Dayton v. Drumheller

• Citation: 32 Idaho 283,182 P. 102
• Parties: DENVER P. DAYTON, Appellant, v. JEROME L. DRUMHELLER, Respondent
• Decision Date: 14 June 1919
• Court: United States State Supreme Court of Idaho

182 P. 102

32 Idaho 283

DENVER P. DAYTON, Appellant, v. JEROME L. DRUMHELLER, Respondent

Supreme Court of Idaho

June 14, 1919

LIBEL-WORDS LIBELOUS PER SE-CHARGE OF FELONY-JUDICIAL PROCEEDINGS-PRIVILEGE, ABSOLUTE AND QUALIFIED-MOTION FOR NEW TRIAL-MATTERS PERTINENT OR HAVING RELATION THERETO-PLEADING-COMPLAINT, SUFFICIENCY OF.

1. Words falsely published of another, amounting to a charge which, if true, would subject the party charged to infamous punishment, are libelous per se.

2. A false charge of arson is libelous per se, the crime of arson being punishable by imprisonment in the penitentiary.

3. Libolous words used in a judicial proceeding are protected by the privilege, either absolute or qualified, which attends such a proceeding.

4. Libelous words used in a judicial proceeding, in order to be protected by the absolute privilege, must be pertinent or have some legitimate relation to the subject of the inquiry.

5. Libelous words used in a judicial proceeding, but not pertinent and having no legal relation thereto, are, in the absence of a milicious intent to defame, protected by the qualified privilege by reason of the occasion.

6. A complaint, charging libel in a judicial proceeding, must allege facts which show on their face that the libelous words were neither pertinent nor had any legitimate relation to the subject of the inquiry and that their use was accompanied with express malice and an intent to defame, i. e., with a malicious intent to defame.

7. The grounds for a new trial are wholly statutory, and on an application for a new trial the only matters which are pertinent or have legitimate relation to the subject of the inquiry are matters which relate to such statutory grounds.

8. One of the essential grounds for granting a new trial, because of the existence of evidence not adduced upon the trial, is that such evidence is newly discovered.

9. Words used in an affidavit filed in support of a motion for a new trial, falsely charging the opposing party with the crime of arson, and alleging that witnesses to whom the affiant had talked prior to the trial had refused to testify to matters within their knowledge because of their fear of the party so charged, are not pertinent and have no legitimate relation to the subject matter of the inquiry before the court.

10. In determining the sufficiency of the complaint, the question whether libelous words used in a judicial proceeding are pertinent or relate to the subject of the inquiry is one of law for the court.

11. The question whether the defendant knew or believed that his libelous words were not pertinent and had no legitimate relation to the matter of inquiry, or whether he made the statements without reasonable or probable cause, or whether his statements were published in good faith, are questions of fact for the jury. This issue, so far as the sufficiency of the complaint is involved, is presented by the affirmative allegation that the libelous words were published with the malicious intent to defame.

[As to evidence admissible to support innuendo, see note in 53 Am.St. 698-701]

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.

Action for damages for libel. Judgment for defendant. Reversed.

Reversed and remanded. Costs awarded to appellant.

J. F Ailshie and Wm. H. Bonneville, for Appellant.

Any written or printed statement which falsely and maliciously charges another with the commission of a crime is libelous per se. Indeed, to charge a person with that which, although not criminal, yet degrades him in the eyes of the public or exposes him to contempt or ridicule is libelous per se. (25 Cyc. 269; 18 Am. & Eng. Ency. of Law, 954; State v Sheridan, 14 Idaho 222, 93 P. 656, 15 L. R. A., N. S 497; Douglas v. Douglas, 4 Idaho 293, 38 P. 934.)

The rule is well settled in England that statements made by a party in his pleadings in judicial proceedings are absolutely privileged and can in no case give rise to an action for defamation. The prevailing rule in the United States is that such statements are privileged when pertinent and relevant to the subject under inquiry, regardless of malice. (17 R. C. L. 335; 18 Am. & Eng. Ency. of Law, 1023; Carpenter v. Grimes Pass Placer Mining Co., 19 Idaho 384, 114 P. 42.)

In the case at bar the court struck out the entire affidavit from the files of the action. The only conclusion to be drawn therefrom is that neither the affidavit nor any of its contents was either pertinent or material to the issues. (Union Mutual Life Ins. Co. v. Thomas, 83 F. 803, 28 C. C. A. 96; McLaughlin v. Cowley, 127 Mass. 316, 131 Mass. 70; Dwyer v. Libert, 30 Idaho 576, Ann. Cas. 1918B, 973, 167 P. 651; Wyatt v. Buell, 47 Cal. 624.)

The affiant does not even state that he had newly discovered evidence, nor that he was not able to produce it at the trial. Hence the libelous matter in his affidavit did not state grounds for a new trial. (Stolz v. Scott, 28 Idaho 417, 154 P. 982; Montgomery v. Gray, 26 Idaho 583, 585, 144 P. 646; Hall v. Jensen, 14 Idaho 165, 93 P. 962.)

The amended complaint was sufficient in every detail to constitute a proper cause of action for libel. (Bonney v. State, 3 Idaho 288, 29 P. 185; Pacific Packing Co. v. Bradstreet Co., 25 Idaho 696, Ann. Cas. 1916D, 761, 139 P. 1007, 51 L. R. A., N. S., 893.)

Herman H. Taylor and A. H. Conner, for Respondent.

"The courts will determine as a matter of law whether the matter pleaded was in fact pertinent or material." (Carpenter v. Grimes Pass Placer Mining Co., 19 Idaho 384, 114 P. 42; Crockett v. McLanahan, 109 Tenn. 517, 72 S.W. 950, 61 L. R. A. 914.)

The burden is upon the plaintiff to show a want of privileged occasion, or, if it existed, that the matter was not pertinent, material or published with probable cause. (Gardemal v. McWilliams, 43 La. Ann. 454, 26 Am. St. 195, 9 So. 106; Liles v. Gaster, 42 Ohio St. 631; Wilson v. Sullivan, 81 Ga. 238, 7 S.E. 274.)

"It seems that the parties or their representatives are entitled to state anything which, although not strictly relevant, may be fairly supposed by them to weigh with the court." (Lawson v. Hicks, 38 Ala. 279, 81 Am. Dec. 49; Jennings v. Paine, 4 Wis. 358; Hammer v. Forde, 125 Minn. 146, 145 N.W. 810.)

"No strained or close construction will be indulged in to exempt a case from the protection of privilege." (Johnson v. Brown, 13 W.Va. 71; Moore v. Manufacturers' Nat. Bank, 123 N.Y. 420, 25 N.E. 1048, 11 L. R. A. 758; Cooley on Torts, 3d ed., 432; Lea v. White, 36 Tenn. 111; Hoar v. Wood, 3 Met. (44 Mass.) 193; Myers v. Hodges, 53 Fla. 197, 44 So. 357, 362.)

If it appears from the statement of facts shown in the complaint that the libel was published upon a privileged occasion, the complaint must show all the facts defendant would be obliged to show under a plea of privilege. (25 Cyc. 469; Perkins v. Mitchell, 31 Barb. (N. Y.) 461; Mower v. Watson, 11 Vt. 536, 34 Am. Dec. 704.)

BUDGE, J. Rice, J., concurs. MORGAN, C. J., Dissenting.

OPINION

BUDGE, J.

This is an action for damages for libel. The court sustained a general demurrer to the amended complaint and entered judgment dismissing the action, from which judgment this appeal is taken. Error is predicated on the action of the trial court in sustaining the demurrer and in entering judgment.

It is alleged that in a prior suit, wherein respondent Drumheller was plaintiff and appellant Dayton and his wife were defendants, Drumheller filed an affidavit, a copy of which is attached to the amended complaint as an exhibit, the alleged defamatory matter being set forth in the body of the amended complaint in haec verba:

"Affiant further says that prior to the trial of this action he had inquired of a number of persons if they would testify as to the value of the said ranch, but of the persons so inquired those who were familiar with the ranch refused to testify and gave as their reasons therefor that the defendant Dayton was a dangerous man and had the reputation of burning up the property of his neighbors; and that they did not wish to involve themselves in any difficulty with him as they were afraid he would burn up their property or do them physical violence. It was only after the trial of this action and the general indignation of the public over the miscarriage of justice in which the said trial resulted that the plaintiff was able to secure witnesses who were willing to testify as to the value of the said land; that for obvious reasons the plaintiff has not heretofore and does not now disclose the names of such persons."

It is further alleged by innuendo that respondent, by the language above quoted, "charged and intended to charge plaintiff with the crime of arson."

Whether or not the words quoted from the affidavit, in the amended complaint, amount to a charge of arson, unless coupled with the innuendo, we are not called upon to decide. It is perfectly clear, however, that taken in connection with the innuendo, the amended complaint alleges in substance that respondent wrote and published a charge of arson of and concerning this appellant. Under the statutes of this state, the crime of arson is a felony, punishable by imprisonment in the penitentiary. The rule is well settled that words falsely published of another, amounting to a charge which, if true, would subject the party charged to infamous punishment, are in themselves libelous, or, as is commonly said, libelous per se. (Douglas v Douglas, 4 Idaho 293, 38 P. 934; 1 Cooley on Torts, 3d ed., p. 377; 1 Kinkead's Commentaries on Torts, p. 769.) The particular charge, that of arson, has been frequently held to fall within the foregoing rule. (1 Cooley on Torts, 3d ed., p. 382; Clugston v. Garretson, 103 Cal....