« ZurückWeiter »
must be pertinent or material to the subject of inquiry in the particular litigation.
“In Lea v. White, 4 Sneed, 113, it was said, viz.: ‘The communications are, on account of the occasion on which they are made, prima facie, or, as the books have it, "conditionally privileged; that is, they do not amount to defamation (actionable) until it appears that the communication had its origin in actual malice in fact." In such cases it will be incumbent on the plaintiff to show, in addition to the injurious publication, malice in fact, and that the occasion was seized upon as a mere pretext.' Illustrations of this class of communications are statements in respect of the character of servants, official communications, reports of judicial proceedings, etc. ‘But,' continues the court, 'there is another class of cases which are absolutely privileged and depend in no respect for their protection upon their bona fides. The occasion is an absolute privilege; and the only questions are whether the occasion existed, and whether the matter complainel of was pertinent to the occasion. In this class are embraced judicial proceedings. The proceedings connected with the judicature of the country are so important to the public good, the law holds that nothing which may therein be said with probable cause, whether with or without malice, can be slander, and in like manner that nothing written with probable cause under the sanction of such an occasion can be a libel. The pertinency of the mat. ter to the occasion is that which is meant by probable cause, and probable cause is, in this class of absolutely privileged communications, what bona fides is to the class of conditionally privileged communications, which are protected unless there is malice in fact.'
“It will be observed that the cardinal inquiry is whether the alleged defamatory matter is pertinent to the issue involved. As said by this court in Shadden v. McElwee, 86 Tenn. 152, 6 Am. St. Rep. 821, 5 S. W. 604, 'where the matter alleged is pertinent to the issue, or fairly supposed to be so, although not in the strictest seuse relevant, the pleader is absolutely privileged, although he may have entertained sentiments of malice to the adverse party.' It is, moreover, the rule that the question of pertinency or relevancy is a question of law for the court: Lea v. White, 4 Sneed, ill; Shadden 5. McElwee, 86 Tenn. 152, 6 Am. St. Rep. 821, 5 . W. 602; Jones V. Brownlee, 161 Mo. 258, 61 S. W. 795.
“It cannot be seriously controverted that the allegations of the bill in the United States circuit court with respect to the disquali. fications of the plaintiff as an elector in the election of August 8, 1901, were pertinent and relevant to the matter of inquiry in that suit. The legality of the action was challenged in that proceeding upon the ground that the municipal aid subscription had not been carried by a three-fourths majority of the voters, as required by law. It was necessary that the bill should specifically recite the names of
the disqualified voters, in order that an issue might be made in respect to their qualifications: Moore v. Sharp, 98 Tenn. 493, 41 S. W. 587; Blackburn v. Vick, 2 Heisk. 383.
“The name of the plaintiff was included in a list of about fifty citizens of the twentieth ward, who were alleged to have been disqualified to vote in said election on account of failure to re-register after changing their residence in said ward twenty days before the election. The matter alleged being pertinent to the issue, it was absolutely privileged, and it is wholly immaterial whether the element of malice entered into the charge. As said in Lea v. White, 4 Sneed, 111: 'It certainly cannot be maintained that, because person is malicious in his statements toward the adverse party, he will not be permitted to set up in his defense any matter that he may reasonably suppose would be available.'
"It is alleged in the declaration there was no probable cause, or that defendant could not have reasonably supposed it necessary in his case to have alleged the libelous matter. It is said the demurrer admits this allegation. It is well settled that 'a demurrer does not admit inferences from facts, nor conclusions of law averred': 6 Ency. of Pl. & Pr. 336; Park v. Kelly Axe Co., 1 C. C. A. 395, 49 Fed. 618; Kent v. Lake Superior Ship Canal Co., 144 U. S. 75, 12 Sup. Ct. Rep. 650; Foster's Federal Practice, sec. 106; Hopper v. Town of Covington, 118 U. 8. 148, 151, 6 Sup. Ct. Rep. 1025; Greeff v. Equitable Life etc. Soc., 160 N. Y. 19, 73 Am. St. Rep. 659, 54 N. E. 712.
"Averments in a declaration as to the meaning and interpretation of a writing attached thereto, or exhibited, are not admitted by a demurrer': National Park Bank v. Halle, 30 Ill. App. 17; 6 Ency. of Pl. & Pr. 337, 397; Foster's Federal Practice, sec. 106.
“'Neither does a demurrer admit matters averred in the declaration contrary to law': Louisville etc. R. R. Co. v. Palmes, 109 U, 8. 244, 3 Sup. Ct. Rep. 193; 6 Ency. of Pl. & Pr. 338, 398; Foster's Federal Practice, sec. 106; Hooper v. Town of Covington, 118 U. S. 148, 151, 6 Sup. Ct. Rep. 1025.
“As already seen, the pertinency of the matter to the occasion is that which is meant by probable cause. The pertinency of the matter to the issue presented is a matter for the court, and the demurrer does not admit the want of probable cause, or any other conclusion of law which must be drawn by the court. We think, as matter of law, the alleged defamatory matter was absolutely and unqualifiedly privileged.
“But is in on behalf of plaintiff in error that the present case falls within an exception to the general rule whch was recognized and established by this court in Ruohs v. Backer, 6 Heisk. 395, 19 Am. Rep. 598. In that case it was held that the rule as to parties does not apply to strangers to the record, and such statements, although pertinent, are only conditionally privileged. The
Am. St. Rep., Vol. 97-53
facts of that case were that Ruohs, as next friend of two young girls, filed a petition in the county court of Hamilton county, in which ho asked the removal of their guardian upon the ground alleged that 'the guardian has had in his family a girl who is now probably over sixteen years of age, who came to live with him about the age of thir. teen years, and has remained in his family ever since. Her reputa. tion is ruined, and she is now an example of shame and prostitution.' The court said, viz: ‘Having the undoubted right to present the peti. tion, the question recurs, Was the reason assigned by the plaintiff in error to the county court for the removal of the guardian such a rea. son as he might lawfully assign, and his petition a privileged com. munication within the meaning of the law!
“Although there are authorities which would, perhaps, sustain the petition to the county court as falling within the definition of absolutely privileged communications, this court is of opinion that a distinction should be taken between statements made in the course of judicial proceedings relative to the parties thereto and those which relate to strangers to the record, and that the protection of private character, as well as the peace of society, require that imputations against persons having no connection with the judicial proceeding should, even when properly relating to such proceeding, be considered as falling within the class of conditionally privileged communications.'
"The case of Ruohs v. Backer, 6 Heisk. 395, 19 Am. Rep. 598, was decided in 1871 in an opinion delivered by Judge Nelson. It has not been reaffirmed, as erroneously stated by counsel, nor has it been distinctly overruled. In the recent opinion of this court in the case of Cooley v. Galyon (pricipal case), 109 Tenn. 1, ante, p. 823, 70 s. W. 607, a rule antagonistic to that laid down in Ruohs v. Backer, ó Heisk, 395, 19 Am. Rep. 598, was announced. It was held in that case that slanderous words spoken by a witness in a judicial proceeding, which are relevant and pertinent to the subject of inquiry or responsive to questions, are absolutely privileged. The court said, viz.: 'It is immaterial that neither the plaintiff nor defendant were parties to the cause in which the defendant was called to testify. The majority of witnesses are not parties to the cause in which they are examined, and facts in relation to other strangers to the litigation often become the subject of necessary inquiry.
" 'If the privilege was confined to the parties, it would be reduced to narrow limits, and the proper administration of justice would be greatly embarrassed and made difficult.'
“ It was held in Henderson v. Broomhead, 4 Hurl. & N. (Eng. Ex.) 569, that no action lies against a party who in the course of a cause makes an affidavit which is scandalous, false and malicious, thougte the person scandalized and who complains is not a party to the cause.
“This question was under consideration in the recent case of Jones v. Brownlee, 161 Mo. 258, 61 S. W. 795, a case from Missouri, in
which the court said, viz.: 'With the exception of Ruohs v. Backer, 6 Heisk, 395, 19 Am. Rep. 598, we have not been able to find any case, either in England or the United States, which holds that an abso. lutely privileged communication made in a pleading in a cause ceases to be such when written or spoken as to one not a party to the suit. We think such a distinction cannot be made without disregarding the public policy upon which the whole rule depends. There are so many cases in which the rights and character of persons who are not par. ties to the suit become collaterally the subject of inquiry, and the right to make such inquiry so unquestionable, that no good reason for making the exception can be given so long as the rule itself is maintained.' Again, in the case of Johnson v. Brown, 13 W. Va. 136, the court wrote as follows: "The English and American courts, as will be seen by reference to many of the authorities before cited, in laying down the rule which is to determine whether libelous matter appearing in the conduct or proceedings of a cause is or is not to be considered as absolutely privileged, appears to assume that it in no manner depends upon whether it relates to or was uttered about a stranger to the suit or otherwise.
" "While in many cases, as we have seen, qualifications are added in stating the rule which exempts from libel or slander suits utterances in the prosecution regularly of a suit, yet the qualification that they must not be uttered in reference to a stranger to the suit is never added. There is, nevertheless, one American case that decides that if a libelous statement, made in the course of judicial proceedings, is made in regard to a third person, such statement is not an absolutely privileged publication, but is only conditionally privileged, and is actionable if made with malice, without probable cause, and under such circumstances as would not reasonably create the belief that they were true'-citing Ruohs v. Backer, 6 Heisk. 395, 19 Am. Rep. 598.
“Judge Nelson, in his opinion, states, viz.: 'If a guardian may be removed because his domestic associations are such as tend to the corruption and contamination of his ward, upon what principle is it that the person seeking his removal may not even name his associates and cause their character to be inquired into There many cases in which the rights and character of persons who are not parties to the suit become collaterally the subject of inquiry; and the right in this case,' continues Judge Nelson, ‘is unquestionable.'
“If, then, the right to make the inquiry is material and perti. nent, why should not the rule of exemption from liability, grounded on reasons of public policy, which favors a free and untrammeled investigation in courts of judicature, not apply when the allegation is made concerning a stranger, as if made against a party to the recordThe exception undertaken to be made destroys the rule and defeats the objects of public policy upon which it was founded. It is not supported by any authority, but is contrary to the rule an. nounced in all the cases, and should not be adhered to as a precedent.
“The fact that cases of hardship may arise, and persons who have been defamed in the course of judicial proceedings may be left remediless, is no reason why a wholesome legal principle, founded upon reasons of public policy, should be overthrown, A multitude of in. stances might be cited where the rights of the individual are re quired to be sacrificed for the public good.”
Privileged Communications, within the meaning of the law of libel and slander, are defined in Trebby v. Transcript Pub. Co., 74 Minn. 84, 73 Am. St. Rep. 330, 76 N. W. 961; Hebrer v. Great Northern Ry. Co., 78 Minn, 289, 79 Am. St. Rep. 387, 80 N. W. 1128. Communications made in the course of duty in judicial proceedings are privileged; the privilege extends to parties, counsel, witnesses, jurors, and judges: Gardemal v. McWilliams, 43 La. Ann. 454, 26 Am. St. Rep. 195, 9 South. 106; Gore v. Condon, 87 Md. 368, 67 Am. St. Rep. 352, 39 Atl. 1042; Metcalf v. Times Pub. Co., 20 R. I. 674, 78 Am. St. Rep. 900, 40 Atl. 864. Some authorities hold that an action will not lie against a witness for slanderous words uttered by him in giving testimony, though false, malicious, and not responsive to the question asked: Hunckle v. Voneiff, 69 Md. 179, 9 Am. St. Rep. 413, 14 Atl. 500, 17 Atl. 1056; other authorities hold that the statements of a witness or litigant, in order to be privileged, must be pertinent and material to the subject under investigation: Clemmons v. Danforth, 67 Vt. 617, 48 Am. St. Rep. 836, 32 Atl. 626; Shadden v. MeElwee, 86 Tenn. 146, 5 S. W. 602, 6 Am. St. Rep. 821, and note.
GORSUCH v. SWAN.
[109 Tenn. 36, 69 S. W. 1113.)
Webb, McClung & Baker, for Gorsuch.
36 BEARD, C. J. The intestate of the plaintiff in error, while riding in a buggy on one of the public roads of Knox county, 37 was fatally injured by a runaway team belonging to the defendant in error. This suit was brought by the administrator to recover damages upon the alleged ground that it was through the negligence of the defendant, the owner of the team, or of his servant, that this runaway occurred, and his intestate was injured. The trial resulted in a verdict for the defendant, and the plaintiff has appealed. The trial judge