Moity v. Busch
Decision Date | 07 March 1979 |
Docket Number | No. 6849,6849 |
Citation | 368 So.2d 1134 |
Parties | Warren J. MOITY, Sr., Plaintiff-Appellant, v. Mercer B. BUSCH, Defendant-Appellee. |
Court | Court of Appeal of Louisiana — District of US |
Warren J. Moity, Sr., in pro per.
Voorhies & Labbe, John Chappuis, Jr., Lafayette for defendant-appellee.
Before CULPEPPER, FORET and DOUCET, JJ.
Warren J. Moity, Sr., a layman, appearing in proper person, brought this action against Mercer B. Busch for damages alleged to have been caused by defamatory remarks made while Mr. Busch was testifying in a prior suit as an expert for Mr. Moity's opponent, United Geophysical Corporation. In the alternative, plaintiff alleged "malicious prosecution." On a motion for summary judgment, the trial court dismissed plaintiff's suit. From that ruling, Mr. Moity has brought this appeal, praying that we reverse and remand the case for trial on the merits. The defendant, Mercer B. Busch, has answered the appeal, seeking damages for frivolous appeal.
There is no dispute as to the material facts. Only the legal consequences flowing therefrom are at issue. The pertinent allegations of plaintiff's petition are as follows:
The entire testimony by Busch in the previous suit was filed in support of defendant's motion for summary judgment. Propriety of the summary judgment hinges upon whether or not our law grants Mr. Busch absolute immunity for all statements made by him while testifying as an expert witness. He had many years experience in brick manufacture, construction of brick walls and estimating brick jobs. Busch was clearly qualified as an expert in these fields and was accepted as such by the district judge. While testifying in such capacity, Mr. Busch stated it was his opinion that the cracks in the brick walls of the Moity home were caused by settling of the foundation and not the seismographic explorations which "United Geophysics had recently conducted in the neighboring area, as alleged by plaintiff. Part of the basis for his opinion was the finding of paint in various cracks in the brick, to a depth which could only have been achieved if the cracks were in existence when the house was painted, which painting occurred prior to the seismographic operations.
It is firmly established in this state that testimony given at a judicial proceeding by a non-litigant witness carries with it absolute immunity from a defamation suit stemming from the utterance of such testimony. Terry v. Fellows, 21 La.Ann. 375 (La.1869); Bienvenu v. Angelle, 254 La. 182, 223 So.2d 140 (1969). This protection is granted so that all witnesses may speak freely without the fear of a reprisal suit for slander. As an accepted qualified expert witness, Mr. Busch was free to give his opinion whether others might disagree with his conclusions or not.
In an attempt to provide a basis for liability, appellant cites this court to the case of Bienvenu v. Angelle, supra. Although our Supreme Court there recognized that communications made during investigatory work in the field are not accorded an absolute privilege, they did recognize that "communications made in judicial or quasi judicial proceedings carry an absolute privilege." All of the allegedly defamatory statements made by Mr. Busch were given in his capacity as a witness, under oath, at a formal judicial hearing and in the particular field of his expertise. There are no allegations by plaintiff as to any defamatory statements by Busch during his investigation and preparation for trial. All of defendant's testimony was relevant and his answers entirely responsive to the propounded questions of plaintiff and defendant, both of whom were represented by counsel. A proper reading of Bienvenu only strengthens the lower court's dismissal of this defamatory action, based on testimony by Busch in the prior suit.
There is no basis in the record for plaintiff's alternative demand for damages for malicious prosecution. Busch is not alleged or shown to have ever prosecuted Moity for anything. Busch was not even a party in the prior suit. He was only a...
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