26 Kan. 384 | Kan. | 1881
The opinion of the court was delivered by
Upon the trial of this cause, the defendants in erro? objected to any evidence under the petition, on the ground that it does not state facts sufficient to constitute a cause of action. The court sustained the objection, and
“G. W. Martin, from the special committee on the memorial of William Kirkpatrick (meaning plaintiff), submitted the following report, which was unanimously adopted:
“ To the B. W. Grand, Lodge, Kansas, I. O. O. K :
. . . “‘Your committee, to which was referred the petition of William Kirkpatrick, . . . t'o have set aside certain action of Eagle Lodge No. 32, have had the same under consideration, and having visited Eagle Lodge No. 32, by your orders, to examine into the grievances of said Kirkpatrick, I am prepared to say that his . . . expulsion on the charge of perjury, from which he appealed, was well merited. On the occasion of that visit I carefully examined the brethren present, including the noble grand of the lodge at the time of Kirkpatrick’s first trial, the chairman of the committee charged with the register of evidence, the sitting past grand who appeared on behalf of the lodge, and the brother.who defended the accused.
. . . They were unanimous in the expression that the statements concerning said trial, sworn .to by Kirkpatrick, and presented at your last session, are all infamously untrue, . . . hence the expulsion for perjury. The testimony on charges in the first case being scattered and lost, I would recommend that the petition be not entered, and that in justice to said Eagle Lodge, it be not spread upon the minutes.
“.Respectfully submitted. Geo. W. Martin.”
We think that the publication complained of imported a libel, for which an action would lie, unless the publication was privileged under the law. The publication was clearly of a character to injure the plaintiff among his neighbors and citizens of the state, and bring “ his private character, and the plaintiff himself, into contempt and disgrace with all honest men.” (Russell v. Anthony, 21 Kas. 450; Lansing v. Carpenter, 9 Wis. 541; 1 Hill on Torts, p.237, §13.) Counsel for defendants refer to cases, that to say of a man, he has sworn falsely, is not actionable. These do not apply. Many charges, which if merely spoken of another would not sustain an action for slander, will, if printed and published, sustain an action for libel. The principal question in the case is, “whether the publication is absolutely privileged, or only conditionally privileged.” In brief, can it be said that upon the allegations of the petition no action will lie? Cooley on Torts, p. 211, classifies privileged cases as follows:
“1. Cases absolutely privileged, so that no action will lie, even though it be averred that the injurious publication was both false and malicious.
2. Cases privileged, but only to this extent: That the circumstances are held to preclude any presumption of malice, but still leave the party responsible if both falsehood and malice are affirmatively shown.”
Under the head of cases absolutely privileged are cited: The testimony of %vitnesses injudicial proceedings; the language of jurors spoken to their fellows in consultations of the jury room, concerning the proper subject-matter of their deliberations; the case of a party presenting his cause to the court or jury, or of counsel standing in his place doing the same; words spoken in the course of judicial proceedings, though they are such as impute crime to another, when applicable and pertinent to the subject of the inquiry; the speech or debate of a legislator; the official utterances of the executive of the nation and the governors of the several states;
Under the classification of cases only conditionally privileged, “are those in which the utterance or publication is on a lawful occasion, which fully protects it, unless the occasion has been abused to gratify malice or ill-will; a petition to the executive, or other appointing power, in favor of an applicant for an office, or a remonstrance against such an applicant, is a publication thus privileged. No action will lie for false statements contained in it, unless it be shown that it was both false and malicious; and this rule will apply to petitions, applications and remonstrances of all sorts, addressed by the citizen to any officer or official body, asking what such officer or body may lawfully grant, or remonstrating against anything which it might lawfully withhold. It is a necessary part of the right of petition that such paper, presented in good faith, should be protected, and it is privileged while being circulated,.as well as after it is presented. All official communications made by an officer in the discharge of a public duty are under the like protection; so are communications by members of corporate bodies, churches and other voluntary societies, addressed to the body, or any official thereof, and stating facts, which if true, it is proper should be thus communicated.”
Under this classification, which is fully sustained by the authorities, the publication complained of is only conditionally privileged, and as the averments in the petition are, that the injurious publication is false and malicious,
The judgment of the district court must be reversed, and the case remanded.