Jones v. Trice

• Decision Date: 07 September 1962
• Citation: 14 McCanless 535,360 S.W.2d 48,210 Tenn. 535
• Parties: , 210 Tenn. 535 R. C. JONES v. Helen Corinne Scales TRICE.
• Court: Tennessee Supreme Court

Page 48

360 S.W.2d 48

14 McCanless 535, 210 Tenn. 535

R. C. JONES v. Helen Corinne Scales TRICE.

Supreme Court of Tennessee.

Sept. 7, 1962.

Wade & Forrester, Pulaski, for plaintiff.

Fyke Farmer, Nashville, for defendant.

WHITE, Judge.

This is an action for damages for libel. To the declaration the defendant filed a demurrer, which was sustained by the trial judge, resulting in the appeal now before us.

In general terms the allegations of the declaration are that the plaintiff, R. C. Jones, was present as a visitor in the courtroom during the trial of another case against the defendant as executrix of an estate. Jones was interested in the proceedings, according to the declaration, because he had a similar claim against the estate which was to be tried at a later date. The jury returned a verdict against Mrs. Trice in that case and thereafter she moved for a new trial. One ground of her motion for a new trial was alleged improper influence upon the jury by the plaintiff herein. The motion contained the following statement:

'R. C. Jones was 'in constant attendance at the trial, consulting the members of the Jury at every opportunity * * * bringing whiskey to the courthouse and boasting that he gave drinks to members of the Jury * * * (and he) deported himself before the Jury as one of great authority around the courthouse, displaying an officiousness in the capacity of self-appointed substitute court officer, his actions and conduct necessarily tending to create a prejudice in the minds of the Jury against defendant and in favor of the plaintiffs * * *"

It was further alleged in the declaration that these statements, contained in the motion of Mrs. Trice for a new trial, were false, were known to be false when made and were made with wilful intent to injure the character of the plaintiff. An amendment was filed to the declaration alleging that all of the above ground for a new trial was abandoned and withdrawn by the defendant at the hearing on the motion for a new trial.

The demurrer filed in the instant case pled absolute privilege. The basis for this pleading is that the allegedly libelous statements were made in the course of a judicial proceeding and as such they could not give a cause on which to predicate civil liability.

In his Brief, the plaintiff, Jones, concedes the nature and purpose of the privilege in judicial proceedings. He contends however that it cannot apply in this case. The argument is that the statements were made against a third party about an issue which was not pertinent to the occasion. He says further that the statements were not pertinent and as evidence thereof they were withdrawn at the hearing. Therefore, they were not privileged. Finally the plaintiff argues that naming him specifically in the affidavit for a new trial was also wholly irrelevant and unnecessary and thus without privilege.

The defendant contends that the statements were absolutely privileged, that they were pertinent to the occasion, and that the fact that the statements were withdrawn from the motion did not destroy the privilege.

Therefore the question presented on this appeal is whether or not the allegedly defamatory statements are absolutely privileged.

The general rule is that statements made in the course of judicial proceedings which are relevant and pertinent to the issues are absolutely privileged, and therefore cannot be used as a basis for a libel action for damages. This rule holds true even though such statements are false, known to be false or even malicious. Hayslip v. Wellford, 195 Tenn. 621, 263 S.W.2d 136, 42 A.L.R.2d 820, and cases cited therein.

The English rule is stated by Gatley in his work on Libel and Slander at page 186, Third Edition, (1938), in this manner:

'There are certain occasions of which public policy and convenience require that a man should be free from responsibility for the publication of defamatory words. Such occasions are well recognized, and the Courts are unwilling to extend their number. No action will lie for words published on any one of these occasions, even though the plaintiff prove that the defendant published them with full knowledge of their falsity and with the express intention of injuring him * * *.

'An absolute privilege attaches to the following statements:

'I. Statements made in the course of judicial proceedings * * *.'

'The general rule in America is the same as in England as respects judges but as to parties, counsel and witnesses is generally qualified to the extent that the defamatory words must be applicable, pertinent or relevant.' Newell, Slander and Libel, 393, (4th ed. 1924).

In 33 Am.Jur. at page 123, the following statements of the rule are found:

Section 124. 'On the ground of public policy, the law recognizes certain communications as privileged and, as such, not within the rules imposing liability for defamation * * *

'Privileged communications are divided into two general classes, namely: (1) those which are absolutely privileged; and (2) those which are qualifiedly or conditionally privileged * * *.'

Section 125 provides, 'An absolutely privileged communication is one * * * which, by reason of the occasion on which * * * it is made, no remedy can be had in a civil action, however hard it may bear upon a person who claims to be injured thereby, and even though it may have been made maliciously.

'The class of absolutely privileged communications is narrow and is practically limited to legislative and judicial proceedings and other acts of state * * *.'

In Section 146 it is said, 'The rule is settled in England that judges, counsel, parties, and witnesses are absolutely exempt from responsibility for libel or slander for words, otherwise defamatory, published in the course of judicial proceedings. The same doctrine is generally adhered to in the various jurisdictions throughout the United States, subject to the qualification as to parties, counsel, and witnesses, that in order to be privileged, their statements must be pertinent or relevant to the case * * *.'

The same rule was announced early in the State of Tennessee in the leading case of Lea v. White, 36 Tenn. 111 at page 113 (1856), wherein this Court said:

'But there is another class of cases which are absolutely privileged, and 'depend in no respect for their protection upon their bona fides.' 'The occasion is an absolute privilege; and the only questions are whether the occasion existed, and whether the matter complained of was pertinent to the occasion."

This statement in Lea v. White has been cited with approval in the cases of Cooley v. Galyon, 109 Tenn. 1, 70 S.W. 607, 60 L.R.A. 139; Crockett v. McClanahan, 109 Tenn. 517, 72 S.W. 950, 61 L.R.A. 914; Wells v. Carter, 164 Tenn. 400, 50 S.W.2d 228; Dyer v. Dyer, 178 Tenn. 234, 156 S.W.2d 445, and was referred to in the most recent case of Logan's Super Market v. McCalla, 208 Tenn. 68, 343 S.W.2d 892.

In the Restatement of Torts, Section 587, it is stated:

'A party to a private litigation * * * is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of a judicial proceeding in which he participates, if the matter had some relation thereto.'

Underlying this general doctrine of absolute immunity from liability in libel and slander for statements made in the course of a judicial proceeding is a policy decision by the courts that access to the judicial process, freedom to institute an action, or defend, or participate therein without fear of the burden of being sued for defamation is so vital and necessary to the integrity of our judicial system that it must be made paramount to the right of an individual to a legal remedy where he has been wronged thereby.

In the case of Crockett v. McClanahan, supra 109 Tenn. at 530, 72 S.W. at 953, it was stated:

'The fact that cases of hardship may arise, and persons who have been defamed in the course of judicial proceedings may be left remediless, is no reason why a wholesome legal principle, founded upon reasons of public policy, should be overthrown. A multitude of instances might be cited where the rights of the individual are required to be sacrificed for the public good.'

Again in the case of Lea v. White, supra 36 Tenn. at 114, the Court said:

'The proceedings connected with the judicature of the country are so important to the public good, that the law holds that nothing which may be therein said with probable cause, whether with or without malice, can be slander; and, in like manner, that nothing written with probable cause, under the sanction of such occasion, can be a libel.

'The pertinency of the matter to the occasion is that which is meant by probable cause * * *.'

From the above authorities in general and from the Tennessee cases cited, it can be seen that a statement by a judge, witness, counsel, or party, to be absolutely privileged, must meet two conditions, viz: (1) It must be in the course of a judicial proceeding, and (2) it must be pertinent or relevant to the issue involved in said judicial proceeding.

Considering the first condition, it cannot be doubted in the case at Bar that the motion for a new trial and the affidavit of the defendant contained therein about the conduct of the plaintiff were 'in the course of a judicial proceeding.' However, we have been unable to find any prior case in Tennessee dealing with allegedly defamatory matter in a motion for a new trial.

In the work of Gatley, supra at page 188, the author states:

'It is immaterial whether such (judicial) proceedings take place in open Court or in private, whether they are of a final or preliminary character * * *.'

[210 Tenn. 543] And at page 199 the author states further:

'No action will lie against a...