72 F. 136 | 5th Cir. | 1896
On April 6,1891, J. Gordon Brown, the defendant in error, brought a suit against Archie R. Master-son, the plaintiff in error, and other parties. That suit was tried and came to final decree in the circuit court in favor of the defendants on November 18, 1893. Brown appealed, and the decision of this court affirming the decree was rendered June 6, 1894, and is reported in 10 C. C. A. 532, 62 Fed. 519. On September 10, 1894, this action for malicious prosecution and for libel was brought. On July 12, 1895, the plaintiff below filed his amended original petition, which, under the practice in Texas, took the place of the original petition. To this pleading Brown opposed (1) a general demurrer, specifying several grounds; (2) a special demurrer in varying forms, setting up the statute of limitation. The circuit court overruled the first of these demurrers, and sustained the one setting up the limitation of one year.
It is suggested by counsel that the circuit court in ruling on the demurrers held that the plaintiff’s pleading was not good as an action for malicious prosecution, but was good as an action for libel;- that the publications complained of were not absolutely privileged, though made in the progress of judicial proceedings, but that the entire cause of action arose on April 6, 1891, and was barred by the statute of limitation before the institution of this suit. The plaintiff, not being able by amendment to avoid the demurrer as thus grounded, declined to amend, and judgment of dismissal and for costs was entered against him. The recorded judgment on the demurrers does not expressly show all that counsel suggests, but clearly implies it', for it is settled and conceded that a cause of action for malicious prosecution is not complete until the malicious prosecution is finally disposed of in favor of the defendant, which cannot be claimed to- have occurred in this case before November 18, 1893, if before June 5, 1894. It is, we think, settled, though not conceded, that plaintiff's original
Originally, that is to say from a time whereof the memory.of man runneth not to the contrary, it was the common law of England lhat the party aggrieved had an action on the case for malicious prosecution in a civil suit. And at a later period, in lieu of this remedy, or possibly in addition to it (it is not quite clear in the traditions), parties were in a measure protected against malicious prosecutions in civil suits by the requirement that all plaintiffs in civil actions should give pledges or sureties for the effective prosecution of their suit, on failure to establish which the plaintiff and his sureties became liable to be amerced by the judges in favor of the king for troubling his courts with a false claim. As yet no costs were taxed or adjudged in favor of a successful defendant, though an addition to his damages on account of his trouble and expense in having to go to law for his rights was always allowed by the jury, under the instruction of the judges, in favor of a. prevailing plaintiff. The English common law had its origin and early growth in royal edicts and statutes, the text of which has perished, and the substance of which, so far as it was preserved at all, was for ages in most part transmitted by tradition through their application to cases as they arose im the king’s courts. The practice of amercement proving to be clearly inadequate to protect parties from false or frivolous suits, statutes began to be proclaimed allowing successful defendants in certain kinds of actions to recover costs. One of the earliest of these is the statute of 52 Hen. in. c. 6 (A. D. 1267), often referred to in connection with the subject we are now discussing as the “Statute of Marlbridge.” It was framed to meet a single case or cases of a single class. . Other statutes followed after many years, but
The plaintiff also contends that the libelous matter laid was published from day to day, successively, from September 6, 1891, to November 18, 1893, during all of which time the actionable char
“Upon tlio question of limitation we earnestly insist that legal principles and analogy alike require that a canse of action for libelous proceedings and statements in court proceedings cannot arise until the final determination of the cause in which such pleadings are filed. That such is the rule in all jurisdictions as to malicious prosecutions is undisputed, and this concensus of opinion is not due to any statutory provision on the subject, but to the application of the general principles of common law, every one of which1 is equally potent with reference to cases for libelous pleadings. It is just as essential to the due and orderly administration of justice that the issues presented in the libelous pleadings should be determined in the court in which they are tendered, and the truth or falsity of such pleadings be therein adjudged without interference by any other tribunal, as it is that right of action for a malicious prosecution should be deferred until the issues joined in the malicious suit are determined in favor of the defendant. It is quite as inconsistent with the orderly administration of justice for the party against whom libelous charges are made in judicial proceedings to go at once into another tribunal, and there controvert the matters set out in such libelous pleadings, and to have two courts trying the same issues of fact between the same parties at the same time, as it would be to pursue a similar course in a suit for malicious prosecution. And so with every reason given by the courts and elementary writers for deferring the right to sue for damages for malicious prosecution until the adjudication of the issues therein. AÍ1 apply with equal force to cases of the character of the one under consideration.”
In an action for malicious prosecution “the plaintiff must charge and prove that be has been prosecuted by the defendant, that the prosecution was malicious, that it was instituted without probable cause, that the prosecution has terminated in his favor, and that he has sustained damage. * * * The reasons why an action should be terminated in favor of a defendant before the defendant can commence action for malicious prosecution would seem to be as follows: First, if the action is still pending, the plaintiff therein may show in that action that he had probable cause for commencing the suit by obtaining a judgment therein against the defendant and he should not be called unon to show such a fact in a second action until he has had this opportunity of showing it in the first-second, and if the action has terminated against the defendant’ then there is already an adjudication against him, showing conclusively that the plaintiff had probable cause for commencing the action.” Marbourg v. Smith, 11 Kan, 551 The defendant in the
“It seems to be settled by tbe English authorities that judges, counsel, parties, and witnesses are absolutely exempted from liability to an action for defamatory words published in the course of judicial proceedings. [Citing •cases.] The • same doctrine is generally held in the American courts, with the qualification as to parties, counsel, and witnesses, that, in order to be privileged, their statements made in the course of an action must be pertinent and material to the. case. [Citing cases.] We assume, therefore, for the purposes of this case, that the plaintiff cannot maintain an action against the witnesses in the suit in Iowa for their defamatory statements, though they were false.”
The suit of Rice v. Coolidge was not against the witnesses, hence it was not necessary for the court to announce its doctrine, as, for the purposes of that case, assuming the witnesses were not liable, it did not follow that the defendants were not liable. In White v. Nicholls, 3 How. 266, the supreme court settle the question for this court thus:
“The investigation has conducted us to the following conclusions, which we propound as the law applicable thereto: (1) That every publication, either by writing, printing, or pictures, which charges upon or imputes to any person that which renders him liable to punishment, or which is calculated tp make him infamous or odious or ridiculous, is prima facie a libel, and implies malice in the author and publisher toward the person concerning whom such publication is made. Proof of malice, therefore, in the cases just described, can never be required of the party complaining beyond the proof of the publication itself. Justification, excuse, or extenuation, if either can be shown, must proceed from the defendant. (2) That the description of cases recognized as privileged communications must be understood as exceptions to this rule, and as being founded upon some apparently recognized obligation or motive, legal, moral, or social, which may fairly be presumed to have led to the publication; and, therefore, prima fadie relieves it from that just implication from which the general rule of the law is deduced. The rule of evidence, as to such cases, is accordingly so far changed as to impose it on the plaintiff to remove those presumptions flowing from the seeming obligations and situations of the parties, and to require of him to bring home to the defendant the' existence of malice as to the true motive of his conduct. Beyond this extent no presumption can be permitted to operate, much less be made to sanctify the indulgence of' malice, however wicked, however express, under*141 the protection of legal forms. We conclude, then, that malice may he proved, though alleged to hare existed in the proceedings before a court or legislativo body or any other tribunal that may have been the appropriate authority for redressing the grievance represented to it; and that proof of express malice in any written publication, petition, or proceeding addressed to such tribunal will render that publication, petition, or proceeding libelous in its character, and actionable, and will subject the author and publisher thereof to all the consequences of libel. And we think that, in every case of a proceeding like those just enumerated, falsehood and the absence of probable cause will amount to proof of malice.”
It thus appears that the privilege is not absolute, that the action for such a libel will not be rejected, hut the plaintiff will have to show that the matter laid as libelous was false, and was published maliciously, and without probable cause. If the words complained of are such as impute crime to the plaintiff, and therefore, if spoken elsewhere than in the course of judicial proceedings, would import malice, and he actionable in themselves, requiring only proof of publication, yet, if they are applicable, and pertinent to the subject of the inquiry, they are not thereby rendered absolutely privileged, but are only privileged so far as to put on the plaintiff in the aetioh for the libel the burden of showing that they were false, and were uttered out of malice, and without probable cause. If the words were not pertinent and mal erial, they would be stricken out at the cost of the pleader on motion as impertinent and scandalous. If not subject to be thus summarily dealt with, because pertinent and material to the issue in the suit, it seems dear that a determination of that suit against the defendant would conclusively establish as to him the existence of probable cause. If it is suggested that in the original suit this issue may be involved with many other issues between the libeler and the defendant or between the libeler and other associated defendants, so as to protract that litigation to a great length, like the celebrated suit of Mrs. Myra Clark Gaines, which outlived two generations, and survived all of the original actors in it except the indomitable little woman who was the plaintiff, it may he answered: What if her original pleading had contained libelous matter, charged against one of the defendants, pertinent and material to the issues with that defendant in connection with which it was used; would she. the libeler, have ground of complaint that the defendants were not permitted to or did not sue her thereon until the close of her 50 years’ struggle to establish their truth? All of her time and means and energies were being taxed to their uttermost to establish at least probable cause for her averments. With more apparent plausibility it might he argued that it was a denial of justice to the libeled defendant to have to wait so long for Ms cause of action to mature. As already suggested, if the libelous matter was impertinent, the defendant had the right to have it stricken out on motion, and thus obtain judgment in his favor thereon; but the plaintiff would not he heard to say that he should set the statute of limitation running in her favor when she could, on her own motion, have the matter stricken out if she chose to abandon it.
Without further. consideration of analogies which appear to us io be so close as to lose their character of analogies and become
PARDEE, Circuit Judge, dissenting.
