43 La. Ann. 454 | La. | 1891
The opinion of the court was delivered by
The plaintiff sued the defendant for libel and slander.
The alleged libel and slander is contained in the petition in the suit of Jacob McWilliams vs. Jnstinien Michel.
The object of the suit was to have declared absolutely null and void a certain tax sale of the plaintiff’s property.
The language used is of that character which, if not classed as a privileged communication, malice would be presumed and damages assessed, unless justified by the defendant. It will not be necessary to reproduce the language employed in the petition in said suit of McWilliams vs. Michel.
The defence is that the libel and slander is a privileged communication ; that it was used in the petition in said suit without malicious intent, upon the advice of counsel, in the prosecution of his legal rights.
The trial was by jury and there was a judgment and verdict in favor of defendant, from which the plaintiff appealed.
In the suit of McWilliams vs. Michel, out of which grew this suit, the plaintiff alleged that he was the owner of certain property, upon which all the taxes had been paid, and that the sheriff illegally and wrongfully sold the same at tax sale, and adjudicated the same to Michel. That said property was' confusedly sold with property belonging to Wilbur & Sons, although he held a difetinet title to same, which was known to said sheriff and tax collector, Gardemal.
That his property and that of Wilbur & Sons was sold at said tax sale as the property of Breaux and Duperrier, when said sheriff and tax collector knew that said property was owned by him and Wilbur & Sons. That he knew the taxes had all been paid on said property. That after said sale to Michel, he entered into an agreement with Titus Gardemal, the brother of said Gabriel Gardemal, sheriff and tax collector, to cut down and remove timber from said property.
He alleges that said sheriff, Gardemal, failed to offer said property for sale on the day advertised, because there were many bidders present, and that he postponed said sale to a different day, when it was sold as alleged. In these acts of the sheriff, it is alleged he conspired with his brother, Titus Gardemal, and Justinien Michel, in order, through a pretended tax sale, to get possession of the property of the petitioner.
' An injunction was prayed for against Michel, and a judgment was prayed for quieting petitioner in his title to said property.
This is but a brief summary of the many allegations in the petition.
There was evidence introduced on the trial to prove the falsity of the severe charges in the petition.
They may be .unfounded .and false in fact, and yet defendant may not be responsible in damages for the language used in the petition. In privileged communications the party is protected from the infliction of damages, unless the occasion was used as a means of inflicting a wilful and malicious injury upon the plaintiff.
The occasion on which a privilege communication is made rebuts the inference of malice arising from a statement prejudicial to the character of the plaintiff, and it devolves upon him to prove malice in fact; that the defendant was actuated by motives of personal spite and ill-will independent of the occasion on which the communication was made.
Certain communications are absolutely privileged, and no person is liable either civilly or criminally in respect of anything published by him in the course of his duty in any judicial proceeding. This privilege extends to parties, counsel, witnesses, jurors and judges in a judicial-proceeding, to proceedings in legislative bodies, and to all who, in the discharge of public duty or the honest pursuit of private right, are compelled to take part in-the administration of justice or
In this class of privileged communications, the occasion is an absolute privilege, and the only question is whether the occasion existed and whether the matter complained of was pertinent to the occasion. In judicial proceedings, both criminal and civil, great latitude is allowed parties in the pursuit of private rights, or the prosecution- of crimes. Public order necessarily requires this latitude. What, then, is alleged in a judicial proceeding in the effort to enforce a private right is not to be judged by technical rules. The party attempting to enforce his right may be mistaken in his remedy; he may use language which could have been avoided. But after all, the question is one of intent.
“Intent makes the libel in such a case; strong words do not.” Klinch vs. Colby, 46 N. Y. 434.
If the occasion exists on which the privileged communication is made, and the matter is pertinent to the occasion, it supplies an absolute defense and depends in no respect upon the bona fides of the defendant.
The burden of proof is on the plaintiff. • He must show the absence of the occasion; and if the occasion existed, that the matter complained of was not' pertinent to the occasion, and that the defendant acted with malice in fact, through hatred, ill-will, with a malicious design to injure the plaintiff. Fisk vs. Soniat, 33 An. 1400.
There is no proof of this kind in the record.
Judgment affirmed.
