| Mo. | Apr 15, 1890
It will be seen at a glance, from the statement' of the case, that plaintiff’s claim rests upon
Plaintiff was the deputy circuit clerk who made the original affidavit in support of the motion for security for costs, in response to which defendant’s affidavit, herein complained of, was filed. Defendant here was the attorney of record in the other cause for the plaintiff therein, against whom the rule for costs was prayed. The exact terms of the alleged defamatory matter appear in the petition, a copy of which is part of the statement preceding this opinion.
For reasons of public policy, there are many occasions on which a written or spoken expression of opinion or statement of facts, otherwise defamatory, is not ordinarily actionable as a libel or slander. This case does not require the enumeration of all such instances. They are usually classified by text-writers, under the head of privileged statements. Many of them arise in the course of judicial proceedings. Some utterances made in such proceedings are protected by a shield of absolute privilege, interposed from time immemorial by the rules of the common law, to secure the free and fearless conduct of such proceedings. Others are privileged in a lesser degree, and, upon a proper showing of' certain facts, the protection of privilege may be removed.
We shall not attempt a detailed statement of the principles governing this subject further than may be necessary to the precise case in hand. Owing to the-differences of opinion among the judges who have construed, from time to time, the common law regarding it, great difficulties arise upon any attempt to properly classify privileged occasions with reference to the rules applicable to each. We refrain from any such attempt.
Certain principles, however, are sufficiently well established by authority to furnish a rule of decision
The general rule is that an affidavit filed in the course of judicial proceedings is not actionable as libelous if fairly relevant to the issue, or responsive to some fact apparently bearing on the issue to which it is directed, assuming, of course, that the court has jurisdiction in the premises. If an irrelevant charge, otherwise libelous, is contained in such an affidavit, it may be the basis of an action for libel, if shown,to have been maliciously made, without an honest belief that it was relevant to the issue, based upon reasonable grounds for such belief. The nature of the irrelevant charge itself (with reference to the actual issues in the case wherein it occurs) may sometimes furnish evidence of the want of such belief, but where it does not, the question of affiant’s belief in the relevancy of the charge becomes, generally, one of fact, to be determined by the triers of the facts.
No action for libel can be maintained upon a charge contained in an affidavit filed in such a proceeding, where the charge is either relevant to the issue, or is believed (upon reasonable grounds) to be so by the affiant. Whether any other action will lie for a false charge so made, if instigated by malice, and without probable cause, is a question not now before us.
In the case at bar, it will be observed that the affidavit of defendant, which forms its ground-work, contains, first, a denial of the allegations of fact in the motion for security for costs, and, secondly, a charge that the affidavit of the plaintiff here, supporting that' motion, was a “corrupt, voluntary and wilful case of false swearing.”
II. A majority of the members of the court are agreed that the defamatory matter in- question, contained in the second part of the affidavit, is not sufficiently relevant (to the issue raised by the motion) to
In accordance with the views of the majority of the court, the judgment is reversed, and the cause remanded; ■