Tanner v. Gault

Fremont E. Tanner, plaintiff in error in this court, and plaintiff in the court below, was the county surveyor of Medina county. The defendants were the county commissioners of that county.

In March, 1923, the county commissioners passed a resolution, and spread the same upon their journal, authorizing and directing the plaintiff to procure and put on a certain county road ten carloads of cinders. In April of the same year, plaintiff surveyor, not having made said improvement, presented to the board of county commissioners a requisition asking for authority to purchase two cars of cinders for such road.

Thereupon the county commissioners rescinded their authorization for ten carloads of cinders and passed a resolution ordering the surveyor to purchase two cars of cinders for the road, in accordance with his last request.

In passing the second resolution and as an explanation and reason for cutting the improvement from ten to two cars of cinders, the county commissioners stated as a preamble to the second resolution that the first resolution when passed was based upon a report made to them by the surveyor as to the amount of money in the treasury to the credit of the county road fund, which report they believed to be true, but which, in fact, was false. The second resolution is as follows:

"Whereas: on the twelfth day of March, 1923, the County Surveyor F.E. Tanner made a false report to the County Commissioners of Medina County, Ohio, concerning the amount of money in the treasury to the credit of the County Road No. 3, Sec. C Fund; and

"Whereas, on account of said false report and at the time believing the same to be true the County Commissioners passed a resolution which is duly recorded on page 76 of the Commissioners Journal, authorizing and directing the county surveyor to procure and put on the county road No. 3, Sec. C in York and Litchfield townships ten carloads of cinders; and

"Whereas, said F.E. Tanner has failed to comply with said order or to do anything in compliance with said order to procure said cinders till this 23d day of April, 1923, when he presents a requisition asking for authority to purchase 2 cars of cinders for said County Road 3, Sec. C at $10 per car and to pay 50 cents per ton freight thereon; therefore be it

"Resolved: by the County Commissioners of Medina County, Ohio, that said former resolution so recorded on page 76 of Commissioners Journal No. 14, be and the same is hereby repealed, and be it further

"Resolved: That the County Surveyor be and he is hereby ordered to purchase two cars of cinders for said road at a cost of not to exceed $10 per car and 50 cents per ton for freight."

Thereafter, the surveyor brought this action against the commissioners to recover damages, claiming that the statement in the second resolution, that he had made a false report, was untrue; that in fact he had made no report, and that said matter was included in said resolution with the intention and for the purpose of maliciously and wilfully injuring him in his good name, character and reputation, and in his office and business.

The commissioners filed a demurrer, claiming that the matter complained of was privileged, and the trial court so held, and sustained the demurrer, and, plaintiff not desiring to plead further, judgment was entered in favor of the defendants.

From our examination of the authorities we are of the opinion that there is a well-established general rule in this country that libelous or slanderous matter published in due course of legislative proceedings is absolutely privileged, and will not support an action, although made maliciously and with knowledge of its falsity, if pertinent or relevant to the matter under inquiry, and that this broad and comprehensive rule includes within its scope the proceedings of all legislative bodies, state or municipal, and that the county commissioners in this instance and transaction were such a body within the rule.

In the United States, according to the weight of authority, in order that defamatory matter published in the due course of legislative proceedings may be absolutely privileged it must be connected with, or relevant or material to, the subject of inquiry, and the controlling question in this case, which was a question for the court to determine, was whether or not the libelous matter complained of was connected with or relevant or material to the action taken by the commissioners. If it was, it was privileged within the rule stated.

It is difficult to determine in some cases what is relevant or pertinent, for these words have in a measure a technical meaning, but the weight of authority seems to sustain the proposition that in the general rule heretofore stated these words are not used in a narrow, technical sense; some courts have preferred the use of the words "having reference to," or "having relation to the cause or subject-matter," or "made with reference to," and in determining the question of whether or not certain libelous matter is relevant or pertinent to the transaction the courts are inclined to a liberal rather than a constrained or close construction. Maulsby v. Reifsnider, 69 Md. 143, 14 A. 505;Moore v. Manufacturers' Natl. Bank, 123 N.Y. 240, 25 N.E. 1048; Shodden. v. McElwee, 86 Tenn. 146, 5 S.W. 602, and Kemper v. Fort, 219 Pa., 85, 67 A. 991.

Our own supreme court, in Mauk v. Brundage, 68 Ohio St. 89, a case somewhat similar to the case at bar, has stated the proposition as follows, at page 97:

"In order to be privileged, the statement must be pertinent and material to the matter in hand. To be pertinent and material it must tend to prove or disprove the point to be established, and have substantial importance or influence in producing the proper result. In other words, the statement must be necessary to a full presentation and in that sense essential to the accomplishment of the object sought."

In the case at bar, we agree with the court below in holding that the matter complained of was privileged. The commissioners had authorized the placing upon the road in question ten cars of cinders; they were about to change the ten to two, and it seems to us that it was pertinent and relevant for them to state their reasons for rescinding the former resolution and to set forth what was done that had a substantial importance or influence in bringing about such change. It is true that it was not absolutely necessary for them to state their reasons for rescinding their former action, but the official duties and conduct of the surveyor were so connected with the improvement concerning which the commissioners were acting as to make reference thereto both relevant and proper.

Judgment affirmed.

PARDEE, P.J., WASHBURN and FUNK, JJ., concur.