conditional privilege in Alabama

1988In Webster v. Byrd , 494 So.2d 31 (Ala. 1986), we stated that "[w]hether a communication is privileged by reason of its character or the occasion on which it was made is a question of law for the judge." The test for determining whether a conditional privilege exists is as follows: " ' " 'Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged, if made in good faith and w

1986The test in this jurisdiction for determining whether a conditional privilege exists is as follows: "`"Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged, if made in good faith and without actual malice. * * * The duty under which the party is privileged to make the communication need not be one having the force of legal obligation, but it is sufficient if it is soci

1987This Court discussed the scope of the conditional privilege in Fulton v. Advertiser Co. , 388 So.2d 533 , 537 (Ala. 1980): "'"Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged, if made in good faith and without actual malice. * * * The duty under which the party is privileged to make the communication need not be one having the force of legal obligation, but it is s

1987In that case we approved the trial court's apparent finding that a conditional privilege attached to a store employee's report of a shoplifting suspect under the principles established for such a privilege in Fulton v. Advertiser Co. , 388 So.2d 533 (Ala. 1980), cert. denied , 449 U.S. 1125 , 101 S.Ct. 942 , 67 L.Ed.2d 111 and 449 U.S. 1131 , 101 S.Ct. 954 , 67 L.Ed.2d 119 (1981).

2001In Webster v. Byrd , 494 So.2d 31 (Ala. 1986), our Supreme Court stated that "[w]hether a communication is privileged by reason of its character or the occasion on which it was made is a question of law for the judge." The test for determining whether a conditional privilege exists is as follows: "`Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged, if made in good f

1988In Webster v. Byrd , 494 So.2d 31 (Ala. 1986), we stated that "[w]hether a communication is privileged by reason of its character or the occasion on which it was made is a question of law for the judge." The test for determining whether a conditional privilege exists is as follows: " ' " 'Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged, if made in good faith and w

1989Nelson, supra; Webster, supra; Willis, supra; Fulton v. Advertiser Co. , 388 So.2d 533 (Ala. 1980), cert. denied, 449 U.S. 1131 , 101 S.Ct. 954 , 67 L.Ed.2d 119 (1981); and O'Barr v. Feist , 292 Ala. 440 , 296 So.2d 152 (1974).

1987In that case we approved the trial court's apparent finding that a conditional privilege attached to a store employee's report of a shoplifting suspect under the principles established for such a privilege in Fulton v. Advertiser Co. , 388 So.2d 533 (Ala. 1980), cert. denied , 449 U.S. 1125 , 101 S.Ct. 942 , 67 L.Ed.2d 111 and 449 U.S. 1131 , 101 S.Ct. 954 , 67 L.Ed.2d 119 (1981).

1989Nelson, supra; Webster, supra; Willis, supra; Fulton v. Advertiser Co. , 388 So.2d 533 (Ala. 1980), cert. denied, 449 U.S. 1131 , 101 S.Ct. 954 , 67 L.Ed.2d 119 (1981); and O'Barr v. Feist , 292 Ala. 440 , 296 So.2d 152 (1974).

1987In that case we approved the trial court's apparent finding that a conditional privilege attached to a store employee's report of a shoplifting suspect under the principles established for such a privilege in Fulton v. Advertiser Co. , 388 So.2d 533 (Ala. 1980), cert. denied , 449 U.S. 1125 , 101 S.Ct. 942 , 67 L.Ed.2d 111 and 449 U.S. 1131 , 101 S.Ct. 954 , 67 L.Ed.2d 119 (1981).

1989Nelson, supra; Webster, supra; Willis, supra; Fulton v. Advertiser Co. , 388 So.2d 533 (Ala. 1980), cert. denied, 449 U.S. 1131 , 101 S.Ct. 954 , 67 L.Ed.2d 119 (1981); and O'Barr v. Feist , 292 Ala. 440 , 296 So.2d 152 (1974).

1987In that case we approved the trial court's apparent finding that a conditional privilege attached to a store employee's report of a shoplifting suspect under the principles established for such a privilege in Fulton v. Advertiser Co. , 388 So.2d 533 (Ala. 1980), cert. denied , 449 U.S. 1125 , 101 S.Ct. 942 , 67 L.Ed.2d 111 and 449 U.S. 1131 , 101 S.Ct. 954 , 67 L.Ed.2d 119 (1981).

2001If the declarants are deemed to possess a conditional privilege, the privilege is lost only if the privileged declarant "makes the communication in bad faith and with actual malice." Nelson , 534 So.2d at 1095 .

2001The plaintiff carries the burden of proving common law actual malice by presenting "`evidence of "previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like . . . or . . . violence of the defendant's language, [and] the mode and extent of publication, and the like." Kenney v. Gurley , 208 Ala. 623 , 626 , 95 So. 34 , 37 (1923).'" Nelson v. Lapeyrouse Grain Corporation , 534 So.2d at 1095 .

1986Gardner v. Hollifield , 97 Idaho 607 , 549 P.2d 266 (1976); Elder v. Holland , 208 Va. 15 , 155 S.E.2d 369 (1967).

1986Gardner v. Hollifield , 97 Idaho 607 , 549 P.2d 266 (1976); Elder v. Holland , 208 Va. 15 , 155 S.E.2d 369 (1967).

1986Gardner v. Hollifield , 97 Idaho 607 , 549 P.2d 266 (1976); Elder v. Holland , 208 Va. 15 , 155 S.E.2d 369 (1967).

1986Gardner v. Hollifield , 97 Idaho 607 , 549 P.2d 266 (1976); Elder v. Holland , 208 Va. 15 , 155 S.E.2d 369 (1967).

2004As this Court recognized in City of Birmingham v. Sutherland , 834 So.2d 755 (Ala. 2002): "Our review of the grant or denial of a motion for a judgment as a matter of law is governed by the following standard: "`"The standard of review applicable to a motion for directed verdict or judgment notwithstanding the verdict [now referred to as preverdict and postverdict motions for a judgment as a matter of law] is identical to the standard used by the trial court in granting or denying the motions initially.

2003"Whether a statement is protected by a conditional privilege is a question of law for the court." Reynolds Metals Co. v. Mays , 547 So.2d 518 , 524 (Ala. 1989). 25 Ayres claims that her alleged publications of the petition, her discussions of the matter with numerous individuals, and her communications with news reporters were all prompted by a duty, as a city-council member, to the citizens of the Town of Argo to inform them of what Ayres believed to be Mayor Jennings's illegal activities and to prompt an investigation concerning the dismissal of various speeding tickets in the Town of Argo.

2001The plaintiff carries the burden of proving common law actual malice by presenting "`evidence of "previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like . . . or . . . violence of the defendant's language, [and] the mode and extent of publication, and the like." Kenney v. Gurley , 208 Ala. 623 , 626 , 95 So. 34 , 37 (1923).'" Nelson v. Lapeyrouse Grain Corporation , 534 So.2d at 1095 .

2001The plaintiff carries the burden of proving common law actual malice by presenting "`evidence of "previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like . . . or . . . violence of the defendant's language, [and] the mode and extent of publication, and the like." Kenney v. Gurley , 208 Ala. 623 , 626 , 95 So. 34 , 37 (1923).'" Nelson v. Lapeyrouse Grain Corporation , 534 So.2d at 1095 .

1995Cantrell v. North River Homes, Inc. , 628 So.2d 551 (Ala. 1993).

1995Cantrell v. North River Homes, Inc., 628 So.2d 551 (Ala.1993).

1991In Gore , this Court held that any publication made between a previous employer and a prospective employer is protected by a conditional privilege, pursuant to the following test: " ' "Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged, if made in good faith and without actual malice. * * * The duty under which the party is privileged to make the communication need n

1990Co. , 210 Ala. 369 , 371 , 98 So. 290 , 292 (1923)." Kirby v. Williamson Oil Co. , 510 So.2d 176 , 179 (Ala. 1987).

1989Nelson, supra; Webster, supra; Willis, supra; Fulton v. Advertiser Co. , 388 So.2d 533 (Ala. 1980), cert. denied, 449 U.S. 1131 , 101 S.Ct. 954 , 67 L.Ed.2d 119 (1981); and O'Barr v. Feist , 292 Ala. 440 , 296 So.2d 152 (1974).

1989Nelson, supra; Webster, supra; Willis, supra; Fulton v. Advertiser Co. , 388 So.2d 533 (Ala. 1980), cert. denied, 449 U.S. 1131 , 101 S.Ct. 954 , 67 L.Ed.2d 119 (1981); and O'Barr v. Feist , 292 Ala. 440 , 296 So.2d 152 (1974).

1988In Montgomery v. Big B, Inc. , 460 So.2d 1286 (Ala. 1984), the Court found that an allegedly defamatory communication made by corporate employees to a polygraph test operator concerning the plaintiff's alleged complicity in a misappropriation of corporate funds fell within this definition.

1987The plaintiff does not challenge the general proposition that a store employee has a conditional privilege to report a shoplifting *Page 906 suspect to the appropriate third parties, and any doubt regarding this issue has been resolved by the recent case of Tidwell v. Winn-Dixie, Inc. , 502 So.2d 747 (Ala. 1987).

1987In that case we approved the trial court's apparent finding that a conditional privilege attached to a store employee's report of a shoplifting suspect under the principles established for such a privilege in Fulton v. Advertiser Co. , 388 So.2d 533 (Ala. 1980), cert. denied , 449 U.S. 1125 , 101 S.Ct. 942 , 67 L.Ed.2d 111 and 449 U.S. 1131 , 101 S.Ct. 954 , 67 L.Ed.2d 119 (1981).

1987In that case we approved the trial court's apparent finding that a conditional privilege attached to a store employee's report of a shoplifting suspect under the principles established for such a privilege in Fulton v. Advertiser Co. , 388 So.2d 533 (Ala. 1980), cert. denied , 449 U.S. 1125 , 101 S.Ct. 942 , 67 L.Ed.2d 111 and 449 U.S. 1131 , 101 S.Ct. 954 , 67 L.Ed.2d 119 (1981).

1987In that case we approved the trial court's apparent finding that a conditional privilege attached to a store employee's report of a shoplifting suspect under the principles established for such a privilege in Fulton v. Advertiser Co. , 388 So.2d 533 (Ala. 1980), cert. denied , 449 U.S. 1125 , 101 S.Ct. 942 , 67 L.Ed.2d 111 and 449 U.S. 1131 , 101 S.Ct. 954 , 67 L.Ed.2d 119 (1981).

1987In that case we approved the trial court's apparent finding that a conditional privilege attached to a store employee's report of a shoplifting suspect under the principles established for such a privilege in Fulton v. Advertiser Co. , 388 So.2d 533 (Ala. 1980), cert. denied , 449 U.S. 1125 , 101 S.Ct. 942 , 67 L.Ed.2d 111 and 449 U.S. 1131 , 101 S.Ct. 954 , 67 L.Ed.2d 119 (1981).

1987In that case we approved the trial court's apparent finding that a conditional privilege attached to a store employee's report of a shoplifting suspect under the principles established for such a privilege in Fulton v. Advertiser Co. , 388 So.2d 533 (Ala. 1980), cert. denied , 449 U.S. 1125 , 101 S.Ct. 942 , 67 L.Ed.2d 111 and 449 U.S. 1131 , 101 S.Ct. 954 , 67 L.Ed.2d 119 (1981).

1987In that case we approved the trial court's apparent finding that a conditional privilege attached to a store employee's report of a shoplifting suspect under the principles established for such a privilege in Fulton v. Advertiser Co. , 388 So.2d 533 (Ala. 1980), cert. denied , 449 U.S. 1125 , 101 S.Ct. 942 , 67 L.Ed.2d 111 and 449 U.S. 1131 , 101 S.Ct. 954 , 67 L.Ed.2d 119 (1981).

1983Pierson v. Ray , 386 U.S. 547 , 557 , 87 S.Ct. 1213 , 1219 , 18 L.Ed.2d 288 (1967).

1983Pierson v. Ray , 386 U.S. 547 , 557 , 87 S.Ct. 1213 , 1219 , 18 L.Ed.2d 288 (1967).

1968Merkle v. State, 37 Ala. 139 (from Reporter’s statement of the ease) : “ * * * The State afterwards read in evidence to the jury an extract from the ‘United States Dispensatory,’ by Wood & Burke, on the subject of vinous and fermented liquors; having first proved, by the testimony of a' practicing physician, ‘that said book was recognized by the medical profession as good authority on all subjects therein treated of; ’ * * * » .