McClure v. Stretch

• Decision Date: 13 April 1944
• Docket Number: 29268.
• Parties: McCLURE et ux. v. STRETCH et ux.
• Court: Washington Supreme Court

147 P.2d 935

20 Wn.2d 460

McCLURE et ux. v. STRETCH et ux.

No. 29268.

Supreme Court of Washington

April 13, 1944

Department 1.

Action by Lee McClure and wife against A. J. Stretch and others for libel. From a judgment of dismissal after a demurrer to plaintiffs' complaint was sustained, plaintiffs appeal.

Affirmed.

Appeal from Superior Court, King County; James B. Kinne, Judge.

Ross W. Watt, of Port Orchard, for appellants.

Ballinger Hutson & Boldt, of Seattle, for respondents.

JEFFERS Justice.

This is a libel action instituted in the superior court for King county by Lee McClure and wife against A. J. Stretch and the United Pacific Insurance Company, a corporation, wherein plaintiffs seek to recover damages from defendants because of alleged defamatory statements concerning plaintiff Lee McClure appearing in the complaint in a prior action brought by A. J. Stretch against Lee McClure and Thomas Burroughs.

In view of the fact that the cause is Before us on an appeal by plaintiffs from a judgment of dismissal entered after a demurrer to plaintiffs' complaint had been sustained, we shall set out in full the paragraphs of the complaint material to the issues raised on this appeal.

Paragraph 2: 'That the defendants published certain false and defamatory words concerning the plaintiff, Lee McClure in the manner following, that is to say: That on the 1st day of April, 1943, the plaintiff, A. J. Stretch, verified a complaint in an action entitled 'A. J. Stretch vs. Lee McClure and Thomas Burroughs', in an action then pending in the superior court of the state of Washington for King county, and delivered said complaint to his attorneys, who are also the attorneys for the defendant, United Pacific Insurance Company, and placed the same in the hands of the sheriff of Kitsap county on the 12th day of August, 1943, and the said sheriff served the same upon the plaintiffs; that the said complaint, copy of which is hereto attached and marked exhibit 'A' and made a part of this complaint charges the plaintiff, Lee McClure, with a crime.' (Italics ours.)

The material part of the complaint in the case of Stretch v. McClure, referred to as exhibit A, and in which is contained the defamatory words upon which the present action is based, is as follows:

'1. At all times herein mentioned and referred to plaintiff, A. J. Stretch, was the owner of certain premises located at 3621 Airport Way in the city of Seattle, state of Washington.

'2. On or about the 20th day of May, 1941, the defendants, Lee McClure and Thomas Burroughs broke into the abovedescribed premises of the plaintiff and removed therefrom copper tubing belonging to the plaintiff of the value of $74.80 and broke windows of the value of $11.41.'

The plaintiff then prayed for judgment for the above amounts.

It is alleged in paragraph 3 of the complaint in the case now Before us:

'That in bringing said action, the said A. J. Stretch was acting for and on behalf and at the instigation of the United Pacific Insurance Company, which company had been subrogated to a claim growing out of an alleged loss or damage to certain property owned by him and referred to in said complaint, all of which will more fully appear by reference to two letters written by said company to the plaintiffs on November 27th, 1942, and on December 8th, 1942, copies of which are hereto attached and marked exhibits 'B' and 'C' respectively and made a part hereof.'

Paragraph 4: 'That the charges made in said complaint and in said letters are wholly and maliciously false and defamatory and were made for the purpose of extorting money from the plaintiffs and injuring them.'

Paragraph 5: 'That the plaintiff, Lee McClure, does not now and has never known any person by the name of Thomas Burroughs, and that at the time of the alleged theft he was a resident of Sedro-Woolley, many miles distant from the city of Seattle and that he has never been in the vicinity where the said premises mentioned in the complaint referred to are located.'

Paragraph 6 alleges that plaintiff Lee McClure has suffered great personal embarrassment and mental anguish, and has been exposed to ridicule, as the result of such publications.

The letter of November 27, 1942, referred to in paragraph 3 of the complaint, was written by the United Pacific Insurance Company to Lee McClure, 535 Borseth Avenue, Sedro-Woolley, Washington, and, omitting the formal part, is as follows:

'We refer to an incident which occurred May 20, 1941, at Kirkland, Washington in which a copper tubing disappeared and which we are advised by the prosecuting attorney's office that you are one of the parties who is responsible for this loss.

'We are obliged to pay the amount of $75.70 to replace the copper tubing and feel justified in respectfully requesting that you reimburse us for this amount.

'We attach a self addressed stamped envelope and would appreciate a reply from you by return mail.'

Apparently Mrs. Nellie McClure answered the above letter, for on December 8th, the United Pacific wrote Mrs. McClure, Rt. No. 3, Box 55-A, Port Orchard, Washington, as follows:

'Your letter of December 4, 1942 was received by the writer today.

'Your letter was received at such a late date that it would have been impossible for us to accept the appointment suggested in your letter. However, with due regards for rationing etc. at this time we will not be able to have a representative of our company call on you or Mr. McClure.

'In the second place it does not seem that such a call would be in order or necessary. Due to the very nature of this claim, it would appear that it would be very much to Mr. McClure's interest ot send us a money order or check by return mail to liquidate this obligation. Unless this is done we shall have no alternative but to refer the matter to our attorneys in Bremerton.

'An immediate reply will be expected to this letter.'

In so far as the record shows, no further correspondence took place between the parties.

The complaint in the case of Stretch v. Lee McClure and Thomas Burroughs was sworn to on April 1, 1943, and according to the allegations of paragraph 2 of the complaint now Before us, was placed in the hands of the sheriff of Kitsap county on August 12, 1943, and subsequently served upon plaintiffs. It does not appear that any determination of the Stretch case has been made.

Defendants interposed a demurrer to the complaint in the libel action, on the ground that it failed to state facts sufficient to constitute a cause of action against the defendants, or either of them. The trial court, October 1, 1943, after argument of counsel, sustained the demurrer, and thereafter on motion of defendants, entered a judgment of dismissal.

Plaintiffs have appealed from the judgment entered, and assign error on the sustaining of the demurrer.

While appellants admit that matters contained in judicial proceedings are privileged, they argue that the privilege is abused when a person proceeds wantonly, recklessly and without probable cause. This argument is apparently based upon the further statement that this privilege is abused when the claimed defamatory statements are made of and concerning a person who is a stranger to the incidents set forth in the defamatory allegations. This contention must find support, if any there be, in paragraph 5 of the complaint.

It may be admitted that the allegations in the case of Stretch v. McClure charge the defendants therein with a crime, but it requires only a cursory examination of that complaint to show that the allegations therein contained not only had 'some relation' to the subject matter of the litigation, but that they constitute the very essence of the cause of action therein set forth.

It is also apparent from the letters above set out and the subsequent service of the summons and complaint in the Stretch case upon appellant Lee McClure, that it was the intention of the plaintiff in the Stretch case to make Lee McClure a defendant in that case.

While appellant contends he was a stranger to the incidents set out in the Stretch case, he specifically alleges in the complaint now Before us that the respondents 'published certain false and defamatory words concerning the plaintiff, Lee McClure.' It is nowhere alleged in the complaint now Before us that the Lee McClure who was defendant in the Stretch case was not the same person as the Lee McClure who is plaintiff in the instant case, nor is it allged that the court in which the Stretch case was commenced was not a court having jurisdiction to hear and determine that action.

We think it might be well at this time to refer to a statement made in the early case of Abbott v. National Bank of Commerce, 20 Wash. 552, 56 P. 376, 377, as it not only states the general rule relative to statements and allegations made in judicial proceedings, but also gives the reason therefor.

'We think it requires no argument to demonstrate that the words complained of were pertinent and material to the cause, and the question to be determined is, were they absolutely privileged, regardless of whether they were true or false used maliciously or in good faith? The doctrine of privileged communications rests upon public policy, 'which looks to the free and unfettered administration of justice, though, as an incidental result, it may in some instances afford an immunity to the evil-disposed and malignant slanderer.' Bartlett v. Christhilf , 14 A. 518. It cannot be doubted that it is a privilege liable to be abused, and its abuse may lead to great hardships; but to give legal sanction to such suits as the present would, we think, give rise to far greater hardships. The rule is tersely stated in Wilson v. Sullivan , 7 S.E. 274, as...