Nadeau v. Texas Co.

• Decision Date: 26 May 1937
• Docket Number: 7649.
• Citation: Nadeau v. Texas Co., 104 Mont. 558, 69 P.2d 593 (Mont. 1937)
• Parties: NADEAU v. TEXAS CO. et al.
• Court: Montana Supreme Court

69 P.2d 593

104 Mont. 558

NADEAU v. TEXAS CO. et al.

No. 7649.

Supreme Court of Montana

May 26, 1937

Rehearing Denied June 26, 1937.

Appeal from District Court, Glacier County, Ninth District; R. M Hattersley, Judge.

Action to quiet title by Wilfred Nadeau against the Texas Company and others. From a judgment for plaintiff, defendant the Texas Company appeals. On defendant's motion to strike special concurring opinion from the files.

Motion sustained.

ANGSTMAN J., dissenting.

Y. A Land, of Denver, Colo., and Louis P. Donovan, of Shelby, for appellant.

E. K Cheadle, Jr., of Shelby, and H. C. Hall, of Great Falls, for respondent.

PER CURIAM.

On May 26, 1937, this court delivered an opinion affirming the judgment of the district court. 69 P.2d 586. The CHIEF JUSTICE, concurrently with the promulgation of this opinion delivered a special opinion in the case which did not disagree with the result announced in affirming the judgment in that case, but proceeded further than the majority opinion and concluded by finding the defendant and each of its attorneys guilty of contempt of this court arising out of the presentation of the cause to this court and the conduct of the course of this litigation, and proceeded to attempt to impose a fine and punishment for such contempt upon the defendant in the sum of $25,000, and additional fines on the counsel of $10,000 each, although the maximum fine which may be imposed under the statute for contempt is the sum of $500. Section 9917, Rev.Codes. All the members of this court, aside from the CHIEF JUSTICE, subscribed to the opinion of the court declaring that they disclaimed all responsibility for the remarks, observations, statements and conclusions appearing in the special opinion of the CHIEF JUSTICE.

Now, the attorneys for the defendant have, as individuals and on behalf of their client, filed in this court a motion praying that the special opinion be stricken from the files of the court upon numerous grounds, among which it is asserted that such opinion is "scandalous, scurrilous, and defamatory."

It may be observed, in passing, that at the time of the argument of the cause, neither did the parties nor their attorneys, nor any member of the court, suggest that any contempt had been committed, or was being or was about to be committed. The matter of contempt was not then considered by any one unless it was by the CHIEF JUSTICE, and if so considered by him, he kept his own counsel until long after the conclusion of the argument of the cause and until the conclusion of the deliberation on the case by this court.

Epithets and adjectives are applied to the defendant and its attorneys whereby they are charged with crimes, unprofessional and immoral conduct. To here set forth these various expressions verbatim would be but to perpetuate them upon the records of this court, and if the motion were then granted, its actual purpose would thereby be destroyed. Without question, the words used in the opinion of which complaint is made by the movants are scandalous, scurrilous, and defamatory. The question is thus presented: May we grant the motion in the light of this situation?

Preliminary to the consideration of this question, the inquiry is suggested: May the movants secure relief under the laws relating to libel? A publication is privileged when made "in any *** judicial proceeding." Section 5692, Rev. Codes. An unbroken line of judicial decisions by the English and American courts adheres to the rule that no action will lie against a judge for acts done, or words spoken in his judicial capacity in a court of justice. Judges, when acting in a judicial capacity, are absolutely immune from responsibility for slander or libel. Newell on Slander & Libel (3d Ed.) §§ 517, 518; Mundy v. McDonald, 216 Mich. 444, 185 N.W. 877, 20 A.L.R. 398; see cases collated in note 20 A.L.R. 407; also Article in 9 Col. Law Review, pp. 463 and 600.

The reason for this rule of law was very well expressed by the English court in the case of Scott v. Stanfield (1868) L.R. 3 Exch. 220, 15 Eng.Rul.Cases, 42: "This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences."

Having determined that the movants are without right to secure relief under the law under the subject of libel, some suggestions are made as to relief possible in such a situation as we have here at hand, in the article in the Columbia Law Review, supra, from which we now quote as follows: "Moreover, underlying this whole doctrine of absolute immunity is the conception of an alternative remedy. Although the law, for reasons of public policy, denies an action for defamation, the occasions to which immunity applies almost always afford other remedies, which minimize, if indeed they do not always afford adequate relief for, the damage which a person defamed may have sustained. Of course, these remedies are not uniformly available in all cases; in some instances they are almost entirely lacking; but it is hardly possible to conceive of a case in which there is no recourse of any kind against abuse. In the case of judicial proceedings, in which the rule of immunity has the widest scope, the underlying idea is that there is a tribunal whose proceedings are governed by formal methods specially designed for the orderly and efficient performance of the functions of those who participate in them; a tribunal presided over by a judge or judicial officer, specially equipped for his duties by character, learning and experience, who has the power, and, presumably, the will, to regulate and discipline all those who participate or appear before him. Judicial procedure implies notice to persons in interest, with the right to appear in person and by witnesses in answer to any charges that may be made, and the right to a formal judgment by an impartial court and jury. If a judge forgets his duty and demeans his high office he may be impeached and removed. Jurors, witnesses, counsel and parties litigant who overstep the bounds of decorum may be reprimanded, fined or punished by imprisonment, and the defamatory utterance may be expunged from the record. It is true that punishment for contempt is in theory punishment for an indignity offered to the court, rather than reparation to the aggrieved person for the injury sustained by him. But it is a matter of common observation that in the proper exercise of his powers by a judge, the malicious abuse of their functions by parties, witnesses or counsel harms them rather than the object of their malice. Offending counsel may be disbarred, and, like judges, suspended from the exercise of their office."

Since no other adequate relief is afforded to movants, it becomes most important for us to determine whether any relief may properly be afforded by granting their motion and thereby prevent the perpetuation of this document among the records of this court, as well as its publication in its reports and other law reports.

A careful search has revealed no case in the annals of American Jurisprudence where a judge of the highest appellate court of any jurisdiction has had his judicial utterance called in question in this manner, nor have we found a similar case in the English reports. The courts have, however, on occasion spoken upon the subject of keeping their records free from stain and scandal. "Scandal" is an unnecessary statement which bears cruelly upon the moral character of an individual, or the statement of anything which is contrary to good manners, or anything which is unbecoming the dignity of the court to hear. Kelley v. Boettcher (C.C.A.) 85 F. 55, 57. In the case of Green v. Elbert, 137 U.S 615, 624, 11 S.Ct. 188, 191, 34 L.Ed. 792, Mr. Chief...