Plaintiff recovered a verdict for general and punitive damages for defamation. Defendant appeals. Defendant’s principal assignment of error is that the trial court erred in denying its motion for directed verdict based upon the ground that the defendant is an attorney, his communication was made in conjunction with a judicial proceeding, and, therefore, it is absolutely privileged.
The parties, former partners, have waged numerous lawsuits against one another. Plaintiff owed Baker Production Credit Association (PCA) at least $140,000, which was secured by a farm. Defendant was a guarantor of that debt. In a prior partnership dissolution suit the trial court decreed that the plaintiff would pay that debt; if he did not and the defendant was required to pay, the plaintiff would convey part of his interest in the farm to defendant. Defendant was attempting to have one Dale Fackrell invest $140,000 to pay PCA in exchange for an interest in the farm.
The debt to PCA was not paid; PCA declared the obligation in default and gave notice it was selling the farm within 60 days unless the default was corrected. Defendant replied to PCA’s default notice with a proposal to pay the $140,000, indicating that Fackrell might furnish the funds. Copies were sent to plaintiff’s attorney, Fackrell and others. Plaintiff’s attorney sent a letter to defendant on approximately the same date. Plaintiff’s attorney demanded that defendant either pay the $140,000 or transfer his interest in the farm to plaintiff so he could obtain financing to pay PCA. He also wrote that the plaintiff would be filing lawsuits against defendant for failure to perfect some option rights in other property and defendant’s alleged failure to contribute to payment of another debt.
Defendant’s reply to this letter contains some of the alleged libelous matter. He wrote that plaintiff "seems to possess a very permissive conscience,” and "If he can *6 just keep the 'Mr. Hyde’ part of his character locked in a closet, I can deal with 'Dr. Jekyll.’ ” Defendant also wrote in detail about the problems of satisfying the PCA debt, the charged failure by defendant to perfect options, and the other matters referred to in plaintiff’s attorney’s letter. Copies were sent to Fackrell, PCA and several attorneys.
Defendant had represented himself in the past lawsuits and was continuing to represent himself in all matters with plaintiff. The principal issue at trial and on appeal was whether defendant wrote this letter in his capacity as attorney or as a party-businessman. Solving this issue will not decide the case.
This court has recognized the absolute privilege accorded communications made by attorneys in judicial proceedings.
See McKinney v. Cooper,
"* * * It [privilege] rests upon the same idea, that conduct which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff’s reputation. *7 The interest thus favored may be one of the defendant himself, of a third person, or of the general public. If it is one of paramount importance, considerations of policy may require that the defendant’s immunity for false statements be absolute, without regard to his purpose or motive, or the reasonableness of his conduct. * * * ” Prosser, Torts § 114, p 776 (4th ed 1971).
We stated the same reasoning in a different fashion in
Ramstead v. Morgan, supra
(
If we assume that defendant’s letter was sufficiently connected to a judicial proceeding so as to be privileged insofar as its communication to plaintiff’s attorney, or the parties’ creditors, we are of the opinion that the communication to a potential investor, Fac-krell, cannot be privileged. Neither the past decree nor the new lawsuits directly involved Fackrell. He was indirectly involved because if he invested defendant probably would be able to exercise an alternative granted him in the decree and might be able to more readily pay an obligation which plaintiff claimed defendant owed. These possibilities, important to defendant as they might be, have no direct relationship to the judicial proceeding. Thus we cannot say that they are so important to society that defendant, or *8 any person in his position, should be granted immunity from malicious, untruthful statements, if they be such.
The absolute privilege accorded attorneys and litigants for communications made in connection with judicial proceedings generally concern statements made in the proceeding itself. Statements in affidavits filed in divorce proceedings:
Strycker v. Levell and Peterson, supra
(
In
Chard v. Galton, supra
(
The defendant cited Theiss v. Scherer, 396 F2d 646 (6th Cir 1968). There, an attorney allegedly defamed plaintiff in a letter the defendant-attorney sent to plaintiff’s attorney to the effect that plaintiff was attempting to blackmail defendant by filing a will contest to prevent him from serving as trustee. Copies were sent to four persons who had an interest in the estate. The court, without comment, held this interest was enough to make the communication to the four persons privileged. Assuming the decision was correct, Fackrell had no interest as close and direct as that of the four persons in Theiss.
*9
Defendant also contends that plaintiff introduced no evidence that the libelous statements subjected him to hatred, contempt or ridicule, or tended to diminish his esteem, respect or goodwill in the community. The court determines whether the communication is capable of subjecting the plaintiff to hatred, contempt or ridicule, or tended to diminish his esteem, respect or goodwill in the community.
Farnsworth v. Hyde,
Affirmed.
Notes
The defendant did not contend the jury could not award punitive damages. See
Wheeler v. Green,