98 P.2d 711 | Or. | 1940
This is an action to recover damages resulting from an alleged libel published of and concerning the plaintiff. A demurrer to the complaint was sustained on the ground that no cause of action was alleged. On refusal of the plaintiff to plead further, a judgment was entered dismissing the action. Plaintiff appeals.
The plaintiff in his complaint alleges:
"That plaintiff is a citizen and resident of Lakeview, County of Lake, State of Oregon, and is now, and was, during all the times herein mentioned, a regularly licensed attorney at law in the State of Oregon, with offices in Lakeview, Oregon.
"That on or about the 10th day of February, 1931, Harry S. Stone was appointed by the County Court of Lake County, Oregon, Executor of the Last Will and Testament of Lewis A. Carriker, Deceased, and held such position until the 26th day of February, 1935, when he resigned as such Executor; that on the 26th day of February, 1935, he filed with County Clerk of Lake County, Oregon, his final account and report as Executor of said estate.
"That during the time between the ____ day of June, 1933, and the said 26th day of February, 1935, plaintiff herein was attorney for the said Harry S. Stone as Executor of said estate.
"That on the 27th day of February, 1935, W.W. Switzer was appointed by the County Court of Lake County, Oregon, Administrator with the Will Annexed of the Last Will and Testament of Lewis A. Carriker, Deceased, and ever since said time the said W.W. Switzer has been, and now is, the duly qualified and acting Administrator of said estate. *514
"That on or about the 27th day of February, 1935, the defendant herein became attorney for the said W.W. Switzer as Administrator of said estate, and ever since said date the said defendant has been, and now, is acting as attorney for the said W.W. Switzer as such Administrator.
"That on the 15th day of June, 1935, the said defendant caused to be filed with the County Clerk of Lake County, Oregon, objections in writing to the final account and report of the said Harry S. Stone Executor resigned of the Last Will and Testament of the said Lewis A. Carriker, Deceased, and in said list of objections so filed, among other things, it is alleged that the said Harry S. Stone appropriated money and property of the said estate to his own personal use, and it is further alleged in various and divers places in said list of objections that the said Harry S. Stone stole various articles or items of personal property from the said estate while he was acting as such Executor.
"That in the list of objections so filed by the said defendant, particular objection was made to the allowance of an item of $249.50 which had been paid by the said Harry S. Stone to plaintiff on account of attorney's fees for services performed for said Harry S. Stone, as Executor of said estate; and in filing said objection the defendant caused the following libel to be published of and concerning this plaintiff to-wit:
`That for a sixteenth objection to the final account and administration of Harry S. Stone, executor resigned, the objectors allege:
`Wherefore, the objectors pray that a decree be entered upon the final account of the executor resigned, commanding and requiring him to refund to the estate the said sum of $249.50 of estate funds paid to the said T.S. McKinney, on February 23, 1935, with interest thereon at the rate of six per cent per annum until paid.' *518
"That the aforesaid libel is false and malicious, and the whole thereof was maliciously published of and concerning this plaintiff by the said defendant herein.
"That immediately upon the filing of the aforesaid objections to the said final account of Harry S. Stone, the same was placed in the files of the probate proceedings of the Estate of Lewis A. Carriker, deceased, and thereupon said document became a permanent record in the office of the County Clerk of Lake County, Oregon, subject to inspection by county officials, attorneys, and all other persons, and said document has been read by county officials, attorneys, and various other persons, and by reason thereof this plaintiff has suffered great mental anguish, and has been greatly injured in his good name, his reputation, and his profession; and plaintiff alleges that the said publication is libelous per se and that he has been damaged in the sum of $25,000.00 because of the publication of said libel."
It appears from the face of the complaint that the alleged defamatory matter contained in the written objections to the final account was made in a court of competent jurisdiction engaged in the administration of an estate. If the objection filed with the county clerk was relevant and pertinent to the issue before the court for decision, it is absolutely privileged and no action based thereon can be maintained against the defendant, who was employed as attorney in the administration of the estate. It is wholly immaterial whether the statements made against the allowance of attorney's fees to plaintiff are true or false. Neither is it material whether the defendant in making such statements was actuated by good or bad motives. The vital question is whether they were pertinent and relevant. The law applicable herein is so well settled and established in this jurisdiction and elsewhere that there is no need of encumbering the reports by a restatement *519
thereof. Irwin v. Ashurst,
Whether the matter contained in the objections to the final account was pertinent or relevant is a question of law for the court to decide. In determining whether such matter is pertinent or relevant, courts are liberal and hold the privilege "embraces anything that may possibly be pertinent". Andrews v.Gardiner,
Certainly, the beneficiaries of the estate were interested parties and had the right to inquire as to the expenditures by the executor in the administration of the estate. The defendant as attorney had the legal right to file objections to the final account. If the statements made against the allowance of the attorney's fees in question were true, it was a proper matter for the court to consider in determining whether to approve the final account. Clearly, the matter of which the plaintiff complains was pertinent and relevant to the issues, and it so appears from the face of the complaint.
It follows that the trial court was right in sustaining a demurrer to the complaint.
The judgment dismissing the action is affirmed.
RAND, C.J., and LUSK and BAILEY, JJ., concur. *520