Cooper v. Phipps
33 P. 985
Or.
1893
Check Treatment
Mr. Justice Bean

delivered the opinion of the court:

1. The first assignment of error necessary for us to consider is that as a part of plaintiff’s case in chief, evidence in her behalf was admitted tending tо show that her general reputation for virtue and chastity was good. At the time this evidence was offered and admitted, no attack had been mаde by defendants, either in the pleadings or otherwise, upon the character of the plaintiff; and it was .then and there stated by their counsel, in open court, and in the hearing of the jury, that her reputation for virtue and chastity was admitted to be of the best, and that no attack would be made thereon during the trial, nor was any such attack made. There is some conflict in the authorities as to whether, in an action for libel or slander, the plaintiff may give in evidence his good character, without it first having been attacked by the defendant either in the pleadings or evidence. “But thе better opinion,” says Mr. Wharton, “is against this concession, on the ground that the law presumes a party’s character *363good, and that it is superfluоus for him to prove that which is presumed”: Wharton, Evidence, § 47. And again the same author says: “It would be manifestly improperio permit a party suing for damages to put in evidence, as reason why he should have heavy damages, that his character is good because, first, the law assumes all сharacters to be good, and there is no use in proving that which is thus assumed; secondly, to- make good character the basis of recovery, would be еquivalent to saying ‍​‌‌​​​‌‌​‌‌​​‌‌​‌‌‌​‌​​​‌‌​​‌​​​‌​‌‌​​​‌​​‌​​​‌​‍that a person with a bad character can be injured with impunity; thirdly, a collateral issue would be provoked which would bear hard upon many deserving cases. For these and other reasons the courts have refused to permit such evidence to be put in”: Idem, § 50. This we think the better doctrine, and the one supported by the weight of authority. The law presumes the plaintiff’s character to be good until it is attacked, and shе may safely rest upon this presumption, and no evidence that she may offer can add to or increase its force or virtue. See Hitchcock v. Moore, 70 Mich. 112 (14 Am. St. 474 and note; 37 N. W. 914), and 3 Am. & Eng. Enc. Lаw, 112, where the authorities are fully collated, and to which reference may be had by any one desiring to pursue the investigation.

2. The next assignment of error is in the instruction to the jury, that “actual ill will or malice will enhance the damages, and may he shown for that purpose, but need not be shown tо entitle the plaintiff to recover.” This was manifest error under all the authorities. While there is some conflict in the adjudged cases as to whethеr witnesses are absolutely exempt from ‍​‌‌​​​‌‌​‌‌​​‌‌​‌‌‌​‌​​​‌‌​​‌​​​‌​‌‌​​​‌​​‌​​​‌​‍liability to an action for defamatory words uttered or published in the course of judicial procеedings, it is agreed by all the authorities that they are presumptively so, and before a witness can be held liable in a civil action, this presumption must be overcome by showing affirmatively that such statements were not only false and malicious, but that they were not *364pertinent to the issues, and not in rеsponse to questions asked by counsel. It seems to be the settled doctrine of the English courts that statements made by a witness in the course of a judicial investigation are absolutely privileged to that extent that no action for libel or slander will lie therefor: Townshend, Libel and Slander, § 223; Goffin v. Donnelly, 6 Q. B. Div. 307; Seaman v. Netherclift, L. R. 2. C. P. Div. 53; Dawkins v. Rokeby, L. R. 8 Q. B. 255; S. C. L. R. 7 H. L. 744. In this country, many, and perhaps a majority, of the courts have refused to adopt the absolute and unqualified privilege of a witness, as laid down by the English courts; but it is agreed that a witness is absolutely privileged as to everything said by him having relation or reference to the subject matter of inquiry before thе court, or in response to questions asked by counsel, and presumptively so as to all his statements. Some of the cases hold that if he abusе his privilege by making false statements, which he knew to be impertinent and immaterial, and not responsive to questions propounded to him, for the purpose of malicious defamation, he may, upon an affirmative showing to that effect, be held in damages for libel or slander: Rice v. Coolidge, 121 Mass. 393; White v. Carroll, 42 N. Y. 161; Smith v. Howard, 28 Iowa, 51; Barnes v. McCrate, 32 Me. 442; Hutchinson v. Lewis, 75 Ind. 55; Cooley, Torts, 211; Newell, Slander and Defamation, 449; Hoar v. Wood, 3 Metc. 193; Mower v. Watson, 11 Vt. 536; Shadden v. McElwee, 86 Tenn. 146 (5 S. W. 602; 6 Am. St. Rep. 821 and note). In Odgers on Libel and Slander, page 191, it is said that “A witness in the box is absolutely privileged in answering all the questions asked him by the counsel on either side; and even if hе volunteers an observation (a practice much to be discouraged), still, if it has reference to the matter in issue, or fairly arises out of any question asked him by counsel, though only going to his credit, such observation will also be privileged; but a remark made by a witness in the box, *365wholly irrelevant to the matter of inquiry, uncalled for by any question of counsel, and introduced by the witness maliciously, ‍​‌‌​​​‌‌​‌‌​​‌‌​‌‌‌​‌​​​‌‌​​‌​​​‌​‌‌​​​‌​​‌​​​‌​‍for his own purposes, would not be privileged, and would also probably be a contempt of court.” So also in Hoar v. Wood, 3 Metc. 193, Chief Justice Shaw said: “ We take the rule to be well settled by the authorities that words spokеn in the course of judicial proceedings, though they are such as impute crime to another, and therefore, if spoken elsewhere, would import malice, and be actionable in themselves, are not actionable if they are applicable and pertinent to the subjеct of inquiry. The question, therefore, in such case is not whether the words spoken are true, not whether they are actionable in themselves, but whеther they were spoken in the course of judicial proceedings, and whether they were relative and pertinent to the cause or subject of inquiry.”

And in Mower v. Watson, 11 Vt. 536, Mr. Chief Justice Nedeield, after an extended examination of the authorities, says: “ From the foregoing cases the true ground of the privilege is readily deduced. Prima facie, the party or his counsel is privileged for everything spoken in court. If any one considers himself aggrieved, in order to sustain an action for slander, he ‍​‌‌​​​‌‌​‌‌​​‌‌​‌‌‌​‌​​​‌‌​​‌​​​‌​‌‌​​​‌​​‌​​​‌​‍must show that the words spoken were not pertinent to the matter then in progress, and that they were spoken maliciоusly, and with a view to defame him. So that if the words spoken were pertinent to the matter in hand, the party and counsel may claim full immunity from an action of slander, however malicious might have been his motive in speaking them. So, too, if the words were not pertinent to the matter in issue, yet if the party spoke them* bona fide, believing them to be pertinent, no action of slander will lie. So that the plaintiff, in order to maintain this action, must prove, first, that the words sрoken were not pertinent to the matter then in hand, and, secondly, that they were spoken bona fide.” So that whether we adopt the rule as prevailing in England, *366or as modified by some of the courts of this country, it is apparent that under either view the instruction that proof of actual malice was not necessary to enable the plaintiff to maintain this action was clearly erroneous. The words complained of were spoken by defendant when a witness in a judicial proceeding, in response to an interrogatory of counsel, and, under the rule most favorable to the plaintiff’s contention, were presumptively privileged, and before this presumption can be ovеrcome, the plaintiff must show affirmatively that they “ were not pertinent to the matter then in progress, and that they ‍​‌‌​​​‌‌​‌‌​​‌‌​‌‌‌​‌​​​‌‌​​‌​​​‌​‌‌​​​‌​​‌​​​‌​‍were spoken maliciously and with a view to defame her.”

We think it unnecessary to notice at this time the other assignments of error, and the judgment of the court below will be reversed and a new trial ordered.