Keeley v. Great Northern Railway Co.

156 Wis. 181 | Wis. | 1914

Timlin, J.

The demurrer must he taken to admit the good character, chastity, and good reputation of the plaintiff and the falseness of the accusations against her contained in the affidavit of Sandager, also the agency of the defendant’s attorneys for defendant in procuring and filing this affidavit and the ratification by defendant of their acts in so doing by neglect, after notice, to take any action to withdraw or repudiate said affidavit or the libelous statements therein contained. On the other hand, it cannot he taken to admit the pleader’s conclusions that the affidavit and its contents were irrelevant, because the facts upon which such conclusions are based are set forth in the complaint. The case is, from one viewpoint, well calculated to arouse sympathy for the plaintiff and indignation against the defendant. The latter, upon motion for a new trial in the personal injury action [Keeley v. G. N. R. Co.] reported in 139 Wis. 448, 121 N. W. 167, presented the affidavits of Zearfoss and Barr and that of its detective, Sandager, t'he first two suggesting that one Harty, a witness for tfie plaintiff in that action, upon whose testimony the verdict largely rested, was a liar and perjurer, and the third charging that he was a self-confessed thief, but also containing, among other things, actionable aspersions upon the chastity of plaintiff resting upon the hearsay statements of this man Harty, whose sworn testimony they at the same time contended was unworthy of belief. These hearsay statements were supplemented by a somewhat vague statement of the detective, Sandager. But sympathy and indignation are emotions which must be laid aside in the decision of legal controversies by those who would hold with an even hand the scales of justice. There is also another aspect of the case which may have presented itself persuasively to the attorneys by and through whom the defendant acted. Harty’s testimony largely turned the case against defendant, and there was considerable showing of recklessness of statement on his part. Professional zeal may have made the counsel unduly suspicious of those opposed and unduly credulous of everything which made in their favor, but this is the ordinary mental condition of litigants and frequently of their counsel. If the illicit relations charged existed, a motive for falsifying by Harty would be shown and he could no longer be considered a disinterested witness as he appeared to the court and jury on the trial. The case was close enough on the evidence so that this consideration might induce the learned circuit court to exercise his discretion in granting a new trial if he believed the verdict unjust. The fact that the judge apparently disapproved of this attack upon the reputation of the plaintiff, and also denied the motion for a new trial as he lawfully might do, is immaterial. The affidavit was just as relevant on the motion for a new trial denied in this way as it would have been had the trial court been induced thereby to grant a new trial. Schlag v. C., M. & St. P. R. Co. 152 Wis. 165, 139 N. W. 756, and cases cited.

To the ordinary observer it might and no doubt often does appear that court proceedings would be greatly improved by more courteous and considerate treatment of parties and witnesses, and to a great extent this is true. But this courtesy cannot be enforced to the extent of excluding relévant matters from the consideration of the court, for we are not to suspend the search for relevant truth for the sake of courtesy. The paramount' public interest here intervenes and overrides considerations of mere private right as between the parties. It is not out of tenderness to the calumniator or the bearer of false witness that the law regards certain communications as absolutely privileged. But’ public interest demands that complainants and suitors and their lawful representatives be at liberty to urge, befoi’e any legal tribunal having authority to decide, all matters relevant to the questions to be decided. A communication may be absolutely or conditionally privileged.

“An absolutely privileged communication is one in respect of which, by reason of the occasion upon which it is made, no remedy can be had in a civil action of slander or libel.” “A conditionally privileged publication is a publication made on an occasion which furnishes a prima facie legal excuse for the making of it; and which js privileged unless some additional fact is shown, which so alters the occasion as to prevent its furnishing a legal excuse. The additional fact which in the majority of cases is required to destroy this conditional privilege, is malice, meaning bad intent.” Noonan v. Orton, 32 Wis. 106.

In Schultz v. Strauss, 127 Wis. 325, 106 N. W. 1066, the statements of a witness before a grand jury were held to be absolutely privileged; and in Jennings v. Paine, 4 Wis. 358, a relevant statement by an attorney in argument was held to be entitled to the same privilege. In Larkin v. Noonan, 19 Wis. 82, charges otherwise libelous and maliciously made, embraced in a petition to the governor for the removal of a sheriff from office, but relevant to the removal, were held not sufficient to support an action for libel. In Calkins v. Sumner, 13 Wis. 193, a witness in an action was sued for slander in giving bis testimony, and it was ruled that the defendant was not liable even if the charge was made by him maliciously, if what he testified to was relevant to the subject of inquiry.

It is contended here that the demurrer admits these aver-ments of the complaint which charged lack of good faith, want of reasonable belief in the truth of the affidavit made against the plaintiff, and knowledge on the part of the'-defendant that the affidavit in question was false and malicious, hence that the defendant cannot shelter itself behind a plea of privilege. This would be true as to conditional privilege. But this complaint shows on its face that the court had jurisdiction to entertain the motion and that the matter complained of was relevant to the inquiry upon this motion, and in this respect shows a ease of absolute privilege within the rule of Jennings v. Paine, 4 Wis. 358; Calkins v. Sumner, 13 Wis. 193; Larkin v. Noonan, 19 Wis. 82; Schultz v. Strauss, 127 Wis. 325, 106 N. W. 1066. The cases of Cottrill v. Cramer, 43 Wis. 242; Eviston v. Cramer, 47 Wis. 659, 3 N. W. 392; and Cochran v. Melendy, 59 Wis. 207, 18 N. W. 24, were cases of communications conditionally privileged and are not in point here.

In order to bring a witness, counsel, or party in a litigation within the rule of absolute privilege, it is only necessary to show that the alleged slanderous or libelous words, at the time wffien made or published, were clearly relevant to the pending legal inquiry in which they were uttered or used. Nothing less than this would be an adequate protection. Odgers, Libel & S. 191; Hoar v. Wood, 3 Met 193; Laing v. Mitten, 185 Mass. 233, 70 N. E. 128. Where slanderous or libelous words employed in such a proceeding are irrelevant they fall within the rule-'of conditional privilege, and if they are shown to be false and not put forward with any bona fide belief in their truth or their relevancy, or any other ground ■of actual malice be shown, the conditional privilege is lost and the utterer liable. Without approving everything said therein we may here cite Myers v. Hodges, 53 Fla. 197, 44 South. 357; Lauder v. Jones, 13 N. Dak. 525, 101 N. W. 917. In some of the cases and text-books cited the distinction between absolute and conditional privilege is not accurately stated, as in Newell on Defamation, Slander and Libel, page 423; but see page 425 of the same work. Cases from other courts may also be found which ignore the distinction between absolute and conditional privilege; here made to rest upon the nature of the judicial proceeding and the relevancy of the matter complained of. But such cases are not the law of this state. In legal proceedings, if the matter be relevant but false in fact, the law undertakes to punish for perjury, but civil damages are not recoverable. If irrelevant, false, and uttered or published with express malice, damages may be recovered in a civil action. If irrelevant and false, but uttered or published without' actual as contradistinguished from imputed malice, it usually falls within the rule of conditional privilege, depending somewhat upon the degree of its irrelevancy; for if the matter is very obviously irrelevant, that circumstance may impugn the good faith of the utterer or publisher and either take the case out of the rule of conditional privilege or be considered evidence to support a finding of express malice. Sherwood v. Powell, 61 Minn. 479, 63 N. W. 1103, 29 L. R. A. 153; McLaughlin v. Cowley, 127 Mass. 316; S. C. 131 Mass. 70.

By the Court. — Order affirmed.