Hartung v. Shaw

• Decision Date: 26 March 1902
• Citation: 89 N.W. 701,130 Mich. 177
• Court: Michigan Supreme Court
• Parties: HARTUNG v. SHAW et al.

89 N.W. 701

130 Mich. 177

HARTUNG v. SHAW et al.

Supreme Court of Michigan

March 26, 1902

Error to circuit court, Macomb county; Frank Whipple, Judge.

Action of libel by George G. Hartung against Georgia A. Shaw and another. From a judgment for defendants, plaintiff brings error. Affirmed.

This is an action of libel. The declaration is in the usual form. The libel complained of was in an answer to a bill in chancery filed by one Sarah Brabb against plaintiff, defendant Shaw and others. The declaration alleges that the bill of complaint to which this answer was filed prayed for the partition and division of certain lands devised under the seventh clause of the will of Marvil Shaw, deceased. The libelous matter complained of, and stated to be in the answer, is as follows: 'That defendant would further set up on information and belief, and so believing the facts states the truth to be, and which she relies in this case for her defense herein, the facts and circumstances in this case that the fact as stated in the affidavit of Will Chisnell about the agreement made on the 21st day of July, 1896, and the carrying out of said agreement on the 27th day of July 1896, that the facts stated in the affidavit of John Mellen as detailed in October and November, 1896, as to the sickness and cause of the sickness of Ratie Eldred, are repulsive and inhuman. That this defendant would further set up on information and belief, and so believing states the facts to be, upon which she relies in this case for her defense to the division of said property, or the sale of said property, as the facts and circumstances in this case, that said facts and circumstances tend to show strongly that George G. Hartung was directly and indirectly responsible for the condition and sickness of said Ratie Eldred, with a wicked intent, as this defendant verily believes, with a full belief and intention to destroy in Ratie Eldred the physical possibility of leaving at his death a child or children by his body begotten.' The declaration then proceeds, by the appropriate innuendo, to state what is meant by the above article. Defendant Shaw pleaded the general issue, with notice that the answer contained in the alleged libelous matter was filed and a copy thereof served upon complainant under and in accordance with the rules of the court; that she employed the defendant Starkweather as her solicitor; that the answer was filed and served in good faith pursuant to the advice of her solicitor, upon whose advice she fully relied; and that such alleged publications were privileged. Defendant Starkweather filed a plea of the general issue, with notice that the words and matters complained of were pertinent to the issue in said cause, and that the answer was filed in good faith, and also gave notice of the truth of the matters stated in the publication. Upon the trial defendants objected to the introduction of testimony upon the ground that the declaration did not state a cause of action. The court so ruled, and judgment was entered for the defendants.

Dwight N. Lowell (Geer & Williams, of counsel), for appellant.

Byron R. Erskine, for defendant Shaw.

F. H. Canfield, for defendant Starkweather.

GRANT J. (after stating the facts).

1. The ruling of the judge appears to have been based upon the theory that the declaration disclosed a case prima facie privileged, and that it was fatally defective in not alleging that the publication was not within the privilege, or that the defendant exceeded his privilege. Counsel for the plaintiff insist that the averment that the statements were false and malicious negatives every possibility of pertinency, materiality, and relevancy. We do not so understand the rule. If statements made in the course of judicial proceedings, in pleadings, or in argument are relevant, material, or pertinent to the issue, their falsity or the malice of their author is not open to inquiry. They are then absolutely privileged. Hoar v. Wood, 44 Mass. 193, 197; Maulsby v. Reifsnider, 69 Md. 143 14 A. 505; ...