Hammett v. Hunter

• Decision Date: 09 September 1941
• Docket Number: Case Number: 30151
• Parties: HAMMETT v. HUNTER
• Court: Oklahoma Supreme Court

1941 OK 253

117 P.2d 511

189 Okla. 455

HAMMETT v. HUNTER

Case Number: 30151

Supreme Court of Oklahoma

Decided: September 9, 1941

Syllabus

¶0 1. LIBEL AND SLANDER--Absolutely privileged communications--Defamatory words published by parties, counsel, or witnesses in due course of judicial proceeding.

Defamatory words published by the parties, counsel, or witnesses, in due course of a judicial proceeding and which are connected with, or relevant or material to, the cause in hand or subject of inquiry, constitute an absolutely privileged communication, and no action will lie therefor, however false or malicious they may in fact be.

2. SAME--Proceeding wherein party seeks modification of portion of divorce judgment providing for care and custody of children is "judicial proceeding or other proceeding authorized by law."

A proceeding after judgment in a divorce action wherein one of the parties seeks modification of that portion of the judgment pertaining to the care and custody of the minor children is a judicial proceeding or other proceeding authorized by law, within the meaning of section 726, O. S. 1931, 12 Okla. Stat. Ann. § 1443, defining privileged communication.

Appeal from District Court, Comanche County; Toby Morris, Judge.

Action by Edna M. Hammett against Charles M. Hunter. Judgment for defendant, and plaintiff appeals. Affirmed.

Paul W. Updegraff, of Norman, and C. T. O'Neal, of Lawton, for plaintiff in error.

John F. Thomas, of Lawton, for defendant in error.

GIBSON, J.

¶1 Plaintiff below appeals from the judgment of the district court rendered on a directed verdict for defendant in an action for slander.

¶2 The defense was that the alleged defamatory utterance was made by defendant while testifying in his own behalf in a judicial proceeding had subsequent to judgment in a divorce action wherein he was defendant, and was made not only in response to a question by counsel on cross-examination but was pertinent to the issue then being tried, and that the same was therefore a privileged statement for which he may not be held liable in a civil action for slander.

¶3 The evidence shows that the statement in question was made by defendant as a witness in a controversy involving the custody of his child after it had been awarded to its mother, Bertha Hunter, in an action for divorce and alimony instituted by the said Bertha Hunter against the defendant. Subsequent to the decree of divorce and alimony, the plaintiff in said cause moved against the defendant by way of citation for failure to make the alimony payments. Thereupon defendant prepared and served on the plaintiff therein an application asking the court to modify the former decree and to award him custody of the child. This application did not bear the filing mark of the court clerk, but by agreement the citation and the application were consolidated and presented for hearing at the same time.

¶4 The application charged that the plaintiff in the divorce action for various alleged reasons was an unsuitable person to care for the child and that she often allowed it to remain in the custody of strangers for days at a time while she was away from home. It developed at the hearing that the plaintiff therein on numerous occasions allowed the child to remain for days in the custody of the present plaintiff, her sister. Counsel for the wife, referring to the plaintiff herein, asked the defendant the following question: "Isn't her sister, Mrs. Hammett, a proper person to leave the child with when she would be away?" And defendant answered, "No, sir. She is a sex degenerate." That answer forms the basis of this action.

¶5 Slander is defined by our statute as "a false and unprivileged publication, other than libel," of a defamatory nature as specified therein. Section 725, O. S. 1931, 12 Okla. Stat. Ann. § 1442. And section 726, O. S. 1931, 12 Okla. Stat. Ann. § 1443, provides as follows:

"A privileged publication or communication one made:

"First. In any legislative or judicial proceeding or any other proceeding authorized by law; . . ."

¶6 According to the language employed in section 725, above, any defamatory communication, in order to be actionable as slander, must be both false and unprivileged. It would appear that if the communication is privileged as defined in section 726, the action can not be maintained. In construing that section, which was section 4958, R. L. 1910, the court, in German-American Ins. Co. v. Huntley, 62 Okla. 39, 161 P. 815, held as follows:

"By section 4958, Rev. Laws 1910, two classes of privileged publications are recognized:

"(1) Those where the occasions designated, regardless of malice, constitute an absolute privilege and preclude recovery of damages; and (2) those in which the circumstances of the defamatory publication, together with the testimony, rebut the presumption of malice, and afford a qualified privilege."

(To the same effect, see Sanford v. Howard, 185 Okla. 660, 95 P.2d 644.)

¶7 The above holding expresses the general rule. There are, as stated, two classes of privileged communications; and there is no civil liability in either case. An absolutely privileged communication is defined as words spoken by a party or a witness in due course of a judicial proceeding or any other proceeding authorized by law that are connected with, relevant, pertinent, or material to the subject of inquiry; and such communication will in no event support an action for slander. 36 C. J. 1251, § 225; Sanford v. Howard, supra. In the text last cited we find the following statement:

"In the United States, according to the weight of authority, in order that defamatory words, published by parties, counsel, or witnesses, in the due course of a judicial procedure, may be absolutely privileged, they must be connected with, or relevant or material to, the cause in hand or subject of inquiry. If they are so published and are so relevant or pertinent to the subject of inquiry, no action will lie therefor, however false or malicious they may in fact be."

¶8 A conditional or qualified privileged communication is defined in Bland v. Lawyer-Cuff Co., 72 Okla. 128, 178 P. 885, as "one made in good faith upon any subject matter in which the party communicating has an interest, or in reference to which he has or honestly believes he has a duty to perform, and which, without the occasion upon which it is made, would be defamatory and actionable." In such case the statutory presumption of malice does not accompany the publication of the defamatory communication, but the burden is on plaintiff in a civil action to establish malice. 36 C. J. 1221, § 168; 36 C. J. 1241, § 205.

¶9 However, a defamatory statement which is pertinent to the subject of inquiry...