94 Ill. App. 171 | Ill. App. Ct. | 1901
delivered the opinion of the court.
The only question presented upon this appeal is as to the sufficiency of the evidence to go to the jury; and the only ground upon which the direction of a verdict by the trial court is sought to be justified, is that the writing, in which the alleged libel was published, is such a privileged publication as could in no event, under the evidence, be made the basis of a liability.
The general rule is, as contended by counsel for appellees, that in judicial proceedings both the answers of witnesses in testifying and the written statements of litigants and counsel in their pleadings, when such answers and such statements are material and pertinent to the issues presented, are protected as a matter of public policy, and constitute privileged communications upon which no liability can be predicated by reason of the words alone, in suit for slander or libel. McDavitt v. Boyer, 169 Ill. 475.
By that decision it is announced to be the rule that in the case of such privileged testimony and writings, malice can not be predicated merely upon the words thus spoken or written. Mr. Justice Magruder, speaking for the court, said:
“ Privileged words are also those which are used by a party or by counsel, or by a party acting as his own counsel, in judicial proceedings, including preliminary inquiries as to crime before justices of the peace. The same reasons, based upon public policy and upon the necessity for a fearless administration of justice, apply here as in the case of witnesses. Whatever is said or written in a legal proceeding, pertinent and material to the matter in controversy, is privileged, and no action can be maintained upon it. (Spaids v. Barrett, 57 Ill. 289; Strauss v. Meyer, 48 Id. 385.) Malice can not be predicated of what is said or written in a proceeding in a court of justice.”
But by this decision, as by all other well considered authority, the rule of protection is made to apply only to such words and writings, spoken or published, as are material and pertinent to the issues presented by the judicial proceeding in which they occur. McDavitt v. Boyer, supra; U. M. L. I. Co. v. Thomas, 83 Fed. Rep. 803; McLaughlin v. Cowley, 127 Mass. 316; same v. same, 131 Mass. 70.
It has been held that where the person testifying as a witness or charging facts in a pleading in a judicial procedure in good faith believes the words thus spoken or written to be material and pertinent to the issues presented in such proceeding, then the rule extends to such person, although the matter may be found to be not material and pertinent. Hastings v. Lusk, 22 Wend. 410; White v. Carroll, 42 N. Y. 161; Lea v. White, 4 Sneed (Tenn.), 111.
Which, after all, merely amounts to holding that the presumption of malice, arising from the use of libelous words, may be overcome by proof. In such case, the words not being pertinent and material, the rule of protection does not apply; nevertheless the defendant may show that he believed in good faith that they were pertinent and material, thus rebutting the presumption of malice.
Where the words spoken or published in judicial proceedings are material and pertinent, then it would seem that they are protected as privileged matter, even although the material and pertinent matter is expressed in words unnecessarily harsh and offensive. Astley v. Younge, 2 Burrows, 807; Hodgson v. Scarlett, 1 Barn. & Ald. 232; Marsh v. Ellsworth, 50 N. Y. 309; Hoar v. Wood, 3 Metc. (Mass.) 193; Hart v. Baxter, 47 Mich. 198.
In the case last cited the Michigan court, speaking through Mr. Justice Cooley, said:
“ Undoubtedly Baxter made use of epithets which were needless, and added no force to his statements, but he said nothing that was irrelevant, and the privilege was not lost by the excess.”
Measuring the case presented by the well established rules, as announced in the authorities cited, we are of opinion that the court erred in peremptorily directing a verdict for appellees. The alleged libel, as set forth in the foregoing statement of facts, counted upon in the first count of appellant’s narr., presents a good'cause of action in absence of a defense. The evidence sufficiently sustained the allegations of the declaration to warrant a submission to the jury. Ho defense, by way of justification, was established. The evidence relied upon by counsel for appellees is, we think, quite insufficient to warrant the court in concluding that the alleged libel was shown to be true.
Nor is the fact that the publication appeared from, the evidence to have been uttered as part of an answer in a judicial proceeding, sufficient, for the question of its materiality and pertinency still remained, or, at least, question as to whether the appellees in good faith regarded it as material and pertinent.
The court, in the judicial proceeding in which it occurred, viewed the matter as impertinent, and it was ordered stricken out of the answer on that ground. And from the evidence, disclosing the nature of the controversy in the contempt proceeding, it is apparent that the court in this suit could not properly hold that it was established that the matter was material and pertinent. If the defense that appellees in good faith believed it to be material and pertinent, was relied upon, then it ivas an affirmative defense, to be established by evidence, and no evidence to that end was presented. Moreover, it was primarily a question of fact for the jury, and not of law for the court. White v. Carroll, supra.
In that case the Supreme Court of New York said :
“It is perfectly clear that the question whether the defendant was protected under the circumstances was not a question of law for the court, but was a question of fact for the jury. It was really a question of conduct, of motive, of good faith and honest purpose, or of bad faith and malicious purpose. The question was whether the defendant did or did not avail himself of the occasion to maliciously answer the questions put to him as a witness in the way he did. This question was most emphatically a question for the jury.”
When the libelous matter is irrelevant and not pertinent to the proceeding in which it occurred, and where a defense is relied upon to the effect that the defendants in good faith believed it to be material and pertinent, then the question of good faith and malice is presented as a question of fact to be submitted to a jury.
It is urged by counsel for appellees that the bill of exceptions should be stricken from the record, because the stipulation provides that the original bill of exceptions “ be incorporated in the record and taken to the Appellate Court,” instead of providing, as was the evident intent of the litigants, that it be incorporated in the transcript of record.
This question has been considered by this court, and is disposed of adversely to the contention of appellees, in Am. Vault, S. & L. Co. v. Springer, 80 Ill. App. 231.
Tor the error in peremptorihr directing the jury to return a verdict for appellees, the judgment is reversed and the cause is remanded.
