Miller v. Gust

• Decision Date: 20 November 1912
• Court: Washington Supreme Court
• Parties: MILLER v. GUST.

127 P. 845

71 Wash. 139

MILLER v. GUST.

Supreme Court of Washington

November 20, 1912

Department 2. Appeal from Superior Court, King County; H. A. P. Myers Judge.

Action by Pauline Miller against Sarah A. Gust. From a judgment of dismissal, plaintiff appeals. Affirmed.

H. E Foster, of Seattle, for appellant.

Edward Judd, of Seattle, for respondent.

ELLIS J.

This is an appeal by the plaintiff from a judgment, upon a demurrer to the complaint, dismissing an action for libel. The alleged libelous matter was contained in papers filed in the divorce suit of Gust v. Gust, 127 P. 292, in the superior court of King county, which was recently reviewed by this court on appeal. In that case the complaint charged adultery between the defendant therein and some woman whose name was not given. Later an affidavit was filed in that case stating that the woman referred to in the complaint was the plaintiff in the present action. The complaint in this action alleged these facts in detail, and stated that the defendant (respondent here) by these allegations maliciously and wickedly intended to injure the appellant in her good name fame, and credit, and to bring her into public scandal, infamy, and disgrace; that the charges were false; and that the respondent at the time of making them so knew.

The appellant contends that, by the provisions of the statute (Rem. & Bal. Code, § 294) charges of this character against a female are actionable, regardless of the usual rule of privilege. We think not. The statute says that such words shall be actionable 'in the same manner as in the case of slanderous words charging a crime,' etc. If, therefore, the words complained of were used under circumstances in which any other charge of crime would be privileged, then they also would be privileged.

The rule of absolute privilege as to charges of crime made in the course of judicial proceedings which, if spoken or otherwise published elsewhere, would be actionable is succinctly stated by the Supreme Court of Massachusetts as follows: 'Then we take the rule to be well settled by the authorities that words spoken in the course of judicial proceedings, though they are such as impute crime to another, and therefore if spoken elsewhere, would import malice and be actionable in themselves, are not actionable, if they are applicable and pertinent to the subject of inquiry. The question, therefore in such cases is not whether the words spoken are true, not whether they are actionable in themselves, but whether they were spoken in the course of judicial proceedings, and whether they were relevant and pertinent to the cause or subject of inquiry.' Hoar v. Wood, 3 Metc. (Mass.) 193, 197. The foregoing language was quoted by this court with approval in Abbott v. National Bank of Commerce, 20 Wash. 552, 56 P. 376, in which case it is shown on copious authority that the privilege is grounded in a wholesome public policy which regards the public good, resulting from a free and untrammeled inquiry in courts of justice, as paramount to the redress of occasional private wrongs which may result from an abuse of the privilege. The following authorities in additio to those cited in Abbott v. National Bank of Commerce, supra, further exemplify the broad and absolute ...