Carpenter v. Grimes Pass Placer Mining Company

• Decision Date: 24 February 1911
• Parties: FELIX G. CARPENTER, Appellant, v. GRIMES PASS PLACER MINING COMPANY et al., Respondents
• Court: Idaho Supreme Court

114 P. 42

19 Idaho 384

FELIX G. CARPENTER, Appellant, v. GRIMES PASS PLACER MINING COMPANY et al., Respondents

Supreme Court of Idaho

February 24, 1911

PLEADING-LIBEL-MALICE.

(Syllabus by the court.)

1. Whatever a party to an action may allege in his pleading as a cause of action or ground of defense that is pertinent or material to the charge made, or against which he is defending, can never give rise to a right of action for libel.

2. The ends of justice and the public good can be best served by allowing litigants to freely plead any material matter in a judicial proceeding to which they are parties, holding them accountable only for defamatory matter which is neither pertinent nor material to the issue under inquiry.

3. The privilege of freely pleading matters constituting causes of action or grounds of defense must be exercised in good faith and the courts will determine, as a matter of law, whether the matter pleaded was in fact pertinent or material to the issue joined.

4. Whatever a litigant may properly plead as a cause of action or ground of defense as relevant or material to the issue, he may plead with or without malice, and in such case the intent with which he pleaded the same cannot be inquired into or become an issue in an action for libel.

APPEAL from the District Court of the Third Judicial District, in and for the County of Ada. Hon. Fremont Wood, Judge.

Action by plaintiff for libel. Judgment for defendant, and the plaintiff appealed. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

Jackson & Taylor, for Appellant.

Sec. 47 of the California code, prior to amendment of 1874 privileged publication made in judicial proceedings, yet in the case of Wilson v. Fitch, 41 Cal. 383, decided prior to such amendment, the court says: "In order to hold a person responsible for making any one of the above privileged communications, it is necessary to prove express malice, while the law will exempt a person from liability for words spoken or written under circumstances which call for such expressions. Yet, to take advantage of like circumstances to vent private ill-will and design to injure justly makes the person so acting chargeable for what he does. (In the case at bar express malice is admitted.) ( Wyatt v. Buell, 47 Cal. 624.)

"Contrary to the doctrine of the English courts, the American courts generally have established the rule that matter inserted in a pleading in a civil action is not absolutely, but only conditionally or qualifiedly, privileged. That is, the alleged libelous matter is privileged when, and only when, it is relevant to or connected with the subject matter of the litigation." (Life Ins. Co. v. Thomas, 83 F 803, 28 C. C. A. 96; King v. McKissick, 126 F. 215; Harlow v. Carroll, 6 App. Cas. D. C. 128; Myers v. Hodges, 53 Fla. 197, 44 So. 357; Conley v. Key, 98 Ga. 115, 25 S.E. 914; Ash v. Zwietusch, 159 Ill. 455, 42 N.E. 854; Hawk v. Evans, 76 Iowa 593, 14 Am. St. 247, 41 N.W. 368; Monroe v. Davis, 118 Ky. 806, 82 S.W. 450; Dunn v. Southern Ins. Co., 116 La. 431, 40 So. 786; Sherwood v. Powell, 61 Minn. 479, 52 Am. St. 614, 63 N.W. 1103, 29 L. R. A. 153; Jones v. Brownlee, 161 Mo. 258, 61 S.W. 795, 53 L. R. A. 445; Garr v. Selden, 4 N.Y. 91, reversing 6 Barb. (N. Y.) 416; Lanning v. Christy, 30 Ohio St. 115, 27 Am. Rep. 431; Metzler v. Romine, 9 Pa. Co. Ct. 171; Crockett v. McLanahan, 109 Tenn. 517, 72 S.W. 950, 61 L. R. A. 914; Abbott v. Bank, 20 Wash. 552, 56 P. 376.)

"This qualification of the English rule is adopted in order that the protection given to individuals in the interest of an efficient administration of justice may not be used as a cloak from beneath which private malice may be satisfied." (McLaughlin v. Cowley, 127 Mass. 319.)

If respondents want the benefit of a right of privilege, they must claim it as a matter of defense, or, at least, set out such claim by special demurrer. (Byam v. Collins, 111 N.Y. 143, 7 Am. St. 726, 19 N.E. 75, 2 L. R. A. 129.)

K. I. Perky and D. E. Brinck, for Respondents.

Absolute privilege is a bar to any action whatever, regardless of malice or falsity in the publication; and if in the present complaint an absolutely privileged occasion is shown, the allegations of falsity and malice are immaterial. (25 Cyc. 375, 379, 380; Newell, Defamation, Slander and Libel, p. 419, sec. 16; Atlanta News Pub. Co. v. Medlock, 123 Ga. 714, 51 S.E. 756, 3 L. R. A., N. S., 1139; Hyde v. McCabe, 100 Mo. 412, 13 S.W. 875.)

The law in England and in some of the American states is that any publication in the course of judicial proceedings, including, at least, testimony of witnesses, arguments of counsel, and pleadings, is absolutely privileged; and that nothing spoken or written therein, however false or malicious, will support an action for libel. (25 Cyc. 379, n. 64; Starkie, Slander & Libel, secs. 213, 196; Townshend, Slander & Libel, 4th ed., sec. 221; Newell, Defamation, p. 424, sec. 27, p. 460, sec. 50; Runge v. Franklin, 72 Tex. 585, 13 Am. St. 833, 10 S.W. 721, 3 L. R. A. 417; Bartlett v. Christhilf, 69 Md. 219, 14 A. 518; Wilkins v. Hyde, 142 Ind. 260, 41 N.E. 536.)

The majority of the American states have, however, by decision of their highest courts, limited the English rule, in the single respect that the publication must either be pertinent and material to the issues in the action where published, or must have been reasonably supposed by its author to be so pertinent and material. (Lawson v. Hicks, 38 Ala. 279, 81 Am. Dec. 49; Wilson v. Sullivan, 81 Ga. 238, 7 S.E. 274; Strauss v. Meyer, 48 Ill. 285; Smith v. Howard, 28 Iowa 51; Monroe v. Davis, 118 Ky. 806, 82 S.W. 450; McLaughlin v. Cowley, 127 Mass. 316; Hartung v. Shaw, 130 Mich. 177, 89 N.W. 701; Sherwood v. Powell, 61 Minn. 479, 52 Am. St. 614, 63 N.W. 1103, 29 L. R. A. 153; Jones v. Brownlee, 161 Mo. 258, 61 S.W. 795, 53 L. R. A. 445; Nissen v. Cramer, 104 N.C. 574, 10 S.E. 676, 6 L. R. A. 780; Crockett v. McLanahan, 109 Tenn. 517, 72 S.W. 950, 61 L. R. A. 914; Mower v. Watson, 11 Vt. 536, 34 Am. Dec. 704; Abbott v. National Bank, 20 Wash. 552, 56 P. 376; Johnson v. Brown, 13 W.Va. 71.)

Where a complaint in libel discloses on its face that the alleged libel was published in the course of judicial proceedings, it must be shown further that the matter published was neither pertinent nor reasonably supposed to be pertinent to the issues in the proceeding. The occasion being shown by the complaint, a presumption of absolute privilege is raised, and the plaintiff must allege and prove the facts removing the privilege. (Cooper v. Phipps, 24 Ore. 357, 33 P. 985, 22 L. R. A. 836; Mower v. Watson, 11 Vt. 536, 34 Am. Dec. 704; Johnson v. Brown, 13 W.Va. 71, 109; Monroe v. Davis, 118 Ky. 806, 82 S.W. 450; Hartung v. Shaw, 130 Mich. 177, 89 N.W. 701; Ash v. Zwietusch, 159 Ill. 455, 42 N.E. 854.)

AILSHIE, J. Stewart, C. J., and Budge, District Judge, concur.

OPINION

AILSHIE, J.

This is an action brought on an alleged libel consisting of a matter stated by the defendant in his pleading in another action. The plaintiff here sued the defendant in a former action to recover for service rendered, goods furnished and cash advanced for the use and benefit of the defendant in that action. The defendant in that action, which is also the defendant in this action, answered the plaintiff's complaint, and at the same time, by way of further answer and counterclaim, alleged, inter alia, as follows:

"And the said defendant further answering the complaint of the plaintiff and by way of counterclaim to the third cause of action thereof, says:

"1. That on or about the 15th day of April, 1909, while plaintiff was in the employment of the defendant, and serving it as an employee, which is the same employment set out in plaintiff's third cause of action, as the foundation thereof, the defendant was lawfully possessed of the following described property at its camp and millsite on Grimes creek, in the county of Boise and State of Idaho: 400 feet of 8-inch hydraulic pipe and 600 feet of 6-inch hydraulic pipe; and 5,000 feet of lumber, as of its own property, of the value of $ 620.

"2. That on or about said day, at the place aforesaid, and while plaintiff was so employed by defendant, the plaintiff unlawfully converted and disposed of said hydraulic pipe and lumber to his own use to the damage of the defendant in the sum of $ 620.

"The defendant further answering the complaint, and by way of counterclaim to the third cause of action thereof, says:

"1. That during the months of April, May, June, July and August of the years 1906, 1907, 1908 and 1909, while the plaintiff was in the employment of the defendant and serving it as an employee, which is the same employment set out in plaintiff's third cause of action as the foundation thereof, the defendant was lawfully possessed of certain gold nuggets and specimens as of its own property of the value of $ 430.

"2. That the defendant is informed and believes, and upon such information and belief alleges, that the plaintiff, at the camp and millsite of the defendant, on Grimes Creek, county of Boise, State of Idaho, and while plaintiff was so employed by defendant, at the times specified in the preceding paragraph, converted and disposed of said specimens and nuggets to his own use, to the damage of the plaintiff in the sum of $ 430."

The plaintiff thereafter commenced this action against the defendant to recover damages on account of the alleged false and defamatory character of the pleading filed by the defendant in the previous action, and complains particularly of that part of the pleading which alleged that "the plaintiff unlawfully converted and disposed of said hydraulic pipe and lumber to his own use," and the further portion of...