, 7 Ala. 652, 657 (42 Am. Dec. 605), it was said:
"If the examination in chief was excluded because the subject-matter of the examination was inadmissible, we think the cross-examination would share the same fate; otherwise great injustice might be done, as the party against whom the deposition was taken could not know in advance whether the examination in chief would be received or not, and might therefore cross-examine the witness conditionally; and, so far as he confined himself to the objectionable matter brought out upon the direct examination, he would not be bound by it, if the direct examination was not admitted."
This is a sound statement of the law, which we fully approve. Nor do we think it is necessary in such cases for the cross-examinant to give formal notice that his cross-examination is provisional; his seasonable objection to the examination in chief, or to any distinct portion of it, being sufficient in that regard.
But we observe in the instant case that a part of the subject-matter of the examination in chief was the article in the Age-Herald of May 28th, and the witness' answer referring to his reading of that article was not excluded, but was read in evidence. The cross-examination related in part to this subject-matter, and, in so far as the cross-answers were responsive thereto, they could not, under the rule above stated, be excluded because some of the answers in chief were excluded. This applies also to each of the other motions of like character with respect to other depositions.
It may be that some parts of these cross-answers were properly subject to withdrawal or exclusion, but the motions were not so restricted and directed as to raise the question. As presented, they were properly overruled, as for this objection, because they were inclusive of the entire answers, only portions of which were within the operation of the rule invoked.
The second objection to the cross-answer of the witness Turner, viz., that it was not responsive to the question, is of more serious concern. Defendant's contention is that the witness did not give the substance of the article in question, but, instead, stated its effect as he understood it.
Taking the answer as a whole, it is, we think, perfectly clear that the witness, whether designedly or unconsciously, undertook to interpret the article as it impressed his own mind, and to draw conclusions as to its meaning and effect. Upon its face his statement was not a statement of the substance of the article. Under the pretense of stating the substance, he stated his own inferences merely; and under the cloak of this answer, not justified by any question propounded by defendant, plaintiff succeeded in presenting to the jury the conclusions of the witness upon the most vital question in the case — the conclusions which were for the jury to draw, unaided by the opinions of witnesses.
We think that this answer should have been excluded upon defendant's motion, and that the failure of the trial court to do so was erroneous and essentially prejudicial to defendant.
Many questions of law and fact were presented upon the trial of the case, some of which need be considered only in general terms.
It was for the jury to determine whether in fact the publication was libelous in its implications with respect to the plaintiff, Waterman. And, if so determined, in accordance with the charges of the complaint, it seems clear that it was libelous per se, since it imputes a criminal fraud. Ferdon v. Dickens, 161 Ala. 181, 49 So. 188. In such a case injury would be presumed, and a substantial recovery could be had without proof of actual damage.
Under the allegations of this complaint, which showed that the occasion of the publication was one of qualified privilege, the burden, as heretofore stated, was on plaintiff to show either that the report of the proceeding was not fair and accurate, or else that it was made maliciously with the intention of injuring plaintiff — that is, with actual malice.
A fair and accurate report may be made of a judicial proceeding either by reporting it literally and completely, or by giving a more or less condensed summary. And in case of a partial or condensed report its fairness and accuracy with respect to the particular question in hand must in general be determined by the jury. Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 449, 61 So. 345. In the instant case it was clearly a jury question.
Where the occasion is not one of privilege, the falsity of the publication is presumed, and malice is presumed from falsity. But where the occasion is privileged, as here, and the publication is found to be fair and accurate, there is no presumption of malice from falsity, and the plaintiff cannot recover without proof of actual, as distinguished from merely legal, malice. 25 Cyc. 524 (B).
We are unable to discover anything in the language of this publication, or in the circumstances under which it was made, which has any tendency to support an inference of actual malice; and the trial judge, with plaintiff's consent, specifically instructed the jury that they could not award punitive damages. Yet defendant was not for this entitled to the general affirmative charge under the general issue, since, as above pointed out, the issue of fair and accurate report could not be determined in his favor by the court as a matter of law.
Refused charge 36, which instructs the jury that "there can be no recovery on account of having affected a person in his trade, profession, or business, unless you are satisfied from the evidence that the plaintiff at said time was in the exercise or actually performing said trade, business, or profession," is a correct statement of the law, and should have been given. Harris v. Burley, 8 N.H. 216; Gattis v. Kilgo, 128 N.C. 402, 38 S.E. 931; Dicken v. Shepherd, 22 Md. 399; 25 Cyc. 329, 2; Newell on Slander Libel, 175. The evidence shows that, when this publication was made, the plaintiff had abandoned his service as agent of the steamship line to which reference was made in the publication complained of; and the written charge actually given to the jury that they could not award any damages to the plaintiff for injury to his business does not fairly cover the theory and application of the refused charge.
Refused charge 9 instructs the jury that, "if the evidence fails to show that the defendant, in making said publication, had actual malice towards the plaintiff, then you must find in favor of the defendant." It is true that, where the communication is privileged, the burden of proof is on the plaintiff to show actual malice. Lawson v. Hicks, 38 Ala. 279, 285, 81 Am. Dec. 49; Newell on Slander Libel, § 770.
But it must be observed that, although the occasion may be privileged, the publication may exceed its proper limitations, and, when it does so, the privilege is lost. So in this case, although the judicial proceeding furnished the occasion for a qualifiedly privileged publication, the publication was not within the protection of the privilege unless it was fair and accurate. The charge referred to ignored this issue, which, as already stated, was one for the jury to determine. It was therefore properly refused, as were for the same reason charges 25, 28, and 31.
It is not necessary to rule upon the merits of defendant's motion for a new trial. We feel called upon to say, however, that the practice of presenting to the jury elements of damage for which no recovery can be had, especially where their impropriety has been affirmed by a previous ruling of this court, and then, having had the benefit of their general impression upon the mind and sympathy of the jury, of consenting to their theoretical exclusion by a general instruction to the jury not to consider them, ought not to be sanctioned or allowed.
We have omitted the discussion in this opinion of some of the questions argued by counsel. The record is voluminous, the assignments of error are numerous, and the briefs are able and exhaustive. We have given protracted consideration to every feature of the case as presented by the record, but the proper limitations of a judicial opinion forbid a more extensive or more detailed discussion.
For the errors noted, the judgment must be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.