Hunckel v. Voneiff

• Decision Date: 13 June 1888
• Parties: HUNCKEL ET AL. v. VONEIFF ET AL.
• Court: Maryland Court of Appeals

14 A. 500

69 Md. 179

HUNCKEL ET AL. v. VONEIFF ET AL.

Court of Appeals of Maryland

June 13, 1888

Appeal from superior court of Baltimore city.

Action for libel or slander by Katherine and Otto Hunckel against Louisa and Charles J. Voneiff. Demurrer to the declaration was sustained, and plaintiffs appeal.

ROBINSON and BRYAN, JJ., dissenting.

Argued before ALVEY, C.J., MILLER, STONE, BRYAN, ROBINSON, and McSHERRY, JJ.

Isidor Rayner, Wm. S. Bryan, Jr., and Geo. R Gaither, Jr., for appellants.

Ed. Higgins, for appellees.

MILLER J.

This is an action of libel or slander against a witness in an equity cause, whose testimony was written down by the examiner, returned to the court, and read at the hearing before the judge. The alleged libelous or slanderous statements are contained in the testimony thus taken. There was a demurrer to each of the two counts in the declaration, which the court sustained, and thereupon gave judgment for the defendants. From that judgment this appeal is taken. In the able arguments of counsel the whole field of the law on the question of privilege has been explored; and we believe all the decisions, as well as the opinions and dicta of eminent judges, have been cited and pressed upon our attention. It would be a tedious task to review them in detail, and a hopeless one to attempt to reconcile them. The question is a new one in this state. No precedent for such an action has been found in our reports or judicial records, and we believe this is the first attempt to bring one since a court of justice was first established in the colony of Maryland,--a period of more than two centuries. This fact, while it may not be conclusive against the right to maintain the action, certainly leaves us free to follow and adopt those authorities which state the law in accordance with what, in our judgment, the administration of justice and a sound public policy demand. The case now before us is not that of an advocate, but of a witness; and, in our opinion, it is of the greatest importance to the administration of justice that witnesses should go upon the stand with their minds absolutely free from apprehension that they may subject themselves to an action of slander for what they may say while giving their testimony. Mr. Townshend, in his book on Slander and Libel, well says: "The due administration of justice requires that a witness should speak, according to his belief, the truth, the whole truth, and nothing but the truth, without regard to the consequences; and he should be encouraged to do this by the consciousness that, except for any willfully false statement, which is perjury, no matter that his testimony may in fact be untrue, or that loss to another ensues by reason of his testimony, no action for slander can be maintained against him. It is not simply a matter between individuals; it concerns the administration of justice. The witness speaks in the hearing and under the control of the court; is compelled to speak, with no right to decide what is immaterial; and he should not be subject to the possibility of an action for his words." Townsh. Sland. & Lib. § 223. But there is more substantial authority for the absolute character of the privilege. In the standard work of Starkie on Slander, it is laid down, as the result of the English decisions, that "witnesses, like jurors, appear in court in obedience to the authority of the law, and therefore may be considered, as well as jurors, to be acting in the discharge of a public duty; and, though convenience requires that they should be liable to a prosecution for perjury committed in the course of their evidence, or for conspiracy in case of a combination of two or more to give false evidence, they are not responsible, in a civil action, for any reflections thrown out in delivering their testimony." 1 Starkie, Sland. 262. This statement of the law has been frequently quoted with approval by the English courts, and in some instances by courts and text writers in this country. Terry v. Fellows, 21 La. Ann. 375. In support of the absolute character of the privilege, a long list of English decisions, ancient and modern, has been cited. Without referring to the earlier ones, we mention some of those decided in more recent times, which have special reference to the case of parties and witnesses: Revis v. Smith, 86 E. C. L. 126; Henderson v. Broomhead, 4 Hurl. & N. 568; Kennedy v. Hilliard, 10 Ir. C. L. 195; Dawkins v. Rokeby, 4 Fost. & F. 806; Dawkins v. Rokeby, L. R. 8 Q. B. 255, on appeal in the house of lords, L. R. 7 H. L. 744.

In these cases, WILLES, COLERIDGE, C.J., COCKBURN, C.J BLACKBURN, KELLY, C. B., CRESWELL, Lord CAIRNS, and other eminent jurists have again and again expressed the opinion that the privilege of a witness should be absolute, have pointed out the great benefit of such privilege to the administration of justice, and have deprecated in strong terms the evil consequences they thought would ensue if witnesses were placed under any intimidation, or the fear of being involved in litigation by reason of what they might say when under examination. In Dawkins v. Rokeby the judges were called in, and gave unanimously an answer to the question put to them by the house of lords, in which they say: "A long series of decisions has settled that no action will lie against a witness for what he says or writes in giving evidence before a court of justice. This does not proceed on the ground that the occasion rebuts the prima facie presumption that words disparaging to another are maliciously spoken or written. If that were all, evidence of express malice would remove this ground. But the principle, we apprehend, is that public policy requires that witnesses should give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice. The authorities, as regards witnesses in the ordinary courts of justice, are numerous and uniform." After this decision the case of Seaman v. Netherclift arose, which was tried before Chief Justice COLERIDGE at nisi prius, and afterwards decided by him and BRETT, J., in 1 C. P. Div. 540, and subsequently by the court of appeals in 2 C. P. Div. 53. The judges who heard the case on appeal were COCKBURN, C.J., BRAMWELL and AMPHLETT, JJ.; and they disposed of it at once. COCKBURN, C.J., said: "If there is anything as to which the authority is overwhelming, it is that a witness is privileged to the extent of what he says in course of his examination. Neither is that privilege affected by the relevancy of what he says; for then he would be obliged to judge of what is relevant or irrelevant, and questions might be and are constantly asked which are not strictly relevant to the issue. But that, beyond all question, this unqualified privilege extends to a witness, is established by a long series of cases, the last of which is Dawkins v. Rokeby, after which to contend to the contrary is hopeless. It was there expressly decided that the evidence of a witness with reference to the inquiry [the inquiry referred to being a military court of inquiry instituted to investigate the conduct of an officer] is privileged, notwithstanding it may be malicious; and to ask us to decide otherwise is to ask what is beyond our power. But I agree that if, in this case, beyond being spoken maliciously, the words had not been spoken in the character of a witness, or not while he was giving evidence in the case, the result might have been different; for I am very far from desiring to be considered as laying down as law that what a witness states altogether out of the character of a witness, or what he may say de...