ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA
White, McKenna, Holmes, Day, Lurton, Hughes, Van Devanter, Lamar, Pitney
MR. JUSTICE PITNEY delivered the opinion of the court.
This is a writ of error to review a judgment affirming a judgment of the Supreme Court of the District in favor of the defendants in an action for libel and conspiracy.
The declaration contains two counts, the first of which avers that the plaintiff was a teacher and a member of the body of teachers in the public schools of the District of Columbia, and that the defendants, without probable cause, but contriving and maliciously intending to injure plaintiff in her character and reputation as a school teacher, wrongfully and maliciously composed and published and filed in the Clerk's office of the Supreme Court of the District, as their answer in a legal proceeding wherein they and others composing the Board of Education were named as defendants, a certain false, scandalous and defamatory libel concerning the plaintiff in respect of her profession, the purport of which was that the defendants and others, composing the Board of Education, found upon examination that the plaintiff "was not sufficiently qualified in all respects to continue to teach" in the public schools, but was "deficient in the necessary academic and pedagogic equipment of a competent teacher," so that the Board of Education were unable lawfully to continue her in employment.
The second count recites that the plaintiff was and for more than thirty years had been earning her livelihood as a teacher and member of the body of teachers of the public schools of the District of Columbia, and the defendants and others constituted the Board of Education,
as provided for by the act of Congress approved June 20, 1906, 34 Stat. 316, c. 3446, by which it is, among other things, enacted that when a teacher is on trial or being investigated she shall have the right to be attended by counsel; that certain untrue charges concerning plaintiff's moral character and reputation were under investigation by the Board; that without notice to her, or an opportunity for a hearing the Board dismissed her from the rolls as a teacher, assigning as a reason that this was done for the good of the service; that feeling aggrieved and having failed to secure redress by a petition direct to the Board, plaintiff petitioned the Supreme Court of the District for a writ of mandamus to compel the Board to reinstate her; that the defendants, intending to wrong and injure her in her right to employment in the line of her occupation and calling, and specifically to prevent her from securing the writ of mandamus to reinstate her to her position and to the emoluments of her office as a member of the body of teachers of the public schools, entered into an unlawful agreement and conspiracy among themselves to ruin the plaintiff, and specifically to prevent her from obtaining her proper redress as prayed for in the mandamus proceedings, and to cause it to be believed by the public in general that she was deficient in the necessary academic and pedagogic equipment of a competent teacher, and thereby prevent her from securing employment as such; that in pursuance of the conspiracy the defendants maliciously composed and published, and filed in the Clerk's office of the Supreme Court of the District, a paper purporting to be their answer and the answer of other members of the Board of Education, which contained certain false and scandalous libel concerning the plaintiff in her profession as a school teacher (the alleged libelous matter being set forth and being of the same tenor and purport as that alleged in the first count), the defendants knowing at the time that the facts
alleged in the libel were false; all of which was done in pursuance of the alleged unlawful agreement and conspiracy; that thereby the plaintiff was prevented from securing a fair and impartial hearing in the mandamus proceedings, was prevented from being reinstated to her office as a member of the body of teachers of the public schools and receiving the emoluments thereof, and has been greatly injured in her good name and character, etc.
To the first count, defendants interposed a demurrer, upon the ground that the alleged libelous matter was privileged. The demurrer was sustained.
To the second count, defendants filed two pleas. Of these, the first sets up the proceedings and judgment in the Supreme Court in the case of The United States of America ex rel. Mary E. Nalle, Relator, v. George W. Baird and others, Respondents,*fn1 on plaintiff's petition for a writ of mandamus to restore her to the rolls as a teacher (being the same proceeding in which the alleged libelous matter was filed as the answer of the Board of Education), and avers that afterwards, by the consideration and judgment of the court, and upon an issue necessarily involved in the cause and litigated therein between the parties, and identical with the causes of action herein given, it was ordered that the writ of mandamus be and it was thereupon denied, as by the record appears, a copy of which is attached to the plea and made a part of it.
The second plea to the second count sets up the former adjudication in a different form, averring the facts more elaborately and including a special reference to the alleged libelous matter under circumstances such as to lay the foundation for a claim that it was privileged. This plea avers that at the time alleged in the second count of the declaration, and ...