53 Tenn. 395 | Tenn. | 1871
delivered the opinion of the court.
In a petition filed in the name of Barbara Maurer and Anna Maurer, minors, by their next friend, Jos. Ruohs, addressed to the Judge of the County Court of Hamilton county, and sworn to December 23, 1868, by Joseph Ruohs, the removal of the guardian of petitioners, was prayed for; and among the causes assigned for the removal, it was alleged that the guardian “has had in his family a girl, who is now probably over sixteen years of age, who came to live with him at about the age of thirteen years, and has remained in his family ever since. Her reputation is ruined, and she is now an example of shame and prostitution/’ Catherine Baker, claiming to be the girl thus alluded to, brought this suit, by her next friend, on the 28th of January, 1869; and in her declaration for libel, charges that she is a female under the age of twenty-one years; that she had no interest in, nor connection with, the proceeding in the County Court; that the matter published is false and defamatory; and that the words impute that she had been and was guilty of divers acts of fornication and adultery, and had become a common prostitute and harlot.
The defendant below filed a special demurrer to the declaration, in which he alleges, as cause of demurrer, that the declaration shows that the alleged
The plea of justification was stricken out on plaintiff’s motion, and the cause was afterwards submitted to a jury upon the plea of not guilty, and a notice, under the statute, of the real defense, substantially embodying the matter of the plea of justification. They found the issue in favor of the plaintiff, and assessed her damage sat $5,000. Judgment was rendered accordingly, and a new trial having been refused, the case was regularly brought to this court by the plaintiff in error.
On the trial of the cause, his Honor the Circuit Judge was requested to instruct the jury, in behalf of the defendant, that “if the words published and charged as constituting the libel were used in a judicial proceeding, it devolves on the plaintiff to prove express or actual malice fin the defendant before she can recover.”
In answer to this proposition the court, referring
In the consideration of this charge, it may be remarked that by s. 2493 of the Code of this State, the County Court has full power to take cognizance of all matters concerning minors and their estates, and that, without reference to more special provisions in the ensuing sections, the power to appoint and remove guardians is deducible from this section alone. Section 2520 makes it the duty of the grand jury to present all abuses, mismanagement and neglect of guardians, and s. 2521 provides that the court shall inquire into the same and make such rules and orders for the removal of guardians and appointment of others, as the court shall think fit, in certain cases therein enumerated, and among others, “ where he neglects to edu
It was also determined at an early period in this
It follows, therefore, that the plaintiff in error had a perfect right to present the petition in the names of the infants by him as their next friend, to be qualified to the truth of its contents, and that when the petition was so presented and filed, it became a regular judicial proceeding. It was not essential to its nature that he should become a party to the record. By acting in the character of next friend he made himself so far a party, that according to the long established practice of our chancery courts, he became liable for costs, and was, by analogy, so liable in the County Court.
Having the undoubted right to present the petition, the question recurs, was the reason assigned by the
His Honor therefore erred in instructing the jury that the communication was not privileged because the defendant in error was not a party to the record ; and in refusing to give the instruction requested — that express or actual malice must be shown on the part of the petitioner.
As this case must be remanded for a new trial, it is proper to state, briefly, so much of the law on the subject of privileged communication as is applicable to the facts appearing in the record.
In the case of Davis v. McNees, 8 Hum., 40, 43 “it appeared in proof that McNees was apprehended, and on trial before justices of the peace, on a charge of perjury, prosecuted by Davis. The magistrates consulted, and considered that the proof was not strong-enough. One of them observed to Davis, the prose
The question as to privileged communications was much more carefully and elaborately considered in Lea v. White, 4 Sneed, 111, 115. That was an action for libel in a, return to a writ of habeas corpus for two apprentices. Judge Harris, in delivering the opinion of the court, referred to the authorities, and took a distinction between communications conditionally or absolutely privileged — the former not amounting to defamation until it appears that the communication had its origin in actual malice in fact; the latter depending in no respect upon their bona fides, but upon the occasion, and the only question in regard to them being whether the matter, complained of was- pertinent to the occasion. In that case it was said, that “the proceedings connected with the judicature of the country
In the learned treatise already referred to, the subject of privileged communications and publications is considered at greater length and with much learning and accuracy, and the different classes of such publications are very fully treated of; but it is sufficient for the purposes of this case to adopt, as we do, two definitions of the author. “ By an absolutely privileged communication,” he says, “is not to be understood a publication for which the publisher is in nowise responsible ; but it means a publication in respect of which, by reason of the occasion upon which it is made, no remedy can be had in a civil action or libel. A conditionally privileged communication is a publication made on an occasion which furnishes' a prima facie legal excuse for the making of it, and which is privileged unless some additional fact is shown which so alters the character of the occasion as to prevent it furnishing a legal excuse”: Townshend on SI. and Lib., 248, s. 209.
Although there are authorities which would, perhaps, sustain the petition to the County Court as falling
We hold, therefore, that the allegations contained
In Lea v. White, 4 Sneed, 115, already cited, it was said that the question whether there be or be not reasonable or probable cause, may be for the jury or not, according to the particular circumstances of the case; and we but follow that decision in directing that this case shall be remanded and submitted to a jury under the instructions above indicated.
Other questions have been presented in argument, but we have deemed it sufficient to consider the controlling questions in the case.
Reverse the judgment and remand the cause.