Etchison v. Pergerson

• Decision Date: 01 February 1892
• Citation: 15 S.E. 680,88 Ga. 620
• Parties: ETCHISON v. PERGERSON. PERGERSON v. ETCHISON.
• Court: Georgia Supreme Court

15 S.E. 680

88 Ga. 620

ETCHISON v. PERGERSON.

PERGERSON v. ETCHISON.

Supreme Court of Georgia

February 1, 1892

Syllabus by the Court.

1. A plea to an action for slanderous words, which alleges that they were privileged and also that they were true, is a plea of justification.

2. When one church member is a witness on the trial of another before the proper church tribunal, a bona fide disclosure of all relevant facts is incumbent upon him as a private, moral duty; and if those facts necessarily involve misconduct, or even a crime, on the part of a person not a member of the church, the naming of such person, as a part of the relevant testimony of the witness, is within the protection of the privileged occasion.

3. On the trial of an action of slander, where all the special pleas, properly construed, are pleas of justification, and where the evidence would not support a pleas of qualified privilege, it is error for the court to charge that "the plea of justification was no waiver of the defense that the words were privileged."

4. Where the alleged slanderous words impute to the plaintiff the crime of adultery, and the defendant files pleas averring that they were privileged because spoken by him in good faith to members of the family and as a witness before a church committee, and that said words are true, and it appears from the evidence that the truth or falsity of such words was within the defendant's personal knowledge, and that they related to matters about which he could not be mistaken, he would not be liable if the words were actually true; but, if they were actually false, he would be liable, because in that event the element of good faith would necessarily be wanting and the occasion or the circumstances under which the words were spoken would be no protection.

5. Where on the trial the parties, their counsel and the court all treated the pleas above mentioned as being in no sense pleas of justification, but dealt with them as pleas of privileged communications only, a verdict for the defendant based on those pleas alone, and denomination them pleas of "privilege," should be construed as sustaining them only as understood and submitted by the court. Thus construed, the verdict in this case does not find that the alleged slanderous words were true, but, in effect, finds the contrary. If the words were false, they were, under the evidence, knowingly false, and therefore could not be privileged; if they were true, they were justified, and the question of privilege was immaterial. The trial having been conducted under a misapprehension on this point, a new trial was properly granted.

Error from superior court, Heard county; S.W. HARRIS, Judge.

Action by Amelia Etchison against Robert D. Pergerson for defamation of character. Judgment for defendant. Plaintiff brings error. From an order granting plaintiff's motion for a new trial, defendant brings error. Order granting a new trial. Affirmed.

P. F Smith, W. H. Daniel, and Adamson & Jackson, for plaintiff.

P. H Brewster and F. S. Loftin, for defendant.

LUMPKIN J.

1. Plaintiff below brought suit against her own brother for slanderous words imputing to her a disgraceful crime. The defense was that the words spoken were privileged communications, and were true. If defendant spoke the truth of his sister in this case, it was not slander, and therefore, it was not actionable to speak it. A plea of privilege, with proper allegations, is available and complete without averring the truth of the words spoken. The gravamen of a plea undertaking to combine both of these defenses necessarily is that the words were true, and accordingly such a plea should be treated simply as one of justification. The greater includes the less, and hence where the defendant in a slander case says, by his plea: "I spoke the words complained of; the occasion was one of privilege, authorizing me to do so, [setting it forth,] and I told the truth,"--nothing is really material but the last allegation, and defendant must make it good by competent proof. He is not relieved of this responsibility by an averment that it was a privileged occasion. All other allegations are merged into and absorbed by the...