Schultz v. Strauss, 106 N.W. 1066

Schultz v. Strauss

106 N.W. 1066

Wis.

1906

Check Treatment

Siebeoeee, J.

It is сontended that the order appealed from should be reversed because the subject concerning which *328the court forbids inquiry to be made is not witbiu the field of privilege. Plaintiff instituted this action to recover damages, upon the ground that he has been seriously defamed in his character and standing, and that the law awards a right to recover compensation for the injury. The order appealed from is specific in forbidding any disclosure of statements and communications made by the defendant to the grаnd, jury in the course of their proceedings or to the district attorney and his assistants in their official capacities. Appellant’s counsel frankly admits this to be the effect of the order but challenges its validity, and asserts that statements and communications so made to a district attorney or a grand jury are not privileged upon the grounds clаimed, namely, that the statements and communications were made in the course of judicial procedure or that the secrecy respecting grand jury proceedings (as to such statements and communications) must be maintained. The statute providing discovery in proceedings as instituted by plaintiff is framed upon the idea that a plaintiff rеquires the aid of this remedy to enable him to frame his complaint for the cause of action arising out of the transactions concerning which he seeks discovery. It is therefore essential to inquire at the very threshold of the case: Has plaintiff any right in the law to recover compensation, as for a defamation, on account of any statement or communication the defendant may have made to the grand jury or the district attorney in his official capacity? It is well recognized by numerous adjudications “that words spoken in the course of judicial proceedings, though they are such as impute crime to another, and therefore, if spoken elsewhere, would import malice and be actionable in themselves, are not actionable if they are applicable and pertinent to the subject of inquiry.” Soar v. Wood, 3 Met. 193. Erom an early time this rule lias-had support and it has been adhered to in the decisions of this court, as is evidenced by the following cases: Jennings v. Paine, 4 Wis. 358; Calkins v. Sumner, 13 Wis. 193; Larkin *329v. Noonan, 19 Wis. 82. This appears to be the accepted doctrine of the common law in tbis country, and it ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is well entrenched by the decisions of many courts, among which are the following: Acre v. Starkweather, 118 Mich. 214, 76 N. W. 379; Hart v. Baxter, 47 Mich. 198, 10 N. W. 198; McDavitt v. Boyer, 169 Ill. 475, 48 N. E. 317; Blakeslee v. Carroll, 64 Conn. 223, 29 Atl. 473; Lauder v. Jones, 13 N. Dak. 525, 101 N. W. 907; Kidder v. Parkhurst, 3 Allen, 393; Rice v. Coolidge, 121 Mass. 393; Mower v. Watson, 11 Vt. 536.

The exemption from liability for words spokеn on a privileged occasion is not the same privilege recognized in the law as pertaining to confidential communications, as between attorney and сlient and other like confidential relations, but they are privileged upon the ground that they furnish no ground of action for the alleged injury. The inquiry then is: Were the words complainеd of spoken in the course of judicial proceedings and were they pertinent and related to the subject of inquiry ? The proceedings of a grand jury are unquestionаbly judicial in character (Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195), and were expressly so declared' by this court in Larkin v. Noonan, 19 Wis. 82, where the court quotes approvingly the language used in the case of Thorn v. Blanchard, 5 Johns. 508, to the effеct that in certain •classes of cases no prosecution for defamation will lie for statements and communications made in the presence of a grand jury and in proceedings in the regular course of justice, upon the ground that “the policy of the law here steps in and controls the individual rights' of redress. The freedom of inquiry, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the right of exposing malversation in public men and public institutions to the proper authority, the importance of punishing offenses, and the danger of silencing inquiry and of affording impunity tо guilt, have all combined to shut the door against prosecutions for libels in cases, of that or of ¡analogous nature.” The case of Calkins v. Sumner, 13 Wis. *330193, is not in conflict with this decision. The cоurt states in its opinion, commenting on the erroneous rule submitted by the lower court to the jury:

' “The rule is, that if what is said or written be pertinent and material to the cause or subject matter of inquiry, the speaker or writer is not liable to an action, however much he may be actuated by hatred or ill-will.” '

Whatever defendant may have stated to the grand jury or the district attorney must be held pertinent and material from the very nature of the complaint now made against defendant for damages. It is not disputed but that the injury comрlained of arises out of the transaction resulting in the indictment by the grand jury, which it is charged that the defendant falsely and maliciously instigated. Erom this it must follow that the alleged defamаtory matter was applicable and pertinent to the subject under consideration by the grand jury, and that it was communicated to them in the course of a judicial prоceeding. The order appealed from forbids disclosure of statements and communications so made to the grand jury and to the district attorney who were investigating this subjеct, and these statements and communications must be held to have been made on an “occasion of privilege,” and to be therefore not actionable in the law.

This right of exemption from liability for defamatory words spoken under such circumstances has been regarded as of such importance in the administration of publiс affairs, for reasons of public safety and for the security of the individual from harassing and unjust prosecutions, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that the people of the various states have guarded it by сonstitutional provisions protecting the liberty of speech. It is embodied in sec. 3, art. I, of the §tate constitution. Mr. Cooley, commenting on these provisions in his Constitutional Limitations, states:

“It. is to be observed of these several provisions that they recognize certain rights as now existing, and seek to protect and perpetuate them by dеclaring that they shall not bé *331abridged, or tbat they shall remain inviolate. They do not assume to create new rights, but their purpose is to protect the citizen in the enjoyment of those already possessed. We are at once, therefore, turned back from these provisions to preexisting law, in order to ascertain what the rights are which are thus protected, and what is the extent of the privileges they undertake to assure.” Cooley, Const. Lim. (7th ed.) 596 et seq.

Among the rights so protected by the constitutional provisions he enumerates and discusses the privileges accorded to statements made by witnesses and counsel in the course of' judicial proceedings for bringing offenders to justice, and the furnishing of preliminary information to officers charged with the duty of enforcing the law against offenders, and these are held to come within the rule of privileged оccasions. Id. 629 et seq. Statements made to police and prosecuting officers-with the design of originating and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍forwarding such proceedings are declared by the adjudicаtions to be within the rule. Grimes v. Coyle, 6 B. Mon. 301; In re Quarles and Butler, 158 U. S. 532, 15 Sup. Ct. 959; Shinglemeyer v. Wright, 124 Mich. 230, 82 N. W. 887; Morrow v. Wheeler & W. Mfg. Co. 165 Mass. 349, 43 N. E. 105; Wright v. Lothrop, 149 Mass. 385, 21 N. E. 963; Gabriel v. McMullin, 127 Iowa, 426, 103 N. W. 355; Vogel v. Gruaz, 110 U. S. 311, 4 Sup. Ct. 12. Applying these principles to the facts and circumstances alleged for the purpose of obtaining discovery in the instant case, it necessarily follows that plaintiff has no cause of action arising out of the transaction participated in by the defendant before the grand jury; nor has he a causе of action against defendant by reason of any statements defendant made to the-district attorney or his assistants in their official capacities. The order appealed from properly prohibited the court commissioner from inflicting the threatened punishment as for a contempt, and justly restrained him from causing disclosure-in the course of the discovery proceedings of the transactions involved in the inquiries propounded to defendant.

*332It is urged that the doctrine of the decisions in the cases of Murphy v. State, 124 Wis. 635, 102 N. W. 1087, and Havenor v. State, 125 Wis. 444, 104 N. W. 116, recently made by this court, is a modification, by a partial abrogation, of the common-law rule pertaining to the secrecy of grand jury proceedings, and that such modification permits disclosure of such proceedings for the purposes now demanded. We find no basis for this claim and must re-affirm what was stated in the Havenor Gase, that the secrecy of grand jury proceedings must be maintained within the limits prescribed by the statutes and established by the decisions of the courts, for reasons •of public policy, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to prоmote the effectual enforcement of the ■criminal law. This question is not, however, of importance in this case in view of the considerations above stated, which here control.

By the Court. — Order affirmed.