Kirkpatrick v. Eagle Lodge No. 32 , 26 Kan. 384 ( 1881 )

The opinion of the court was delivered by

Horton, C. J.:

Upon the trial of this cause, the defendants in erro? objected to any evidence under the petition, on the ground that it does not state facts sufficient to constitute a cause of action. The court sustained the objection, and statement judgment was rendered against plaintiff for costs. The only question in this case is, whether such ruling and judgment are correct. The substance of the petition is that the Eagle Lodge No. 32, of the Independent Order of Odd Fellows, and the Grand Lodge of the Independent Order of Odd Fellows of Kansas, are private corporations, duly organized under the laws of the state; that the plaintiff was of good character, and had been admitted a member of the Eagle Lodge; that he had at all times conducted himself as a faithful Odd Fellow, and an honest, truthful and upright citizen, and had never been guilty, or suspected to have been guilty, of any infamous lie, falsehood or perjury; that plaintiff had filed at one time his petition in the Grand Lodge, complaining of the doings and proceedings of Eagle Lodge, and asking that the Grand Lodge take such action thereon as the justice of the case might require, which petition plaintiff had verified by his own affidavit annexed thereto; that afterward the Eagle Lodge summarily and wrongfully expelled the plaintiff from its membership on a false and malicious charge of perjury preferred against plaintiff in the Eagle Lodge, in his having verified his petition to the Grand Lodge, making complaints against the Eagle Lodge; that the defendants, well knowing the premises, and maliciously intending and contriving to injure him in his character and reputation ae a citizen and Odd Eellow, and maliciously intending and contriving to bring him into public scandal, infamy and disgrace among his neighbors,. the citizens of the state, and all good Odd Fellows, did, on the 16th day of October, 1873, in Jefferson county, and at other-times and places, falsely, wickedly and maliciously print and publish, and cause to be printed and published in a certain paper, book or pamphlet, having the title, “Grand Lodge Journal, 1873,” indorsed on the back thereof, a certain false, malicious and libelous matter, to wit:

“G. W. Martin, from the special committee on the memorial of William Kirkpatrick (meaning plaintiff), submitted the following report, which was unanimously adopted:

“ To the B. W. Grand, Lodge, Kansas, I. O. O. K :

. . . “‘Your committee, to which was referred the petition of William Kirkpatrick, . . . t'o have set aside certain action of Eagle Lodge No. 32, have had the same under consideration, and having visited Eagle Lodge No. 32, by your orders, to examine into the grievances of said Kirkpatrick, I am prepared to say that his . . . expulsion on the charge of perjury, from which he appealed, was well merited. On the occasion of that visit I carefully examined the brethren present, including the noble grand of the lodge at the time of Kirkpatrick’s first trial, the chairman of the committee charged with the register of evidence, the sitting past grand who appeared on behalf of the lodge, and the brother.who defended the accused.

. . . They were unanimous in the expression that the statements concerning said trial, sworn .to by Kirkpatrick, and presented at your last session, are all infamously untrue, . . . hence the expulsion for perjury. The testimony on charges in the first case being scattered and lost, I would recommend that the petition be not entered, and that in justice to said Eagle Lodge, it be not spread upon the minutes.

“.Respectfully submitted. Geo. W. Martin.”

That by the means thereof, the plaintiff has been greatly injured in his good name and reputation, to the damage of $20,000.

We think that the publication complained of imported a libel, for which an action would lie, unless the publication was privileged under the law. The publication was clearly of a character to injure the plaintiff among his neighbors and citizens of the state, and bring “ his private character, and the plaintiff himself, into contempt and disgrace with all honest men.” (Russell v. Anthony, 21 Kas. 450; Lansing v. Carpenter, 9 Wis. 541; 1 Hill on Torts, p.237, §13.) Counsel for defendants refer to cases, that to say of a man, he has sworn falsely, is not actionable. These do not apply. Many charges, which if merely spoken of another would not sustain an action for slander, will, if printed and published, sustain an action for libel. The principal question in the case is, “whether the publication is absolutely privileged, or only conditionally privileged.” In brief, can it be said that upon the allegations of the petition no action will lie? Cooley on Torts, p. 211, classifies privileged cases as follows:

“1. Cases absolutely privileged, so that no action will lie, even though it be averred that the injurious publication was both false and malicious.

2. Cases privileged, but only to this extent: That the circumstances are held to preclude any presumption of malice, but still leave the party responsible if both falsehood and malice are affirmatively shown.”

Under the head of cases absolutely privileged are cited: The testimony of %vitnesses injudicial proceedings; the language of jurors spoken to their fellows in consultations of the jury room, concerning the proper subject-matter of their deliberations; the case of a party presenting his cause to the court or jury, or of counsel standing in his place doing the same; words spoken in the course of judicial proceedings, though they are such as impute crime to another, when applicable and pertinent to the subject of the inquiry; the speech or debate of a legislator; the official utterances of the executive of the nation and the governors of the several states; the orders of judges of courts, and judicial officers while acting within the limits of their jurisdiction; the pleadings and other papers filed by parties in the course of judicial proceedings, so long as they do not wander from what is material to libel parties; so, affidavits made for commencing proceedings before magistrates, and the preliminary proceedings, and information taken or given for bringing supposed guilty parties to justice.

Under the classification of cases only conditionally privileged, “are those in which the utterance or publication is on a lawful occasion, which fully protects it, unless the occasion has been abused to gratify malice or ill-will; a petition to the executive, or other appointing power, in favor of an applicant for an office, or a remonstrance against such an applicant, is a publication thus privileged. No action will lie for false statements contained in it, unless it be shown that it was both false and malicious; and this rule will apply to petitions, applications and remonstrances of all sorts, addressed by the citizen to any officer or official body, asking what such officer or body may lawfully grant, or remonstrating against anything which it might lawfully withhold. It is a necessary part of the right of petition that such paper, presented in good faith, should be protected, and it is privileged while being circulated,.as well as after it is presented. All official communications made by an officer in the discharge of a public duty are under the like protection; so are communications by members of corporate bodies, churches and other voluntary societies, addressed to the body, or any official thereof, and stating facts, which if true, it is proper should be thus communicated.”

Under this classification, which is fully sustained by the authorities, the publication complained of is only conditionally privileged, and as the averments in the petition are, that the injurious publication is false and malicious, pumafaS"’ and that the defendants, well knowing its falsity, maliciously published it for the purpose of bringing the plaintiff into public scandal, infamy and disgrace, the petition states a cause of action; but no recovery can be had thereon without proof of express malice on the part of the defendants, though the charge imputed in the publication be without foundation. The authorities upon cases conditionally privileged are fully collated in Shurtleff v. Stevens, 51 Vt. 501. In the publication of an unauthorized communication, where the words charged are sufficient in themselves to sustain an action for libel, the plaintiff need only prove the publication. It devolves then upon the defendant to show by evidence that the words are true, or were published under such circumstances as not to be of an injurious nature. If words in themselves are actionable, and the publication not privileged, malicious intent in publishing them is an inference of law, and therefore needs no proof. But where the circumstances of the speaking and publishing are conditionally privileged — that is, where the circumstances of such publication are such as to repel the inference of malice, and 2. Burden of exclude any liability of the defendant, unless upon proof of actual malice, the plaintiff must furnish such proof; and this is the rule that must govei'n here. (How v. Bodman, 1 H. 528; Dial v. Holter, 6 Ohio St. 228.)

The judgment of the district court must be reversed, and the case remanded.

All the Justices concurring.