Lawson v. Hicks , 38 Ala. 279 ( 1862 )

A. J. WALKER, C. J.

Words, calumnious in their nature, may be deprived of their actionable quality by the occasion of their utterance or publication. When this is the case, they are called in the law of defamation privileged communications. These communications are either absolutely or conditionally privileged. When they are absolutély privileged, the-daw affords conclusive and indisputable immunity from suit. Whdn they are conditionally privileged, the law simply withdraws the legal inference of malice, and gives a protection upon the condition, that actual malice, or express malice, or malice in fact, (as the same idea is variously phrased,) is not shown. The distinction between the two classes is,that the protection of the former class is not at all dependent upon their bonafides ; while the latter is merely freed from the legal imputation of maliee, and become actionable only by virtue of the existence of express malice. — Cooke on Defamation, 28, 31, 60 ; Starkie on Slander, 229, 292. This latter class comprehends all those cases,where the author -of the alleged mischief acted in the discharge of any public or private duty, whether legal or moral, which the ordinary exigencies of society, or his own private interest, or even that of another, called upon him to perform.’’'’ — Starkie on Slander, 292; Cooke on Defamation, 31; Toogood v. Spyring, 1 Cr., M. & Ros. 181; Easly v. Moss, 9 Ala. 266; Stallings v. Newman, 26 Ala. 266.

To the catalogue of absolutely privileged communications belong all words spoken or written by the court, the parties, or the counsel, in the due course of judicial proceedings, which may be relevant. The relevancy, or pertinency, of the calumnious matter is indispensable to its perfect and absolute freedom from all actionable quality; and being relevant, it can give rise to no civil responsibility, no matter how great the malignity or malice from which it may have originated. Some obscure expressions may be found in the English Reports, from which ingenuity-might extort an argument, that Communications in the course of judicial proceedings were absolutely privileged,'.so far as a subsequent action might be concerned, without regard to their pertinency. As an example of such ex-pressions, we may instance the following remark of Lord-Mansfield: “There can be no scandal, if the allega--tion is material; and if it is not; tire court before whom the indignity is committed, byyimmaterial scandal, may order satisfaction, and expunge it cut of the record, if it' be upon record.” — Astley v. Young, 2 Burr. 807. See, also, the remarks of Chancellor Walworth upon severali cases, in Hastings v. Lusk, 22 Wend. 410. We apprehend,that the remark qiioted, if defensible at all in 'its full extent, -was-intended-merely -to suggest a large authority in the court before which the scandal wa's committed, and not to deny that irrelevant words, uttered with actual malice might become the basis of «¿subsequent action.

The law designs, Sn the adoption of the principle above" stated, to-relieve those participating in the proceedings of f courts of'-gustice from the-'restraint' which might result • from the apprehension oMawsuits. The accomplishment-!' of that object does-not require that 'the privilege of absolute exemption should be-extended further than'tó relevant ' communications. A further extension would license ma-~ lignity to -pervert -.ijudiciaFproceedings to the accomplish- - ment of its wicked purposes. The avoidance*'of such a consequence is scarcely less important than the guarding . of the unembarrassed freedom of judicial investigation.* Accordingly,-we find numerous and conclusive' authori- • ties, which, in the clearest manner; put the' qualifica-'tion, that only''-those communications, occurring in the*' course of judicial proceedings, are absolutely privileged,■> which ar-e relevant; — Brook v. Montague, 2 Cro. Jac. 90 ; Hodgson v. Scarlet 1 B. & Al. 232; Flint v. Pike, 4 B. & C. 473, 481 ; Mower v. Watson, 11 Verm. 536 ; Suydam v. Moffat, 1 Sandf. (S. C.) R. 459 ; Warner v. Paine, 2 Sandf. S. C. 195 ; Lea v. White, 4 Sneed, 111; Ring v. Wheeler, 7 Cow. 725; Gilbert v. People, 1 Denio, 41; Garr v. Selden, 4 Coms. 91; Fairman v. Ives, 5 B. & Ald. 642.

If the communications be irrelevant, they do not necessarily became actionable. They must be malicious, as well as irrelevant. Because they were uttered in the course of judicial proceedings, the law does not draw the inference of malice from their injurious character, but requires from the complaining party proof of actual malice. The line which separates relevancy from irrelevancy to a legal controversy, is often extremely shadowy and indistinct; and the position of the counsel or parties, conducting a cause, would be full of peril, if the imputation of legal malice was incurred whenever, from ignorance of law, or frailty of judgment, criminatory remarks of an irrelevant character might be made. The communications of counsel and parties, made in the due course of a judicial proceeding, are, therefore, not only absolutely privileged when relevant, but can not constitute a cause of action, although irrelevant, unless they are in fact malicious.

Malice is usually inferred by law from the defamatory matter itself; and, when so inferred, it is denominated legal malipe, in contra-distinction to malice in fact. Where this legal inference of malice is drawn, the absence of express malice is no justification, although it is to be considered in mitigation. — Cooke on Defamation, 28; Starkie on Slander, 213, 216, 456, m. p. 217, 218; Shelton v. Simmons, 12 Ala. 466 ; Curtis v. Massey, 6 Gray, 272. The inference of malice is not drawn as a matter of-law, when the words are spoken or written, by parties or counsel, in the due course of judicial proceedings, although they may be irrelevant; and the plaintiff is compelled to base'his recovery upon the existence of malice in fact. The question of malice becomes purely an inquiry for the jury; and they may consider the character and quality of the words, in determining the question of malice. The intrinsic effect of the words would argue to the jury the existence of express malice, with a force which would be increased by the obviousness of their irrelevancy, and the grossness of the calumny, and might be lessened hr .destroyed by the ignorance of the defendant, or other pertinent circumstances. The entire question of malice is an inquiry of fact, to be determined by the jury, upon all the evidence pertinent, in the light of their reason; and they must give to the intrinsic force of the words themselves such weight upon the point at issue as it may seem to them to merit, when considered in connection with the other evidence.

For the purpose of supporting and illustrating our views, as to the principles which must govern when irrelevant expressions are used in the course of judicial proceedings, we proceed to note the positions .of some legal authorities upon the subject. 'The words '“Relevancy or pertinency,” in this class of cases, seem to be sometimes used by English authors indiscriminately with the phrase “probable or reasonable cause”; and Cooke, in his most excellent work on Defamation, '(page 60,) says: “ The pertinency of the matter to the occasion is, it is submitted, that which is -meant by probable cause:” Starkie, in his work on Slander, (p. 286,) doubts Whether a recovery can be had against an advocate, for words spoken by him in a judicial controversy, an'd concludes that, at 'all events, such recovery can only be had in a special action, alleging express malice and the want of probable cause. — See, also, Cooke on Def. 62; 1 Amer. Leading Cases, 185; Fairman v. Ives, 5 B. & Al. 642; Hodgson v. Scarlet, 1 ib. 232. Holroyd, J., announcing his opinion in the case of Flint v. Pike, (4 B. & Cr. 481,) says: “ And if a counsel, in the course of a cause, utter observations injurious to individuals, and not relevant to the matter in issue, it seems to me that he would not therefore be responsible to the party injured, in a common action for slander, but that it would be necessary to sue him in a special action on the case ; in which it must be alleged in the declaration, and proved at the trial, that the matter was spoken maliciously, and without reasonable cause.” The learned judge furthermore assimilates such an action to a suit for malicious prosecution, in which it is necessary to aver want of probable cause and malice. — Long v. Rodgers, 19 Ala. 321; Ewing v. Sanford, 19 Ala. 605.

In the case of Mower v. Watson, (11 Verm. 536,) the court thus sums its conclusions on this subject from an elaborate examination of the authorities. “ It any one considers himself aggrieved, in order to sustain an action of slander, he must first show that the words spoken were not pertinent to the matter then in progress, and that they were spoken maliciously and with a view to defame Mm.” There are several decisions in the New York Reports to the same effect. Contenting ourselves with referring ¡to the rest, we extract from Suydam v. Moffatt, (1 Sandf. S. C. R. 459,) the following statement of the law in reference to irrelevant matter published in a judicial proceeding:; “Though the words in the declaration were not published on an occasion which forms an effectual shield to the defendant, whatever his motives may have been in using them; yet, in cases of this kind, the law does not impute malice to a party, from the mere fact ,of .his having published the words. The jury must be satisfied that there was actual malice on the part of the defendant, and that they were published for the mere purpose ¡.of defaming the plaintiff.”— Warner v. Paine, 2 Sandf. S. C. R. 195; Garr v. Selden, 4 Coms. 91; Ring v. Wheeler, 7 Cow. 725; Gilbert v. People, 1 Denio, 41; Hastings v. Lusk, supra; also, Lea v. White, 4 Sneed, 111.

We think it is also a correct proposition in law, 'that a party or his representative is not amenable to an action, where, although the matter stated was impertinent, he believed that it was relevant, and had reasonable or probable cause so to believe. Cooke, in his work on Defamation, (p, 62,) to which we have heretofore referred, says-; “It seems that the parties, or their representatives, are entitled to state anything, which, although not strictly relevant, may be fairly supposed by them to weigh with the court.” In the case of Lea v. White, (supra,) the matter alleged to be libellous consisted of a return to a writ of habeas corpus; and the court thus states the question, upon which the case turned, and the decision of the question : “ Could the defendant have reasonably supposed it necessary to his defense to return on the writ of habeas corpus the alleged libellous matter ? We think that he might have reasonably supposed that the statement would have exerted an influence on the mind of the court; and this being so, he had a right to introduce it, and rely upon it in his defense.” In Hastings v. Lusk and Suydam v. Moffat, (supra,) the position is distinctly taken, that if the defendant honestly supposed the declarations to have been relevant to the proceeding, he is shielded from action. Chief-Justice Tilgliman expressed the same idea, by saying that, “if a man should abuse his privilege, and designedly wander from the point in question, and maliciously heap slander upon his adversary, he would not say that he was not responsible in an action at law.” — McMillan v. Birch, 1 Bin. 178; Ring v. Wheeler, supra.

Lest the generality of the expressions quoted should mislead, we close our observations upon this point by remarking, that the defendant is not absolutely shielded by the single fact of his believiug the matter to be relevant; but, to entitle him to be thus shielded, there must be also reasonable or probable cause for so believing. In the absence of reasonable or probable cause, his belief of the relevancy would be a matter of tact to be weighed by the jury in determining the question of malice. The grossness or obviousness of the irrelevancy is a matter to be weighed by the jury, in detefmining the question of reasonable or probable cause, in like manner as in determining the question of malice. We deem it proper further to distinctly announce, as another result of our investigations, that words spoken in the course of judicial proceedings, although irrelevant, are not actionable, unless it affirmatively appears that they were malicious, and without reasonable or probable cause.

[2.] Guided by the principles which we have stated, we decide, that the plaintiff’s amended complaint would be good, and that the demurrer to it would be properly overruled, if it contained the averment of a want of reasonable or probable cause. It avers the .want of “justifiable cause or excuse.” This averment is not equivalent to that, which the law requires.

[3-4.] The defendant’s first special plea was also a valid defense to the action; but we would not reverse for the error of sustaining a demurrer to it, as the defense it sets forth was available under the general issue. — Hastings v. Lusk, supra; Suydam v. Moffat, supra; 1 Saunders on Pl. & Ev. 801; Starkie on Slander, 455; Cooke on Def. 107.

[5.] The defendant’s second special plea was bad. It proceeds upon the erroneous supposition, that the mere reading of cross-interrogatories and the answers to them in evidence is proof, in a subsequent cause between the same parties, that they were relevant. Whatever might be the ©feet of a decision that they were relevant, a legal conclusion of relevancy cannot he drawn from the mere fact of reading in evidence.

The third special plea was bad, as is apparent from a comparison of it with the principles hereinbefore laid down.

[6.] The faet that the cross-interrogatories, signed by the defendant, and in his handwriting, were found in the clerk’s office, was evidence so conducing to show a publication, that the court might with propriety admit them in evidence, and leave the question of publication to the jury.

[7.] The defendant having proved by a witness a declaration of the plaintiff, to rebut this evidence, and to impeach the. defendant’s witness, the plaintiff was permitted to prove, by another witness, that he had been intimate with the plaintiff for fifteen years, and had never been told any such thing by him. In admitting this evidence, the court erred. It has been decided in this State that, “ when the situation of a witness is such that, if a fact had existed, he would probably have known it, his want of knowledge is some evidence, though slight, that it did not exist.” Blakey v. Blakey, 33 Ala. 611. The reason of this principle does not sustain the ruling of the court below, in permitting a witness to state, in general terms, that he had not at any time heard the party utter a declaration proved by another witness. The general rule, to which the point presented is no exception, is, that a party cannot make evidence for himself, either by his conduct or declarations. Chaney v. State, 31 Ala. 342 ; Bradford v. Edwards, 32 Ala. 628.

As the judgment of the court below must be reversed for reasons already stated, and the principles we have laid down cover the real and important questions of the case, we decline to further swell this opinion.

Reversed and remanded.