Buschbaum v. Heriot

Decision Date09 February 1909
Docket Number1,212.
Citation63 S.E. 645,5 Ga.App. 521
CourtGeorgia Court of Appeals

Syllabus by the Court.

Where from the nature of the judicial proceeding or circumstances of the investigation, testimony may be submitted by affidavit, the affiant is a witness and is protected by the same privilege and to the same extent as if he had testified orally.

[Ed Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 117-121; Dec. Dig. § 38. [*]]

The circumstances under which testimony is given determine whether the privilege of a witness is absolute or conditional. Generally, the testimony delivered in a judicial proceeding and before a court with jurisdiction to consider the questions at issue is absolutely privileged. No actionable liability attaches to a witness for any statement contained in his testimony; no matter how false or malicious that testimony may be, unless the witness, without being asked, volunteers a false and malicious defamatory statement which is not pertinent, and which the witness neither believes to be true nor has any sufficient reason to believe to be material. The answers of a witness in direct response to questions by counsel (which have not been forbidden by the court) are absolutely privileged, and, though the statements of the witness in testimony thus adduced be not only defamatory and malicious but knowingly false, a prosecution for perjury is the only redress provided by law.

[Ed Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 117-121; Dec. Dig. § 38. [*]]

In an interlocutory hearing upon an application for injunction where the allegations of fact in the petition are verified by the oath of the petitioner himself, an affidavit which contains only an impeachment of the veracity of the petitioner is pertinent and material; and especially is this true if the respondent to the petition has filed, under his oath, an answer denying the statements of fact contained in the petition. It was not alleged in this case that the allegations of fact in the petition were admitted in the answer thereto.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 117-121; Dec. Dig. § 38. [*]]

Error from City Court of Savannah; Davis Freeman, Judge.

Action by A. Buschbaum against G. W. Heriot. Judgment for defendant, and plaintiff brings error. Affirmed.

A. Buschbaum brought an action for $5,000 damages against G. W. Heriot, alleging that the defendant, knowing the plaintiff's good name for integrity, honesty, and truthfulness, did willfully, falsely, and maliciously, and with intent to injure him in his business, make a sworn affidavit to be used as evidence in a case of injunction, relief, and damages then pending between the plaintiff and the Advocate Publishing Company, in which affidavit the defendant swore concerning petitioner as follows: "Personally appeared G. W. Heriot, who, after being first duly sworn, says that he makes this affidavit for the purpose of having the same used as evidence in the above-stated case. Deponent says that he knows A. Buschbaum, the plaintiff above named, and knows his reputation in the community as to truthfulness, and from such reputation deponent says that he would not believe the said Buschbaum upon oath. [Signed] Geo. W. Heriot, M. D." It is alleged by innuendo that the defendant, by the foregoing affidavit, intended: (a) To brand the petitioner as a common and notorious liar and a man unworthy of belief even upon his oath; and (b) to charge the petitioner with the crime of perjury, in that the affidavit of said defendant was made in response to the suit by petitioner for injunction, relief, and damages filed in the superior court of Chatham county, Ga., against the said Advocate Publishing Company for the purpose of enjoining the operation of certain printing presses, and for damages accruing to him and his property in connection therewith, said petition being sworn to by petitioner. It is further alleged that the affidavit was made and sworn to before an officer authorized to administer oaths and was published and communicated by delivery to the attorney for the defendant, and that it was published by being read in open court before the judge of the superior court, in the presence of the court officers, witnesses, and spectators. It is further alleged that "the libelous words therein set out, presented as evidence in a court of public justice and intending to brand petitioner as a common and notorious liar, and to charge him with the crime of perjury, a crime involving moral turpitude, was done by said defendant with willful, malicious, and deliberate intent to vex, embarrass, harass, and impoverish petitioner in his good name, reputation, and trade, and to hold him up among his friends, acquaintances, and the citizens of the community at large, as an object of contempt, hatred, and ridicule," and that the publication of said libelous affidavit in a court of public justice is and was intended as an extreme aggravation of the injury to the petitioner and has caused him much mental distress. The defendant having filed a demurrer to the petition, the petitioner amended by alleging: That the affidavit of Heriot was impertinent, irrelevant, and immaterial to the issues then before the court, and that, upon the presentation thereof as evidence in said cause, the plaintiff, through his attorneys, orally objected thereto upon the grounds above stated, and made an oral motion that said affidavit be ruled out and not considered; that thereupon said presiding judge orally ruled out the said affidavit and orally declined to consider it in determining the issues then before the court upon the grounds so stated; that said affidavit was not made bona fide in the belief that it was pertinent or relevant to the issues in said cause, and was for the sole purpose of maliciously defaming the good name and reputation of petitioner. Plaintiff's declaration was also amended by a second count, which alleges practically the same facts as those set out in the first, except that it treats the libelous affidavit as published and communicated at the time it was signed before the notary public and delivered to the attorney for the Advocate Publishing Company. Heriot demurred generally to the petition both as originally filed and as finally amended, upon the ground that no cause of action is set forth, and that the petition shows upon its face that the affidavit purporting to have been made by the defendant was made in a judicial proceeding and was therefore a privileged communication, and no action therefor could lie against the defendant. The judge sustained the demurrer and dismissed the petition.

Alexander & Edwards, for plaintiff in error.

W. W. Gordon, Jr., and E. S. Elliott, for defendant in error.


The question raised by the demurrer is one which has been much discussed by text-writers and judges. In the first place, whether one who makes affidavit in the course of an interlocutory judicial proceeding is to be classified as witness is one division of the question; and whether the privilege of a witness is absolute under all circumstances, or may, under certain circumstances, amount only to conditional privilege, is a second division of the question presented for our determination. It will be seen from a reading of the opinion in Hendrix v. Daughtry, 3 Ga.App. 481, 60 S.E. 206, that we went no further in that case than to decide that the position of the witness is one of absolute privilege where the answers are directly responsive to questions which are material, or the immateriality of which is waived by failure to object, because that was the only question presented for our determination. We referred, however, to the fact that the Code deals with the subject of conditional privilege only, and on this account we strongly intimated our opinion (based upon the fact that witnesses in most jurisdictions have been accorded absolute privilege and are not referred to in section 3840 or elsewhere in our Code [Civ. Code 1895]) that the privilege of a witness is absolute unless he testifies to that which is immaterial and impertinent, and, even then, if the answers are elicited by questions propounded by counsel.

We will first consider, however, whether, according to the allegations of the petition. Heriot is to be considered as a witness in the sense in which that word is ordinarily used as denoting one who testifies either in person or by deposition on the trial of a case. We not only think that the same considerations of public policy and absolute justice which extend absolute privilege to a witness upon the stand should control in dealing with one who testifies by affidavit, but we are of the opinion that this view is confirmed in the language of Justice Hall, delivering the opinion in Francis v. Wood, 75 Ga. 648. It may not appear, at first blush that the point now before us was necessary to be decided in the Francis Case, inasmuch as the affiant in that case was swearing to an affidavit which was the basis of a criminal prosecution, and it may...

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3 cases
  • Cent. Of Ga. Ry. Co v. Moore
    • United States
    • Georgia Court of Appeals
    • February 9, 1909
  • Central of Georgia Ry. Co. v. Moore
    • United States
    • Georgia Court of Appeals
    • February 9, 1909
  • Buschbaum v. Heriot
    • United States
    • Georgia Court of Appeals
    • February 9, 1909
    ...63 S.E. 6455 Ga.App. 521BUSCHBAUM .v.HERIOT.(No. 1, 212.)Court of Appeals of Georgia.Feb. 9, 1909. 1. Libel and Slander (§ 38*) — Privileged Communications—Judicial Proceedings-Affidavits. Where, from the nature of the judicial proceeding or circumstances of the investigation, testimony may......

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