BREWER v. SECOND BAPTIST CHURCH OF LOS ANGELES (1948)

From a judgment in favor of plaintiffs after trial before a jury in an action to recover damages for the publication of alleged libelous statements, defendants Henderson, Hilton and Hudson appeal.

Facts Disclosed by the Record

On July 16, 1945, Reverend William A. Venerable and plaintiffs herein filed an action in equity to void certain elections conducted by the Second Baptist Church of Los Angeles, et al. A demurrer was sustained to the complaint and thereafter the action was dismissed by Mr. R. C. W. Friday who appeared as attorney for plaintiffs in the action.^*

Early in October, 1945, there was a meeting of the deacons of the Second Baptist Church of Los Angeles, at which was discussed the question of taking proceedings to oust plaintiffs herein from the church. Defendant Hilton, who was chairman of the board, defendant Hudson, who was secretary, and defendant Henderson, pastor of the church approved of the following letter dated October 6, 1945, which was mailed to plaintiff Brewer:

‘Dear Sir: This is to inform you that at a regular meeting of Deacon Board of Second Baptist Church it was unanimously agreed to summon you to appear before the regularly church quarterly conference on Friday, October 12, 1945, where charges will be filed against you. Said charges have to do with your recent attempt, aided by others, to bring our church into court. Your complaints were so utterly false that the Judge would not permit the matter to come to trial. You have done the officers, minister, and entire church a serious injury which you can never correct and for which you are responsible. Disciplinary action by the church will be recommended. If you wish, you may make any statement you desire to the church, but whether present or absent the matter will come before the church. By order of Board of Deacons, John H. Hilton, Chairman, R. A. Hudson, Secretary.’

Two yellow sheets accompanied the letter which read thus:

‘October 12, 1945. To the membership of the Second Baptist Church, Los Angeles, California, we, the Deacon Board of the above church, at our regularly monthly meeting took under serious consideration the recent attempt on the part of two members of our church, aided by a third, recently dismissed from the church, to bring our church into court. One of these men was the Reverend W. A. Venerable, who because of a recent vile attack upon the deacons and minister, was dismissed from our fellowship. The other was Reverend A. L. Brewer, a noncontributing member, and the other was Mr. Eugene Fisher, former trustee, who was put out of office because of his vile spirit and utter disregard for leadership. We can bring no action against the Reverend Venerable, who, under the role of a minister of Jesus, is one of Satan's choicest tools, because he is not a member of our church. If the case had gone to trial this fact would have been brought to light. We do hold the other two, Brewer and Fisher, responsible and do charge them before the church as follows: We charge that they both complained to the civil authorities that our elections of 1942 of both deacons and trustees when we enlarged our board were illegal. The Judge ruled their complaint false and would not permit trial.

‘We charge that they complained that the officers of the church were planning to withdraw church funds from the Liberty Savings Loan Company and the Security-First National Bank and misuse them, and that the Judge ruled their complaint false.

‘We charge that they amended their complaint to the effect that in our business meetings we failed to send written notice to each and every member. The Judge ruled that they were again in error, due to the fact that the church has a constitution, which provides, not for a written notice but for the notice of said meetings ‘twice on Sunday, morning and evening prior to said meeting’ Article 13, Section C.

‘We charge that they both in reality admitted their own error by reason of the fact that they could not find another ground on which to amend their complaint. On the other hand, through their lawyer, they offered not to even try to amend their complaint if we, the Second Baptist Church, would allow them to drop the matter, and we, the church, pay $175.00 court costs which they would have to pay if they lost. We refused to let them drop the case.

‘We charge that on September 20th, when they had their final opportunity to attempt to amend their complaint and try to get us into court trial, not one of the complainants appeared in court. This was an open acknowledgment of failure and a clear vindication of the correctness with which the business affairs of the Second Baptist Church are conducted. In consequence of their failure, the attempted effort to embarrass the officers, minister and the church was automatically dropped, and the Judge signed the order compelling them to pay to the court the $175.00 which had already been paid by our church. The money will be refunded to the Second Baptist Church by the complaining parties.

‘We further charge that the action of both of these men in attempting to bring us before the civil authorities on grounds of proven falsity has hurt the prestige and the good name of the church, its officers, and minister, because of the widespread newspaper publicity given to it.

‘We charge that this attempt to bring the church into court has caused us to spend considerable and unnecessary funds of the church for attorneys' fees which we might have used for our church work.

‘We finally charge that both of these men have by their unwarranted actions and downright falsehood revealed themselves as totally unworthy of the continued confidence, respect and fellowship of a great church which they have so grieviously wronged.

‘We do therefore unanimously recommend that the hand of fellowship be withdrawn from them and they both be excluded from the church.

‘The Deacon Board of Second Baptist Church, John H. Hilton, Chairman, R. A. Hudson, Secretary.’

A similar set of documents was addressed and sent to defendant Fisher. Thereafter on October 12, 1945, a business meeting was held by the church and the aforementioned documents presented to the meeting. Plaintiffs did not appear at such meeting, and the ‘hand of fellowship’ was withdrawn from both plaintiffs and they were excluded from the church.

Subsequently there appeared in the National Baptist Voice an article giving an account of the expulsion of plaintiffs from the Second Baptist Church of Los Angeles. Defendants, did not report to the publication the action of the church in expelling plaintiffs. There was, however, placed in a local negro newspaper an account of the action of the board of deacons taken on October 12, 1945.

Question

Were defendants liable for the publication of the libelous matter contained in (1) the papers sent to plaintiffs, and (2) the account of plaintiffs' expulsion from the church published in the National Baptist Voice?

This question must be answered in the negative and is governed by these rules:

1. An action will not lie in the absence of malice for words actionable per se spoken between members of the same church during religious proceedings connected with the discipline of the church. (Sec. 47, subsection 3, Civil Code; Anderson v. Malm, 198 Ill.App. 58, 62; Landis v. Campbell, 79 Mo. 433, 440, 49 Am.Rep. 239. See also Snively v. Record Pub. Co., 185 Cal. 565, 574, 198 P. 1.)

2. An article appearing in a paper which is published for the circulation among members of a particular denomination is privileged in the absence of proof of actual malice. (Redgate v. Roush, et al., 61 Kan. 480, 59 P. 1050, 48 L.R.A. 236.)

3. Malice is not inferred from the fact of publication of a written communication which is conditionally privileged, but when the communication is shown to have been conditionally privileged the burden is cast upon plaintiff of proving malice. (Simmons v. Dickson, 110 Tex. 230, 232, 213 S.W. 612, 218 S.W. 365.)

Applying the foregoing rules to the facts of the present case it appears that the alleged defamatory statements upon which plaintiffs rely were statements contained in the documents mailed to plaintiffs and the article published in the National Baptist Voice. With respect to the documents mailed to plaintiffs the evidence discloses that plaintiffs were members of the Second Baptist Church of Los Angeles; that some time prior to October 12, 1945, at a meeting of the board of deacons of the church a discussion occurred relative to the taking of disciplinary action against plaintiffs by reason of the fact that they had prior thereto joined with Reverend Venerable in instituting an action against the church and certain members thereof, including the defendants in this case; that demurrers were sustained to the original and amended complaints; that plaintiffs in such action had failed to amend their amended complaint and the action had been dismissed. When the matter of disciplinary action against plaintiffs come up before the board of deacons, defendants Hilton and Hudson were authorized and directed by the board to prepare a statement against Messrs. Brewer and Fisher. Defendant Hilton, acting as chairman of the board, and defendant Hudson, acting in his capacity as secretary, under authority conferred upon them by the board, prepared and presented to the board the charges contained in the documents sent to plaintiffs Brewer and Fisher, who were notified to appear before the meeting of the board on October 12th to answer the charges. However, neither plaintiff saw fit to attend this meeting. The statements contained in the documents were accusations prepared by defendants in connection with church disciplinary action against plaintiffs.

The matter was exclusively a church affair, concerning plaintiffs' membership in the church and their right to continue as members thereof. The preparation and presentation of these exhibits to the board of deacons and the reading of them to the members assembled at the regular business meeting were exclusively in connection with disciplinary action then pending against plaintiffs before members of the church.

Therefore under rule 1, supra, such documents were privileged communications between the members of the church, and under rule 2, supra, the publication in the National Baptist Voice was likewise a privileged communication. Under rule 3, supra, since the publications were privileged, neither was actionable in the absence of evidence of malice on the part of defendants.

As an examination of the record fails to disclose any evidence which would sustain a finding of malice upon the part of defendants, or any of them, and plaintiffs in their brief by failing to direct our attention to any such evidence concede the lack thereof, the judgment predicated upon the alleged libelous publications must be reversed.

It is so ordered.

FOOTNOTES

FOOTNOTE.  The reason for the dismissal is stated by plaintiffs as follows:‘It appears that the Reverend Venerable's counsel, Mr. Friday, was having difficulty in preparing a pleading which was not vulnerable to demurrer, and recognizing that his counsel was not qualified, asked him to dismiss the case * * *, and the same was dismissed on September 11th * * *.’

McCOMB, Acting Presiding Justice.

WILSON, J., concurs. MOORE, P. J., deeming himself disqualified, did not participate in the foregoing opinion.