{ "id": 5344106, "name": "James J. STEWART, Plaintiff-Appellant, v. Herman GING, Owen Gragg, John W. Porter, Ben Sturdivant, Paul H. Tripp, Edwin W. Parker, Robert J. Smith and Joe B. Scrimshire, Defendants-Appellees", "name_abbreviation": "Stewart v. Ging", "decision_date": "1958-07-02", "docket_number": "No. 6362", "first_page": "270", "last_page": "275", "citations": [ { "type": "official", "cite": "64 N.M. 270" }, { "type": "parallel", "cite": "327 P.2d 333" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "83 Utah 31", "category": "reporters:state", "reporter": "Utah", "case_ids": [ 45626 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/utah/83/0031-01" ] }, { "cite": "169 S.E. 622", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "204 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624260 ], "opinion_index": 0, "case_paths": [ "/nc/204/0690-01" ] }, { "cite": "228 Mo.App. 817", "category": "reporters:state", "reporter": "Mo. App.", "case_ids": [ 8730097 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/mo-app/228/0817-01" ] }, { "cite": "62 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2712798 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/62/0047-01" ] }, { "cite": "62 N.M. 42", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2712399 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/nm/62/0042-01" ] }, { "cite": "223 P. 766", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "29 N.M. 418", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841819 ], "opinion_index": 0, "case_paths": [ "/nm/29/0418-01" ] }, { "cite": "63 A.L.R. 649", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "56 N.M. 538", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584733 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/56/0538-01" ] }, { "cite": "53 N.M. 145", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580763 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/53/0145-01" ] } ], "analysis": { "cardinality": 590, "char_count": 9975, "ocr_confidence": 0.738, "pagerank": { "raw": 3.142899392348937e-07, "percentile": 0.8621535464036706 }, "sha256": "31ba95649c2dd3de8b7f44e12d6824176306dd6cc26c87056872b80bb8ebca1b", "simhash": "1:b308fb21dbbb3db9", "word_count": 1626 }, "last_updated": "2023-07-14T20:59:53.757247+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "COMPTON, J., and J. M. SCARBOROUGH, GARNETT R. BURKS and FRED J. FEDERICI, District Judges, concur." ], "parties": [ "James J. STEWART, Plaintiff-Appellant, v. Herman GING, Owen Gragg, John W. Porter, Ben Sturdivant, Paul H. Tripp, Edwin W. Parker, Robert J. Smith and Joe B. Scrimshire, Defendants-Appellees." ], "opinions": [ { "text": "LUJAN, Chief Justice.\nThis is a libel action based upon alleged defamatory statements contained in a report by a Commission on Investigation of the Oklahoma Annual Conference of the Methodist Church. The report, or a summary thereof, was published in the Oklahoma-New Mexico Methodist, the official publication of the Methodist Church in the Oklahoma-New Mexico area.\nAppellant, plaintiff below, alleges that prior to May of 1956 he was a regular ordained traveling preacher of the Methodist Church duly appointed as the preacher of St. John\u2019s Methodist Church in Albuquerque, New Mexico, and that he is still a duly ordained preacher.\nIn December of 1956, appellant forwarded written charges against W. Angie Smith, \u25a0Bishop of the- Oklahoma-New Mexico Conference of the Methodist Church, to the District Superintendent of the Oklahoma Conference of the Methodist Church.\nAppellant further alleges that in January of 1957 the aforementioned committee on investigation purportedly conducted an investigation of appellant\u2019s charges against Bishop W. Angie Smith.and published its report, or a summary thereof, in the Oklahoma-New Mexico Methodist. The title of the report in question is \u201cComplaints Against Bishop W. Angie Smith Found Base And Untrue-Accuser Is Condemned.\u201d Out of this report arises the action for libel involved in this case.\nThere is some disagreement as to whether the appellee, Joe E. Scrimshire, defendant below and Superintendent of the Methodist Church in Carlsbad, New Mexico, was an official member of the committee on investigation. Appellee signed the allegedly libelous report and was the only defendant served with process.\n\u2022 The complaint alleges that the report cont-'-ied false statements made by appellee with the intent and purpose of injuring appellant\u2019s reputation as a minister and as a man.\nAppellee moved that the trial court dismiss the complaint upon the following grounds:\n(1) That the matter published was not libelous per se, and therefore appellant had failed to state a claim upon which relief could' be. granted since there was no allegation of special damages, and\n(2) That the published report was privileged.\nThe court below granted the motion of appellee to dismiss the complaint and appellant appeals from that, order to this court.\nAppellant first contends that the published report is libelous per se and that conse- . quently it was unnecessary to allege special damages in the complaint. We agree with this contention.\nThe report in question stated that the plaintiff, a minister of the gospel, \u201chas either willfully tried to deceive, or is suffering \u2018from a greatly confused mind;\u201d that he \u201chas been guilty of the grossest type of unministerial conduct;\u201d that he \u201cviolated his pledge at the altar;\u201d that \u201che has demonstrated either cowardice, ignorance, or willful deceit;\u201d and that \u201cwe condemn James J. Stewart for actions unbecoming a minister.\u201d\nIn this jurisdiction the term libel per se is applied to words which are actionable because they are opprobrious in and of themselves without anything more. Chase v. New Mexico Publishing Co., 53 N.M. 145, 203 P.2d 594; See Del Rico Co. v. New Mexican, Inc., 56 N.M. 538, 246 P.2d 206. For purposes of argument before this court, appellee himself concedes that the article is libelous per se.\nThe decision then must, of necessity, turn on the doctrine of privilege in the law of defamation.\nThe court\u2019s action in dismissing the complaint was undoubtedly based upon one of the following grounds:\n(1) That the occasion was one which furnished an absolute privilege, or\n(2) That, as defendant contends, the facts pleaded are not sufficient to show malice to the extent necessary to overcome the prima facie qualified privilege, or\n(3) That the occasion was one of qualified privilege and such privilege was not abused.\nThus it becomes necessary to consider each of these possible bases for the trial court\u2019s ruling.\nThe occasion did not furnish the defendant with an absolute privilege. Absolute immunity from responsibility without regard to purpose, motive, or reasonableness of conduct is, and should be, confined to a very few rather well-recognized situations. Prosser on Torts \u00a7 94 (1941). The case at hand does not fall within any of such recognized situations as appellee appears to concede in his argument. It follows then that the complaint could not have been dismissed on the ground that the occasion was one of absolute privilege.\nWe are of the opinion that the occasion was one of qualified privilege. Numerous cases accord a qualified privilege to reports, charges and accusations, and investigations made by committees of religious organizations for the advancement of the mutual interests of the parties to the communication. 1 Harper and James, The Law of Torts \u00a7 5.26 (1956); see extensive annotation in 63 A.L.R. 649. No minister can expect that the question of whether he measures up to the standards of behavioi demanded by his parishioners and church superiors might not be investigated by committees of his church\u2014especially when he has made serious charges against a church superior. Nor can a minister expect that the result of such investigation will not be published in the official paper of his church. See 33 Law Notes 73 (1929).\nAppellant, while recognizing that the occasion was one which gave rise to a qualified privilege, urges that appellee was not protected by such privilege. We find no merit in this contention. Appellee was one of the eight persons who signed the report in question. It seems clear that he was, at the very least, an ex officio member of the committee on investigation.\nHaving determined that the occasion was one of qualified privilege, it becomes necessary to answer appellee\u2019s contention that the complaint pleads a mere conclusion and fails to plead sufficient facts to show malice and overcome the \"prima facie\u201d qualified privilege. See Ward v. Ares, 29 N.M. 418, 223 P. 766.\nParagraph 5 of the complaint stated as follows:\n\u201cThat the said article contained false statements maliciously made by each of the said Defendants with-the intent and purpose of injuring the reputation of the Plaintiff as a minister and as a man.\u201d\nParagraph 7 of the complaint stated as follows:\n\u201cThat the publication of the said article, \u2018Plaintiff\u2019s Exhibit A\u2019 maliciously and falsely attacks the character and reputation of the Plaintiff, without serving any legitimate or lawful purpose with respect to the official findings of said Committee on Investigation, and that said article was caused to be' published primarily for the purpose of maligning the Plaintiff *\nIn this jurisdiction, where' malice may be averred generally, the complaint pleaded sufficient facts to show malice. See Rules of Civil Procedure, rule 9(b), section 21-1-1(9) (b), N.M.S.A.1953.\nA motion to dismiss for failure to state a claim upon which relief can be granted, like the old common law demurrer, admits well-pleaded facts. First National Bank of Santa Fe v. Ruebush, 62 N.M. 42, 304 P.2d 569; 2 Moore\u2019s Federal Practice \u00a7 12.08 (2d Ed. 1948). Thus it must be taken as admitted that the article was falsely and maliciously published. This being the case, the complaint could not have been dismissed for failure, as appellee phrases it, \u201cto state facts sufficient to overcome the prima facie existence of the privilege.\u201d\nThis brings us to the third and last possible basis for dismissing the complaint, namely, that the occasion was one of qualified privilege and the privilege was not abused. We have previously stated that the occasion was one which furnished a qualified privilege. Accordingly the pivotal question is abuse of privilege and the allocation of function between judge and jury in this regard.\nThe question whether an occasion gives rise to a qualified privilege is one for the court as an issue of law. Once the occasion is ruled by the judge to be qualifiedly privileged, the question whether it was abused (often expressed in terms of malice, i.e., whether the publisher acted from actual ill-will or from an improper purpose) is ordinarily for the jury. 1 Harper and James, The Law of Torts \u00a7\u00a7 5.25, 5.29 (1956); Fraser, Law of Libel and Slander p. 178 (5th Ed. 1917) ; Odgers on Libel and Slander p.229 (5th Ed. 1911) ; Prosser on Torts p. 852 (1941).\nWe have previously recognized the above rule. In denying a motion for rehearing in the case of White v. Morrison, 62 N.M. 47, at page 51, 304 P.2d 572, at page 575, we stated the following:\n\u201cAssuming for the purpose of our opinion that a qualified privilege exists in Racing -Stewards while pursuing investigations of law violations at the track, whether what was said at the time and place in question was made in the exercise of that privilege, was a question for the trier of the facts which found it was not.\u201d (Emphasis added.)\nOnly in the case where but one conclusion can be drawn from the evidence is the determination of the question of abuse of privilege a matter of Law for the court. Prosser on Torts, supra (1941); Fraser, Law of Libel and Slander, supra; Conrad v. Allis-Chalmers Manufacturing Co., 228 Mo.App. 817, 73 S.W.2d 438; Stevenson v. Northington, 204 N.C. 690, 169 S.E. 622; Williams v. Standard-Examiner Publishing Co., 83 Utah 31, 27 P.2d 1. Reasonable men could easily differ on the question of abuse o.f . privilege in this case.\nAccordingly the judgment is reversed and the cause remanded for further proceedings consistent with this opinion.\nIt is so ordered.\nCOMPTON, J., and J. M. SCARBOROUGH, GARNETT R. BURKS and FRED J. FEDERICI, District Judges, concur.", "type": "majority", "author": "LUJAN, Chief Justice." } ], "attorneys": [ "Nordhaus & Moses, Fred Trechel, Albuquerque, for appellant.", "Atwood & Malone, Roswell, Neal, Neumann & Neal, Carlsbad, for appellees." ], "corrections": "", "head_matter": "327 P.2d 333\nJames J. STEWART, Plaintiff-Appellant, v. Herman GING, Owen Gragg, John W. Porter, Ben Sturdivant, Paul H. Tripp, Edwin W. Parker, Robert J. Smith and Joe B. Scrimshire, Defendants-Appellees.\nNo. 6362.\nSupreme Court of New Mexico.\nJuly 2, 1958.\nNordhaus & Moses, Fred Trechel, Albuquerque, for appellant.\nAtwood & Malone, Roswell, Neal, Neumann & Neal, Carlsbad, for appellees." }, "file_name": "0270-01", "first_page_order": 302, "last_page_order": 307 }