Hendrix v. Daughtry

• Decision Date: 29 January 1908
• Docket Number: (No. 292.)
• Citation: 3 Ga.App. 481,60 S.E. 206
• Parties: HENDRIX . v. DAUGHTRY.
• Court: Georgia Court of Appeals

60 S.E. 206

3 Ga.App. 481

HENDRIX .

v.DAUGHTRY.

(No. 292.)

Court of Appeals of Georgia.

Jan. 29, 1908.

Slander—Privileged Statements.

As against an action for slander, answers of a witness responsive to questions asked by counsel and not disallowed by the court, are absolutely privileged.

[Ed. Note.—For cases in point, seeCent. Dig. vol. 32, Libel and Slander, § 121.]

(Syllabus by the Court.)

Error from City Court of Statesboro; J. F. Brannen, Judge.

Action by E. Daughtry against Jasper Hendrix.Judgment for plaintiff, and defendant brings error.Reversed.

Brannen & Booth and R. Lee Moore, for plaintiff in error.

H. B. Strange and Deal & Lanier, for defendant in error.

RUSSELL, J. Daughtry brought an action for damages against Hendrix for slander.He alleged that the defendant used of and concerning him the following false and malicious words: "E. Daughtry stole money from me, and I can prove it by his mother-in-law.She saw him take it out of my pocket."On the trial the jury rendered a verdict in favor of the plaintiff for $100.The defendant excepts to the judgment overruling his motion for a new trial.It appears from the evidence that the language which was used by Hendrix was his testimony on the trial of Daughtry for arson.The only time that the defendant is shown to have used the language was upon this occasion, when he was a witness, and in response to questions asked by counsel.The grounds of the motion for a new trial are that the verdict is contrary to law and contrary to evidence; also that the court erred in not directing a verdict for the defendant, and that the court erred in his charge, and in the admission of certain testimony prejudicial to the defendant.

The main question in the case is whether or not the language used is absolutely privileged by reason of the fact that the words spoken were used in direct response to a question by counsel in the course of legal investigation.In our opinion it is immaterial, so far as the verdict is concerned, whether the testimony of a witness be treated as the subject of conditional or of absolute privilege.In either event the verdict is wrong and a new trial should have been granted.If the testimony of a witness be held to be matter of conditional privilege, the burden still rests upon the plaintiff to prove that the words spoken are false and that they were uttered with malice.This burden the plaintiff totally failed to carry.It has, so far as we have been able to discover, not heretofore been decided in this state whether the testimony of a witness, whose duty it is to answer questions propounded to him, is or is not the matter of absolute privilege.It is true that our Code does not treat of the matter at all.The only reference in the Civil Code is to a conditional privilege.The Supreme Court has, however, in several decisions, recognized that absolute privilege exists in this state.In Lester v. Thurmond, 51 Ga. 119, and in Atlanta News v. Medlock, 123 Ga. 719, 51 S. E. 756, 3 L. R. A. (N. S.) 1139, it is said that the privileged communications mentioned in section 3840 of the Civil...