Bowling v. Pow

301 So. 2d 55, 293 Ala. 178
CourtSupreme Court of Alabama
DecidedSeptember 19, 1974
DocketSC 679
StatusPublished
Cited by24 cases

This text of 301 So. 2d 55 (Bowling v. Pow) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowling v. Pow, 301 So. 2d 55, 293 Ala. 178 (Ala. 1974).

Opinions

LEIGH CLARK, Supernumerary Circuit Judge.

This litigation is between two eminent former professors of English at the University of Alabama. This is an appeal by plaintiff from a judgment of the trial court dismissing the action.

The crucial issue is whether the trial court was in error in dismissing the action on the ground that the complaint does not state a claim upon which relief can be granted, the only ground asserted in the motion to dismiss.

The original complaint and the amended complaint are unnecessarily lengthy and contain many averments that do not constitute appropriate pleading, much of which is in the nature of an effort to plead the evidence. We summarize the gravamen by stating that it is alleged that defendant “falsely and maliciously and in bad faith” published of and concerning the plaintiff a letter dated June 20, 1972, containing defamatory statements intended to defame and injure plaintiff. The letter is set out in the complaint and is shown by the complaint to have been an answer to a letter from plaintiff to defendant of June 5, 1972, which is also quoted in full in the complaint. We set forth first the letter of June 5 as follows:

“P. O. Box 3001
UNIVERSITY OF ALABAMA
UNIVERSITY, ALABAMA 35486 “COLLEGE OF ARTS AND SCIENCES June 5, 1972
DEPARTMENT OF ENGLISH
CERTIFIED AIR MAIL
Dr. Alex S. Pow, President
Western Carolina University
Cullowhee, North Carolina 28723

Dear Dr. Pow:

It was good to talk with you during my recent visit to your home, even though the conditions were adverse for each of us. I hope and pray that your condition has improved. Mine has become worse. Dean Jones and President Mathews are pushing ahead with the hearing, which is scheduled to resume on June 12.

If your health will permit, I should like you to write me a letter stating the basic points of your remarks during our conversation. These included the following :

1. The ‘departmental diary’ filed against me by Dr. McMillan was originally submitted to you and President Rose and Vice President Bennett in 1967.

2. It was given full consideration by you and other University administrative officials at that time.

3. It was dismissed as being insufficient ground for filing of termination charges against me. You felt that the charges made against me by Dr. McMillan were irrelevant and immaterial to my competence and performance as a teacher and scholar.

4. Instead of trying to dismiss me on these charges by Dr. McMillan, the Uni[181]*181versity administration began considering the recruitment of a replacement for Dr. McMillan as chairman of the Department of English. But you and President Rose and Dr. Bennett left the University before a replacement was found.

If you think of other points which may be of help to me in this matter, I shall be grateful for them also.

If you can write such a letter and, if convenient, have it notarized, it may suffice, without your having to make a trip to Tuscaloosa to testify. Address it to Mrs. Annabel D. Hagood, Chairman, Faculty Hearing Committee. I should like to have a copy.

Very sincerely yours,
Lawrence E. Bowling
Professor of English”

The letter of June 20, which contains the alleged defamatory matter, is as follows:

“90 Brookhaven
Tuscaloosa, Alabama 35401
June 20, 1972
“Dr. Lawrence E. Bowling
P. O. Box 3001
University, Alabama 35486
Dear Dr. Bowling:
I have recently received your letter of June 5, forwarded to me from Cullowhee, North Carolina; and I have studied this letter, as well as your similar request made to me personally at the above address and your telephone message directed to me through Mrs. Pow. I have important misgivings about doing what you have asked. First, I believe what you set out in your outline of a letter from me to the committee of inquiry does not parallel my remarks to you in Cullowhee, and, also, would not be accurate. Second, I am by no means sure that my following your request would be helpful to you before the committee.
I have told both you and President David Mathews that I should be pleased either to appear before the committee or to respond in writing to specific committee questions. Such procedure, it seems to me, would be infinitely more helpful to all parties than my merely signing, in effect, a communication which you have dictated for me. As yet, I have received no such request from the committee; but, you will notice, along the lines of your suggestion, I am sending a copy of this communication and your letter of June 5 to Professor Annabel Hagood (also copies to Professor Willard Gray, for I shall refer to him below). Mrs. Hagood may do with them what she wishes.
Because I have not seen the particular diary of which you speak in your letter, I am unable to determine whether it is the same Department of English record which I examined in 1967-68. I could determine this easily if the committee were to furnish me a copy of the record before it and if I could discuss this record with Professor Willard Gray. Even if the record is only one, and the one which I have read, I am not sufficiently versed in law to determine whether or not my past consideration of it and the present committee inquiry would have the effect of placing you ‘twice in jeopardy.’ Indeed, it seems to me that a case could be made that the decision of the University administration before not to file charges based on the departmental record constitutes the present inquiry as placing you in ‘jeopardy’ for the first time.
As I stated to you during your recent visit to this address, I believe I have never said to you, before Professor Gray or otherwise, that the University administration was considering the replacement of Professor McMillan at the time it was considering the departmental record referenced above. In any event, it seems to me that the plans and activities of the College of Arts and Sciences in this regard could be determined better through inquiry to either Dr. Frederick W. Conner and Dr. Raymond F. McLain, who, then, I believe held the position of Dean, College of Arts and Sciences.
[182]*182I do not know whether the Department of English diary was ‘insufficient grounds for filing termination charges/ ‘irrelevant and immaterial to your performance and competence/ I can make only the simple statement that the University administration elected not to file charges on the basis of whatever record was before it. On the other hand, the University administration did recommend to you concerning what it considered best for you and the University. You decided not to follow this advice. I shall be pleased to elaborate before the committee if that is the committee’s wish. With the hope that your health continues to improve and the thope

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Bluebook (online)
301 So. 2d 55, 293 Ala. 178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowling-v-pow-ala-1974.