Harrison v. Burger , 212 Ala. 670 ( 1925 )

Upon application for rehearing by counsel for appellant, it is insisted that the court has failed to definitely decide as to the sufficiency of count 1. We have held the count insufficient, and have cited several of the authorities relied upon by appellant, stating the conclusion deduced therefrom as to what is necessary to be alleged in actions of this character. Counsel has attached much importance to statements in some of authorities to the effect that such an action may not, strictly speaking, be properly classed as a libel action; but, as said by the court in Craig v. Procter, 229 Mass. 339,118 N.E. 647, "this is of no importance," and in Morasse v. Brochu, supra, "the name of the action is of no consequence." The cases do not differ in this essential element, and are, in substance and effect, libel actions, broadly speaking, within the definition of Cooley on Torts, supra. We do not find any of the cases cited supporting the insistence of the sufficiency of count 1, charging only simple negligence.

In brief, upon this application counsel state that the only case in point was the English authority found in the original brief for appellant. This was the case of Ratcliffe v. Evans, L. J. 1892, 61 Q. B. 535, but that action was denominated an action of libel by the plaintiff, and alleged that the "defendant had falsely and maliciously printed and published of him in relation to his business" the matters therein set out. It is noted in the quoted language that the matter complained of was alleged to have been falsely and maliciously published, and this should suffice, without further discussion of that authority to demonstrate it is not at all a case in point as to the sufficiency of count 1. This count therefore appears unsupported by any authority cited by counsel, or which has otherwise come to our attention.

We were of the opinion the original consideration of this cause had with sufficient definiteness disposed of count 1. The authorities were cited, and our conclusion deduced therefrom. The foregoing comments constitute but an elaboration of what was originally stated and decided, and as a response to the application for reconsideration in deference to the earnest insistence of counsel.

Application for rehearing denied.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.