Kemper v. Fort

• Decision Date: 21 October 1907
• Docket Number: 348
• Citation: 67 A. 991,219 Pa. 85
• Parties: Kemper, Appellant, v. Fort
• Court: Pennsylvania Supreme Court

67 A. 991

219 Pa. 85

Kemper, Appellant, v. Fort

No. 348

Supreme Court of Pennsylvania

October 21, 1907

Argued January 15, 1907

Appeal, No. 348, Jan. T., 1906, by plaintiff, from judgment of C.P. No. 4, Phila. Co., March T., 1903, No. 3,736, on verdict for defendant in case of Mary Kemper v. Thomas R Fort, Jr. Affirmed.

Trespass for libel. Before AUDENRIED, J.

At the trial it appeared that one Austin W. Bennett, as guardian for Jesse C. Claggett, filed a petition in the orphans' court as of January Term, 1896, No. 473, to review the accounts of William S. Price and Thomas R. Fort, Jr., executors and trustees under the will of Thomas W. Price, deceased. It was claimed by Jesse C. Claggett that as a child of Mary S Claggett, daughter of the testator, and a remainder-man under his grandfather's will, he had a standing to maintain the petition.

The executors filed an answer in which they used the following language:

"And they further aver that the said Jesse C. Claggett denies that the said Jesse C. Claggett, minor, is his child, and aver that the mother of said minor, Mary S. Claggett, has confessed both by word of mouth and by writing that her son, the said minor, on behalf of whom this petition is presented, is not the son of the said Jesse C. Claggett; basing upon these and other facts known to the respondents the respondents aver that the minor represented by Austin W. Bennett as guardian is not the legitimate issue of Mary S. Claggett, but is an illegitimate child, and hence is in no wise entitled to take under the bequest in the will of Thomas W. Price, deceased, to the issue of Mary S. Claggett, and is not entitled to maintain the citation in this case."

The court gave binding instructions for defendant. Plaintiff appealed.

Error assigned was in giving binding instructions for defendant.

Joseph Gilfillan, with him W. E. Chapman and George S. Graham, for appellant. -- A party or witness is not absolutely privileged for any and everything that he may say in the course of a judicial proceeding, whether pertinent or otherwise: Com. v. Culver, 1 Clark, 361; Gray v. Pentland, 2 S. & R. 23; Chapman v. Calder, 14 Pa. 365.

A witness or party is not protected from a charge of libel if the libelous matter is not pertinent to the issue: Scottish Rite, etc., Aid Assn. v. Union Trust Co., 195 Pa. 45.

Henry Budd, with him R. D. Maxwell, for appellee. -- The language on the answer was privileged: Revis v. Smith, 18 C.B. 126; Henderson v. Broomhead, 4 H. & N. 569; Lake v. King, 1 Saund. 120; Bartlett v. Christhilf, 69 Md. 219 (14 A. Repr. 518); Runge v. Franklin, 72 Texas, 585 (10 S.W. Repr. 721); Abbott v. Nat. Bank of Commerce, 20 Wash. 552 (56 Pac. Repr. 376); Hartsock v. Reddick, 6 Blackf. (Ind.) 255; Griffith v. Slinkard, 146 Ind. 117 (44 N.E. Repr. 1001); Hoar v. Wood, 44 Mass. 193; Warner v. Paine, 4 N.Y.S. 195; Moore v. Bank, 123 N.Y. 420 (25 N.E. Repr. 1048); Wilson v. Sullivan, 81 Ga. 238 (7 S.E. Repr. 274); Hardin v. Cumstock, 2 A. K. Marsh. 480; Gains v. AEtna Ins. Co., 47 S.W. Repr. 884; Lea v. White, 36 Tenn. 110; Strauss v. Meyer, 48 Ill. 385; Ash v. Zwietusch, 159 Ill. 455 (42 N.E. Repr. 854); Jones v. Brownlee, 161 Mo. 258 (61 S.W. Repr. 795); Hart v. Baxter, 47 Mich. 198 (10 N.W. 198); Johnson v. Brown, 13 West. Va. 71.

Before MITCHELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE BROWN:

The libelous matter of which the appellant complains appears in two answers in the orphans' court of Philadelphia county to petitions filed by Austin W. Bennett, guardian of Jesse C. Claggett, for a review of the accounts of Thomas R. Fort, Jr., the appellee, and William S. Price, executors and trustees under the will of Thomas W. Price, deceased, and for an order to set aside the sale of certain real estate made by them. Thomas W. Price, the father of the appellant, died in 1895. At that time she was the wife of Jesse C. Claggett, and by her father's will the sum of $50,000 was given to his executors in trust, the income to be paid to her during life, and at her death to be devoted to the maintenance of her "issue" for a certain time, after which there was to be an equal division of the principal "to and among the children" of the said Mary S. Claggett. In 1900 she was divorced from her husband, Jesse C. Claggett, and was subsequently married to L. S. Kemper. In the answers filed in the orphans' court by the two executors and trustees there was an averment that Jesse C. Claggett was the illegitimate child of the said Mary S. Claggett, as she has "confessed both by word of mouth and by writing," and, in view of this confession and other facts known to the respondents, they denied the right of the said Jesse C. Claggett to take under the bequest in the will of the said Thomas W. Price, deceased, and of his guardian to ask for the citations.

On the trial it appeared that the allegation of the illegitimacy of Jesse C. Claggett, Jr., was false. It was shown, however, that Jesse C. Claggett, the former husband of appellant, had told the appellee that the child was not his, but another's, and that his wife had so admitted to him. This information was conveyed by Claggett to the appellee as a result of an investigation instituted by him upon being informed by Thomas Claggett, the brother of Jesse C. Claggett, that the latter was illegitimate, and, therefore, not interested in the estate of Thomas W. Price. Thomas Claggett notified Fort that he was the sole party in remainder after his mother's death, and gave further notice to him as executor and trustee to see to it that Jesse C. Claggett was not permitted to share in the trust estate. It was as the result of this notice that Fort set inquiries on foot in relation to the legitimacy of Jesse C. Claggett, Jr., and, in the course of his investigation, the statement of the boy's illegitimacy was made to him by the appellant's former husband. The information acquired by Fort was communicated to his counsel and his co-trustee, who was also a member of the bar, and by the advice of their counsel, and with the consent of William S. Price, the alleged libelous statement was set forth in the answers. On this state of facts the court directed the jury to find in favor of the defendant, holding that whether the allegation of illegitimacy was true or false, it was, under the undisputed facts, privileged, and for making it in the answers the defendant was not responsible to the plaintiff.

In England, as far back as the time of Coke, anything said or written in legal proceedings was absolutely privileged. In Cutler and Dixon, Coke's Reports, Part IV, p. 14, it was adjudged, "that if one exhibits articles to justices of peace against a certain person, containing divers great abuses and misdemeanors, not only concerning the petitioners themselves, but many others, and all this to the intent that he should be bound to his good behavior; in this case the party accused shall not have for any matter contained in such articles any action upon the case, for they have pursued the ordinary course of Justice in such case; and if actions should be permitted in such cases, those who have just cause of complaint, would not dare to complain for fear of infinite vexation." And on the same page, in Buckley and Wood, "It was resolved per totam curiam, that for any matter contained in the bill that was examinable in the said court, no action lies, although the matter is merely false, because it was in course of justice." In The King v. Skinner, Lofft, 55, on a motion to quash the indictment against the defendant, who, as one of his majesty's justices of the peace, was charged with having said to a grand jury before him in the general sessions of the county, "You are a seditious, scandalous, corrupt and perjured jury," Lord Mansfield remarked: "Neither party, witness, counsel, jury or judge, can be put to answer, civilly or criminally, for words spoken in office. If the words spoken are opprobrious or irrelevant to a case, the court will take notice of them as a contempt, and examine on information. If anything of mala mens is found on such enquiry it will be punished suitably." In comparatively recent times, in Revis v. Smith, 86 E.C.L. 127, it was held that no action will lie against a man for a statement made by him, whether by affidavit or viva voce, in the course of a judicial proceeding, even though it be alleged to have been made "falsely and maliciously, and without any reasonable or probable cause." That case was followed by Henderson v. Broomhead, 4 H. & N. 569, and it was there said by CROMPTON, J.: "No action will lie for words spoken or written in the course of any judicial proceeding. In spite of all that can be said against it, we find the rule acted upon from the earliest times. The mischief would be immense if the person aggrieved, instead of preferring an indictment for perjury, could turn his complaint into a civil action. By universal assent it appears that in this country no such action lies. CRESSWELL, J., pointed out, in Revis v. Smith, 18 C.B. 126 (E.C.L.R. vol. 86), that the inconvenience is much less than it would be if the rule were otherwise. The origin of the rule was the great mischief that would result if witnesses in courts of justice were not at liberty to speak freely, subject only to the animadversion of the court. The attempts to obtain redress for defamation having failed, an effort was made in Revis v. Smith to sustain an action analogous to an action for malicious prosecution. That seems to have been done in despair. The rule is inflexible that no action will lie for words spoken or written in the course of giving evidence." Another case that may be cited is Seaman v. Netherclift, L.R. 1 C.P. Div. 540, where it was said by...