Acre v. Starkweather , 118 Mich. 214 ( 1898 )

Grant, C. J.

The plaintiff sued defendant for slanderous words claimed to have been uttered as a witness in a criminal suit against plaintiff. The suit was in justice’s court. The testimony was not reduced to writing, and the witnesses for the plaintiff do not agree as to the manner in which the alleged slanderous words were uttered, or as to the exact words uttered. According to some of them, the slanderous words were uttered in response to direct and leading questions put by plaintiff’s attorney on cross-examination. For this, therefore, ho action will lie.

The testimony of plaintiff himself is that, after defendant had testified that plaintiff’s reputation for truth and veracity was bad, either plaintiff’s attorney or the defendant’s attorney asked him what he based his opinion on, and that his reply was: “ He is a thief; he has stole my paint clothes, paint brushes, and part of a harness;” and that he had had plaintiff arrested for stealing these things from him. The other witnesses agree that it was the plaintiff’s own attorney who asked him the question, and this must be taken as the fact.

Assuming that the law sustains an action for slander against a witness, we are of the opinion that plaintiff has not brought his case within the rule of those authorities which sustain the right of action. The witness, who is not a lawyer, is not cognizant of the rules of law, and cannot, for himself, readily determine the materiality or responsiveness or pertinency of his answers. He is unfamiliar with the rules of evidence. Public policy requires that he should not be trammeled with fear of a prosecution for slander. The question was a general one. It cannot be said that it is unnatural that the witness should believe that this affected his reputation in the community. The rule is not so hard as to say that the witness, in reply to a general question, where he is not cautioned by court or counsel, must, at his peril, determine the materiality and responsiveness of the question. The English courts and some American courts hold the witness to be absolutely privileged. Some of the courts of this country hold the privilege to be a conditional one. Under the view we take of the case, it is unnecessary to determine this question, which is before this court for the first time. All the courts which hold the privilege to be conditional are very-careful to protect the privilege, and to confine the right of action within very narrow limits. Barnes v. McCrate, 32 Me. 442; Calkins v. Sumner, 13 Wis. 193 (80 Am. Dec. 738).

The verdict being one which the court should have directed, it is unnecessary to discuss the errors alleged.

Judgment affirmed.

Hooker, Moore, and Long, JJ., concurred with Grant, O. J.