Lisanby v. I.C.R. Co.

• Decision Date: 29 May 1925
• Citation: 209 Ky. 325
• Parties: Lisanby v. Illinois Central Railroad Company, et al.
• Court: United States State Supreme Court — District of Kentucky

209 Ky. 325

Lisanby v. Illinois Central Railroad Company, et al.

Court of Appeals of Kentucky.

Decided May 29, 1925.

1. Libel and Slander — Statements in Pleadings if Material are Absolutely Privileged. — Statements in pleadings filed in judicial proceedings, if material, relevant, or pertinent to issues involved,

are absolutely privileged, though it is claimed that they were falsely and maliciously made.

2. Removal of Causes — Court will Not Sanction Devices Intended to Prevent Removal of Action to Federal Court, when Clear Right to Removal Exists. — Though plaintiff in an action may proceed in state courts on a cause of action, which in good faith he alleges to be joint, it is equally true that federal and state courts will not sanction devices which are intended to prevent removal to federal court, when one clearly has that right.

3. Attorney and Client — Client Bound by Acts of Attorney in Trial of Lawsuit. — In the preparation and trial of a lawsuit, the attorney acts as agent of his client, and the client is bound by the acts of the attorney in course of such litigation.

4. Attorney and Client — Knowledge of Attorney is Knowledge of Client. — Knowledge of an attorney, acquired in the course of his employment, is knowledge of his client.

5. Libel and Slander — Allegations in Petition for Removal of Cause to Federal Court Held Absolutely Privileged Though Falsely and Maliciously Made. — Knowledge of facts by plaintiff's counsel which rendered a joinder fraudulent, being a proper subject of inquiry on petition for removal of cause to federal court, allegations in petition that plaintiff's counsel knows facts which make joinder fraudulent, are material, pertinent, and relevant, and hence absolutely privileged, though such allegations were made falsely and maliciously, and the fact that petition was defectively stated does not defeat such privilege.

Appeal from Caldwell Circuit Court.

ALVIN LISANBY and REED & BURNS for appellant.

SELDEN Y. TRIMBLE, D.H. HUGHES, J. ELLIOTT BAKER and TRABUE, DOOLAN, HELM & HELM for appellees.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Affirming.

The appellant, a practicing attorney in the courts of this state, brought this action against the appellees, the Illinois Central Railroad Company and John C. Gates, also a practicing attorney, on account of certain alleged libelous statements appearing in a petition for the removal from the state to the federal court of an action brought by appellant as attorney for one Walter Tosh against the Illinois Central Railroad Company and T.E. Harper. This petition for removal which was prepared by the appellee, Gates, as attorney for his coappellee, the Illinois Central Railroad Company, was based on the idea that Harper had been joined as codefendant with the Illinois Central Railroad Company in the Tosh suit with the fraudulent purpose of thus preventing its removal to the federal court, and to establish this proposition the petition averred that there was no joint cause of action alleged in the Tosh suit against the railroad company and its codefendant, Harper, and that in fact there was no cause of action against Harper because Harper had neglected no duty owing to Tosh. The petition for removal then proceeded to set out:

"That knowing these facts, the plaintiff and his counsel purposely omitted to state in plaintiff's petition, any facts showing any liability or breach of duty upon the part of said T.E. Harper, or any right in the plaintiff to recover a judgment against the said T.E. Harper."

The remainder of the paragraph containing the above words in the removal petition refers exclusively to the plaintiff, Tosh, and not to appellant. The next reference to appellant is found in the following paragraph:

"That said T.E. Harper was joined as a codefendant, with your petitioner, and the allegations with respect to said Harper, made in plaintiff's said petition, for the fraudulent purposes above stated, and for no other purpose, and made with full knowledge of the fact on the part of plaintiff and his counsel, that no joint cause of action against your petitioner and the said T.E. Harper existed, and that no cause of action whatever existed against said T.E. Harper."

A demurrer was sustained to appellant's petition in this action on the ground that these statements appearing in the petition for removal, though untrue and made with malice, were yet absolutely privileged. Appellant filed an amended petition which added nothing materially to his cause of action, and after a demurrer had been sustained to the petition as so amended, he declined to plead further and his suit was dismissed.

The parties to this action do not materially differ as to the major premise of the syllogism by which this case is to be solved. Although the English rule is somewhat broader, the American rule, which is the rule in this state, is firmly established that statements in pleadings filed in judicial proceedings if material, relevant or pertinent to the issues involved are absolutely privileged though it is claimed that t...