*1 301 So.2d 55 E.

Lawrence BOWLING

Alex S. POW.

SC 679.

Supreme Court of Alabama.

Sept. 19, 1974. *2 Bowling, pro se.

Lawrence E. Harwood, Tuscaloosa, quoted B. also full in Jr., Robert complaint. first appellee. forth the letter of 5 as follows:

“P. O. Box 3001 OF ALABAMA *3 UNIVERSITY UNIVERSITY, ALABAMA 35486 AND “COLLEGE OF ARTS SCIENC- ES June DEPARTMENT OF ENGLISH MAIL CERTIFIED AIR Pow, Dr. Alex President S. University Western Carolina Cullowhee, North Carolina 28723 Dear Pow: Dr. you good during

It was to talk with home, my your recent visit even though conditions adverse for were I hope pray your each of us. CLARK, improved. condition Mine be- has has LEIGH Supernumerary Circuit come Judge. worse. Dean President Jones pushing Mathews are ahead with the This litigation is between two eminent hearing, which scheduled resume on professors former of English at the Uni- 12. June versity of is an appeal by Alabama. This your permit, If health will I should judgment from a of the trial you stating like to write dismissing me a letter the action. your basic points during our remarks The crucial issue is whether the trial These conversation. included the fol- court was in dismissing error in the action lowing : on the ground complaint that the does not state a claim which ‘departmental relief can 1. diary’ filed granted, only ground against by asserted in origi- me Dr. McMillan was motion to dismiss. nally you submitted to and President Rose and Vice President Bennett complaint The original and the amended 1967. complaint unnecessarily lengthy and 2. many given by It

contain full consideration averments that do not consti- you University tute appropriate and other administrative pleading, much of which is in officials that time. the nature of an plead effort to gravamen evidence. We summarize the being 3. It was dismissed as insuffi- stating it is that defendant ground cient filing of termination “falsely maliciously bad faith” charges against felt me. You that the published and concerning charges against made me Dr. Mc- dated containing de- June Millan were irrelevant and immaterial to famatory statements intended defame my performance competence and as a injure plaintiff. The letter set out teacher and scholar. and is shown plaint been have an answer to a letter trying Instead me on to dismiss McMillan, defendant charges by these Dr. Uni- June versity began considering questions. administration tee procedure, Such it seems replacement me, recruitment of a infinitely helpful Dr. would be more McMillan Depart- parties my merely as chairman of signing, all than English. ment you effect, But you and President a communication which Rose and Dr. Bennett left the yet, dictated for As me. I have received replacement committee; before a request was found. no such from the but, notice, will you along the lines of you If points think of other your suggestion, sending copy I am help matter, be of to me your this communication and letter of grateful shall be for them also. Hagood 5 to Professor Annabel you If and, can write such a letter if (also copies Gray, to Professor Willard convenient, notarized, may have it suf- for I shall refer him Mrs. below). fice, your having trip to make a Hagood may do she with them what testify. to Tuscaloosa to Address it to wishes. Chairman, Hagood, Mrs. Annabel D. *4 particular Because I have Hearing not seen the Faculty I should Committee. letter, diary you your in speak which copy. like to have a I am it is unable to determine whether Very sincerely yours, Department English the same record Bowling Lawrence E. which I examined in I could 1967-68. English” Professor of easily determine this if the committee The letter of which contains the were to furnish copy me a record June matter, is as follows: before it and if I could discuss this Gray. record with Professor Willard “90 Brookhaven one, only Even if the record Tuscaloosa, Alabama read, one which I have I am suffi- not 20, 1972 June ciently in versed law to determine “Dr. Lawrence Bowling past E. not my or consideration of P. Box present inquiry O. it and the committee University, Alabama 35486 placing you would have effect of Indeed, jeopardy.’ ‘twice in to it seems Dear Bowling: Dr. me that a case could be made that University decision of the administration recently I your have received letter of charges to file before not based on the to me forwarded from Cullo- departmental whee, Carolina; record constitutes North and I have stud- present letter, inquiry you ‘jeopar- as in placing ied this your as well as similar re- dy’ for the first quest made to me time. personally at the above your telephone address and message di- you your As I during stated to recent through rected to me I Mrs. Pow. have address, visit to this I believe I nev- important misgivings doing about what Gray you, er said to Professor or before you First, have asked. I believe what otherwise, University adminis- you your in out outline of a letter considering replacement tration was to inquiry me committee of Professor McMillan the time it was parallel my you does not remarks to in ref- considering departmental record Cullowhee, and, also, would be accu- event, any erenced In it seems to above. Second, I rate. am no means sure plans me that and activities of the my following your request would be College in of Arts and this re- Sciences helpful you before the committee. gard through better could be determined you I have told both inquiry and President Da- to either Frederick W. Con- Dr. McLain, who, vid pleased Mathews that I Raymond should be ei- ner and Dr. F. appear Dean, ther then, position before the committee or I held the believe writing specific respond College commit- Arts and Sciences. I do not know Department whether the cannot plaintiff’s constitute a for basis English diary damages. ‘insufficient claim for grounds filing for termination charges/ your per-

‘irrelevant and immaterial to Literal uniformity is not to be competence/ formance and I can make found in'countless definitions It of libel. only simple statement that the Uni- essentially injury reputation. an As versity administration elected to file stated Merrill McGraw Justice charges on the basis of whatever record Thomason, 265 Ala. 93 So.2d 741: hand, was before it. On the other libel, “The definitions of as found University did administration recommend cases, vary in phraseology, somewhat to you concerning what it considered more comprehensive, are or less best you University. and the You particular be called decided not to follow this advice. shall charge Generally, involved in the case. pleased to elaborate before publication, false and malicious mittee if that is the committee’s wish. expressed when printing writing, or hope With your health continues by signs libel, pictures, or or is a improve thope and the you [sic] charges punishable an offense by indict equitably able ment, bring or which tends an individ resolve the you, conflict between I am public hatred, ual into contempt, or ridi cule, charges Sincerely yours, dis act odious and graceful society. general This defini Alex S. Pow *5 tion be said to include whatever Alex S. Pow injure tends to the of character an indi vidual, reputation, blacken his imputes or cc: Hagood Professor Annabel fraud, dishonesty, or turpi other moral Gray”; Professor Willard tude, shame, put or reflects or tends to him pale the of social inter letter, of by original, which as shown Co., Birmingham course. White v. Post copy defendant sent a to Professor Anna- 547, 649; 233 172 Ala. So. Marion v. Hagood bel copy and a to Professor Wil- Davis, 217 Ala. 114 So. 55 A.L. lard Gray. complaint The alleges that R. Age Publishing and Iron v.Co. Hagood Mrs. of Faculty was chairman Crudup, Ala. 332.” So. Hearing Committee, plaintiff which before at the time was to stand trial on charges usually, though Words not al demanding position his dismissal his ways, form the basis of actions of defa professor as English University of at the by parties, mation. Known better Alabama, of and that Professor Willard letters, men by of than men of law in gen Gray was presi- associate academic vice “ eral, Words, words, . . . words above, As dent. shown both them are ’’,1 . . . apparently sometimes mean- plaintiff, mentioned in defendant’s ingless, occasionally indicating even “mad- along prominent with other officials or in’t”,2 ness” awith “method often have faculty members of the of the variety meanings such a that the con- Plaintiff-appellant, appearing Alabama. particular text of words must be examined pro appeal, se in the trial and on at times in order to their determine mean- urges complaint that the is sufficient as a ing on the occasion of their As to use. damages claim for for libel. speakers general, writers in or context strongly

It is by usually language pre- insisted able counsel for consists that defendant-appellee follows, both, Pow’s that Dr. letter of cedes or or the words in 20, 1972, question. is defamation, not libelous and it that In the law of how- 1. Hamlet ii. 195. Id. II. at 211. innuendo, inducement,

ever, colloquium. is an or a of examination much field hand, is equally extrinsic circum- On other and includes observable broader that at an not the contexture times the contents of stances found within great publication ex- This to a are not sufficient in and of particular a discourse. defamatory imputa- in a development themselves show tent accounts for subjects pleading plaintiff referred tion directed at and that a show-. law mon circumstances, inducement, ing of extrinsic a colloquium. innuendo and defamato- as ry meaning application directly plaintiff or an are not here concerned —one, pleading, necessary as or two all—is to show of common law the intricacies by governed is the Alabama defamed. the action Procedure, a considera- but Rules Civil necessarily Defamation not involve does terms, applicable as tion of mentioned opprobrious language. or It is scurrilous legal of def- strictly expressions actions elegant, often refined in es scholarly light to shed some only, amation seems environment, sence and and some of the Although before us. question linguists engaged best and been stated, is that variously the inducement victims of it. The hereto- parties can find complaint in an defa- part of the action distinguished company, as evidenced forth extrinsic facts which mation that sets Cooper Greeley, (N.Y. Denio 347 appropri- deems advisable 1845), in which the words of Horace Gree show in allege effort to ate ley concerning Cooper, Fenimore published is de- complaint matter James bring “He will the action New part of famatory. The innuendo York, here, we are known nor in Otse seeks complaint wherein de go, he known there” were held de- explain meaning language as reputation famatory imputing bad famatory, would could or otherwise Cooper Otsego, example of defama ambigu- so innocuous or be considered as implication. tion indirection suave meaning defam- ous or uncertain clearly The atory sense is revealed. that the resolution of contention colloquium part is that language here is not involved *6 defamatory charges in that the that effect se, though may defamatory it per even be concerning published was of and matter necessary, per quod, is not as the Libel and plaintiff. the Am.Jur.2d one re- special damage at least claims in Slander, Evidently perceiving 412-414. §§ alleges as spect, in that that a conse- it in did the libelous letter not that plaintiff quence alleged publication the of is, face, itself, and that on its without of discharged position from his was tenured circumstances, extrinsic consideration of professor English of the as the plaintiff, or in order to bolster defame Alabama, profes- height at the of his of defamatory, plaintiff al- that it was claim expectancy of sional career and with an circumstances, many includ- leged extrinsic years future em- fourteen of and fruitful appropriately a ing that are several ployment, that was cut off from part pleading, at common law of whether benefits, oppor- many fringe including the Rules of Civil Pro- or under the Alabama tunity bene- to vest his teacher retirement ; question presented is here cedure but no fits in Retirement the Alabama Tenure thereof, as we inappropriateness to the and system the of life and benefit a insurance no to it. take action with reference through policy. point to the Speaking Jus- tice, Gardner, in Harri- Justice, Chief later readily is seen there be It to be that can 670, 103 Burger, son v. 212 Ala. So. certainly clearly de- matter that is so and the court held: its famatory on applicable and opinion foregoing are of the the necessity, was no even at “We face that there cases, that counts law, support the common to set in such authorities view forth failing 4 and in to suffi- defective from me the Committee does Inquiry of special damages ciently parallel my suffered allege to you remarks in Cullo- however, also, think, whee, and, by plaintiff. would not be accurate.” little, respect as apparently that count C suffices in that There is if anything, showing of the consequence derogatory Standing that as a about the statement. alone, usual, publication plaintiff’s false credit was it is as innocuous and as the impaired, generally accepted in fact un- appropriate, and that she as state- was disagreement in Bir- get by person able to credit at stores ment of one with other This, mingham. opinion, in our meets what another has said or written. But requirements special damages. standing is not judged as statement to be alleges language light This is weighed count alone. It to be in of maliciously falsely publish- used in its entirety, requirement and the letter writing, and, by Berry ed in aver- City forth in of Insur- followed New York suffered, special damages Company, is ments of ance 210 Ala. 98 So. stating against as of as background sufficient a cause action viewed pre- herein reply, copy disclosed authorities letter to it was a of viously cited. which was transmitted defendant Gray. he sent copy Professor The

statement, as well as other statements “It results that the erred sus- letter, defendant’s is to be considered taining the demurrer C. Let to count connection with the picture, entire includ- reversed, judgment cause ing particularly immi- circumstances of an remanded.” hearing charges nent against plaintiff conduct could and did result connection, however, is In it to be not- polite dismissal. The statement is ed two dichotomies can involved temperate, whole, as is the letter as a but and are often of either of confused use prevent this does not it being defam- mentioned terms in contradistinction atory. particular in this is Whether it de- other, per as se” the term “defamation famatory upon or not depends largely capable that which is signifying both reasonably it can be construed on its face and that which imputation part of an effort proof special actionable present hearing before the damage, quod” is ca- per “defamation committee inaccurate or false statements or pable denoting extrinsic necessity testimony. defamatory meaning to establish a facts parties give special their briefs proof special damage. See sentence, proce- consideration to the “Such Prosser, Torts, Ed.). p. (4th dure, me, infinitely seems would be *7 helpful merely to all parties more than here is Our task to determine effect, signing, in a communication any part of the letter of defendant you had Appellee dictated for insists me.” reasonably construed as can be particular language way “in no us to for plaintiff. It is not impugned Bowling.” Dr. some There is construed, but say whether it should be so difficulty arriving in any conclusion susceptible of reasonably whether it is only again, that it did. Here both letters and a construction. such all the circumstances must be taken into Although consideration. it is neces- this, in his appellant emphasizes toAs sary to invite the attention parties, of the particular letter. parts of the some brief lexicologists, dictionary themselves to stated, on point, believe we note the letter “I that the transitive of In defendant letter your verb “dictate” in you out in outline defined Merriam- what Dictionary as the Committee. The Webster, statements of International Third attorney in the following are contained follows: excerpts complaint: from the recite, speak, or read off 1: “—vt to down person for a to write (something) Early closing argument, “17. in machine to record transcribe or a or University . . Counsel . [not secretary] letter to the [,dictating a [dic- in this counsel cited defendant’s case] a questions to tating test class] [dictat- derogatory probative letter as of the ‘one some- reporters]; to the ing a statement items of evidence’ and as ‘a documented speaking 2 a: compose to while times: pervert effort facts’: peremptorily issue an order usu. as In this search for truth where there is part each what dictating duke [the controversy, we submit that one of the impose or to command should b: take] probative items of evidence is PRESCRIBE, EN- authoritatively: irresistibly Exhibit 1 where Committee’s we have or forcefully direct JOIN: pervert a documented effort to facts. van- peace terms [dictating person This is from one who is nec- determine require or quished] c: to pletely in proceed- use disinterested these weight the floor—s essarily [the ings probably be most arrangement dic- should heavy supports] [an objective party into witness that either bring d: tated the situation] bring. question was, determine, could form, influence being, or ‘Please write this pub- answer.’ The commandingly [dictating . . an- . swer T it’s authoritatively, can’t is, because true. designate lic toe: taste] I It’s not what presi- said.’—the fabrication. possible opposition overriding [a I That’s to say. not what meant enough strong dent to—his [H. successor]” T., pp. 6] 1025— comprehensive definition With mind, that it can it is to be observed argued all the circum-

well that under “19. Counsel ... strong-willed imputation a stances an again, cited fi- defendant’s letter as the part on the determination point his argument: nal and climatic as should write that defendant great deal have heard concern- written, Hear- presentation had ing the truth contained Bowl- Dr. Committee, lan- ing is to in the be found ing’s everything he testimony and argument used, though strong guage even been, has told us has contrary. to the can be made words, truth, [plaintiff’s attorney’s] truth, in- again respectfully truth. particulars of defendant’s Other vite attention the Committee’s issue with wherein he takes points Committee Exhibit 1. It to sev- plaintiff stated correctness of what one, eral untruths. Number the un- by defendant his letter been said had attempted ob- truth which parties considered the briefs . Even tained from Dr. Pow. . . toas disagreement definite between them proven importantly more untruth is the defamatory meaning. question of this, unable were witnesses *8 unwilling testify that for Professor support plaintiff’s In contention of because, is charged in this letter an Bowling, defendant in effect of the willingness, expressed T don’t think jus- to obstruct the plaintiff an effort you like what will hear when you will hearing before that should obtain in a tice is there, Committee, you but all have to get do Hearing relies Faculty the he pp. Transcript, [Hearing call me.’ heavily upon by statements made counsel argument before the 1066-1067] for 186 issues); Rules 26-37 allegation let- and of that Dr. Pow’s formulation

With (depositions discovery).1 and irrefutable evi- and ter was undeniable testimony falsity the of dence of the 1. persists violating a "Where in- personal professional lack of oppor being given 8(a)(2), Rule after an plaintiff, proper. tegrity of Counsel tunity replead, dismissal Yorty, Cir., F.2d See Corcoran v. 9 347 respectfully sub- again concluded: ‘We Moody, Cir., 222, 223; Agnew v. 9 330 F. case, proven wq our mit that 868, 2d 870-871. upheld’ to charges be we ask “This leaves consideration the for being per- ‘unfit to plaintiff as dismiss complaint in question of its teaching adequately duties form present upon a form fails to state claim of English’ of Department [‘Statement so, and, granted which relief if can be Charges,’ page 2].” correctly de- whether the district court not be termined that the action could clearly complaint contravenes The saved amendment of the com- re Civil Procedure the Alabama Rules of plaint which the could reasona- plain quirement a short and statement of bly expected to make.” is pleader showing that of the claim relief and that each averment entitled to adoption the Alabama concise, di simple, pleading shall be a Rules precludes of Civil Procedure us 8(e) (1), rect, 8(a) in Rule as set forth testing sufficiency complaint by of the for but the action was dismissed a formerly governed, rule that com a plaint reason, is made that challenged by and no contention demurrer should be against plaintiff, construed if the a com is pleadings rules of such violation plaint subject reasonably is to such a con dismissal of the action. ground valid for a By adoption struction. of the Alabama ground is is well settled not a valid That Procedure, opposite Rules Civil upon the passed in the cases that have principle obtains, following of construction point governed by Rules Federal where principle established in De forth Procedure, in all material the same Civil Witt, supra, as follows: requirement respects as to the mentioned subject “A is not to dismis- Pail, In as the Rules. DeWitt v. Alabama ground sal that it fails to state the court stat (9th 1966) 366 F.2d 682 Cir. a claim appears beyond unless it doubt ed: prove can no set of support facts of his claim which “Failure, complaint, in an initial to set Conley would entitle him v. to relief. short and forth the claim means of a Gibson, 41, 99, 355 2 U.S. 78 S.Ct. L.Ed. statement, plain required Rule 80; Sawyer, Cir., 2d Marshall v. 9 301 ground is not a for dismissal 8(a)(2), applying F.2d 647. In this test it is are prejudice, since there action with to be borne in mind that spirit procedures correcting a for available Federal Rules of Civil Procedure re- prolix complaint. vague v. See Glus quires us pleadings to construe the' most Terminal, 359 Brooklyn Eastern District strongly pleader. in favor of the Metro- 231, 235, 3 L.Ed.2d U.S. 79 S.Ct. Cir., politan Fugate, Life Ins. Co. 5 v. procedures Among such available 770. 313 F.2d A liberal construction 12(e), in Rule provided pleadings for especially those called they prepared by layman, where were (mo- Federal Rules of Civil Procedure Downing Supreme New Mexico State statement); tion definite more Court, Cir., F.2d 436.” portions strike 12(f) (motion Rule (right pleading); Rule Practice, Lyons, In 1 Alabama Rules procedure 96-97, (pre-trial Civil Annotated Rule Procedure amend);

187 may although it betoken purpose, for that of the control- following statement succinct that that and effect pleadings: serious contention of ling principle of construction that plaintiff publication, to the consented repu- expressly intended “Rule 8 copies is, Pro- transmission of the the Ala- standing doctrine long the diate not Gray. Hagood fessors We need strictly construing pleadings the of bama efficacy any special of now determine the pleader, on de- ruling the when against may defense, may or which or affirmative Hospital Baptist Alabama See murrer. interposed. defenses would not be Such 109, Carter, 145 So. Ala. 226 Board v. privi- any defense of prospective include Richards, 98 3 v. Richards (1933); 443 which, truth,4 strength of lege the 599, v. Childress (1892); 12 817 Ala. So. definitely possibly great, cannot be though According Miller, (1842). 4 Ala. 447 posture, the present assayed now. In its rule proposed 8(f), goal of Rule at upon, purpose for the case can be looked to do so as pleadings is to construe the hand, assumption requires an of justice. appraising ‘In substantial truth (whether of factual averments sufficiency follow we not), in which defendant true or as one accepted rule that a his of others the contents communicated to unless plaint should not be dismissed letter, moral or social any legal, without beyond appears that doubt justification so, obligation to do support of prove facts in can no set of reposed and in in him breach of confidence re- him to his claim which would entitle by plaintiff. 41, Gibson, Conley 78 355 lief.’ U.S. v. 99, v. (1957); 2 Dennis L.Ed.2d 80 S.Ct. misgiving as to would have serious Bay, (2d of 151 411 Village Tonka F.2d any of any at time decision Miller, Wright Feder- 1944); 5 Cir. complained are the contents of the letter 1220, Procedure, 1286 al Practice and susceptible of §§ a reasonable construction (1969).” actually defamatory, they but such that are required at is neither present

a decision It nor in the best interest of correctness. to be contention There seems no readily that there can be times requisite can seen tripartite situation did that exist, when such a can and should no determination publication, not that there was threshold, per- be made at the but we is, person to no one that communication that involved suaded the circumstances person person, in the another a third about present real- here such a copies Pro do case. We the letter to transmission ize that at the trial Gray. any Hagood fessors Annabel conclusion Willard say may be able to the case the ignore possibility trial court We do not of such publication as a theory perhaps on matter that contention that law plaintiff, cannot re but we agents constituted them communication, certainty such foresee ceipt of the as held now with reasonable then, Co., Metropolitan Mims 200 a result. it can said v. Life Ins. Whether trial, denied, likely de- (5th cert. U.S. the conclusion will Cir.) F.2d 940, of- pend largely but the evidence is 73 S.Ct. 97 L.Ed. what fered, thereto, rulings objections shown do not on circumstances record conclusion, admissibility warrant evi that we cannot now thereof foretell; likely many to that be envisioned effect cannot but will be dence there conclusively on in favor defendant will be difficult to make confidence. point, prevent jury question so as to ex- It well be has an them, plain as to it. The traordinarily reference to con- hard road travel defendant, tiff’s letter not sufficient he is the trial entitled vince Tonsmeire, Co., Birmingham 3. 281 Ala. Ala. Tonsmeire White v. Post So.2d 645. 178 So. 449. *10 asking Pow to Bowling Dr. Dr. facts determine whether the trier of have fashion, can, respond be character- any in a understood any part of the letter was defamatory per quod. or per se it was ized as by those to whom sense judge’s decision issues, including the trial would affirm published, as well as other for failure granting the to dismiss motion presented by potential affirmative those be upon which relief can so, a to state a claim defenses, and, in event he does to have granted, believing judge trial attempting to continuing difficult task eminently right- been correct. of facts convince the trier cause, not con- but we are of his eousness us that he before COLEMAN,

vinced the record JJ., concur. MERRILL and on the day in court disentitled PER CURIAM.

evidence.5 1974, day July, On the 3rd Chief fully v. Rob- considered Gertz We assigned the Honorable LEIGH Welch, Inc., 94 S.Ct. ert 418 U.S. Justice CLARK, Judge, Supernumerary Circuit (1974), destined 41 L.Ed.2d- Supreme temporary service on the for many deci- future important an factor through that date Court of Alabama defamation, from and find sions cases of provisions of under the October in conflict with is not our decision herein new Article 6.10 of the Section what was held therein. Judicial 328). (Constitutional Amendment No. appel- agreement general are Supernumerary Following Cir- such order assignments of error not directed lee task of Judge assigned cuit Clark in dismiss- the trial court at the action of in this opinion for this court preparing an taken and ing the are not well action cause. appellant’s presented in adequately further discussion argument. brief and No language This construes necessary or ad- assignments seems of such 6.10, “The Chief of said Section Justice * * * visable. jus supernumerary assign * * * temporary judges, and tices to be appealed due judgment The that such any meaning service in court.” as reversed, dismissing the ac- judgment as to du- assignment is limitation remanded the cause tion set aside and that under such ties and functions and herewith. proceeding further in accordance judge supernumerary circuit assignment a before authority on cases has the to vote Reversed and remanded. the court. HEFLIN, and J., FAULKNER C. HARWOOD, MADDOX Justices

JONES, JJ., concur. themselves from McCALL recused remand- for reversal and The vote case. MERRILL, and BLOOD- COLEMAN concurrence of ment was to 3. WORTH, JJ., dissent. Title suffices. members of this court § 1940, as amended 14, Code of Alabama McCALL, HARWOOD, MADDOX Supple- (Recompiled 1958-1973Cumulative JJ., recuse themselves. ment) . BLOODWORTH, (dissenting). Justice MERRILL, HEFLIN, J., C. BLOODWORTH, FAULKNER dissent I do believe I must JJ., response JONES, to the concur. letter in direct Dr. Pow’s dispositive preclude note Nor is this of the case. This is not be construed to pro- encourage discourage raising, prejudge merits, such or fu- intended to conceivably pretrial question cedure. that could ture