Nix v. Caldwell

• Decision Date: 02 October 1883
• Parties: Nix v. Caldwell.
• Court: Kentucky Court of Appeals

81 Ky. 293

5 Ky.L.Rptr. 324, 5 Ky.L.Rptr. 275

Nix v. Caldwell.

Court of Appeals of Kentucky.

October 2, 1883

1. Upon a trial of R. before a lodge of Masons, appellant was called before a committee and testified. Appellee made an affidavit in reference to appellant's evidence, that he could not be believed on oath. Neither were members of the lodge.

2. Held --That appellee's affidavit cannot be regarded in law as a privileged communication.

3. Where the common protection of society requires that the communication should be made, if made in the absence of malice, it will be held to be privileged.

4. But although one honestly believes that his neighbor is not entitled to credit on oath, he will not be justified in publishing it to the world, however honest he may be in that belief.

5. Even in the administration of justice, where the witness is compelled to testify (and is not responsible if his statements are untrue unless guilty of perjury), he cannot be allowed in bad faith, with the knowledge that his answer is irrelevant to the question, to defame a party to the litigation.

6. The statute in regard to taxation of costs directs the clerk to tax the allowance to witnesses, which the court may, by order, confine to not exceeding two to any one point. It is for the court to exercise its discretion in this regard.

APPEAL FROM SCOTT COMMON PLEAS COURT.

GEO. C DRANE FOR APPELLANT.

1. The affidavit of appellee is not a privileged communication. No person has the right to voluntarily make such statements in regard to another. The affidavit is not made in confidence in the discharge of any duty, but voluntarily offered. (Falkard's Starkie on Slander, secs. 688, 689; 16 N.Y 373; 3 Johns., N. Y., 180; 15 Barb., 105; 23 Wend., 726; 8 Blackford, 157; 2 Bush, 568; Townshend on Slander, secs. 233 234.)

2. The court erred in overruling appellant's motion for an order instructing the clerk to tax not exceeding the costs of two witnesses for appellee attending the trial or testifying by deposition. (Gen. Stat., ch. 26, sec. 32.)

SMITH &amp NEEDHAM FOR APPELLEE.

1. The allegations contained in the amended answer show that appellee's affidavit was a privileged communication. Appellee, when called upon by Redman and the committee trying his case, was under both a moral and social obligation to give the information contained in his affidavit. (Odgers on Libel and Slander, 1 Am. ed., 196-'7-'8, 203-'4; Starkie on Slander, 292; Harper v. Harper, 10 Bush, 455; Lucas v. Case, 9 Bush, 302; Hilliard on Torts, 329, 317; 16 N.Y. 374; 5 Cash, 412; York v. Johnson, 116 Mass.; Hart v. Reed, 1 B. Mon., 166; Greenleaf on Ev., volume 2, 421; Wilhoit v. Hancock, 1 Bush, 368; Henly v. Blackburn, 1 Dana, 4; Curd v. Lewis, 1 Dana, 352; Hercheral v. Ambler, 4 Dana, 168; Civil Code, sec. 134.)

2. The motion of appellant for an order to instruct the clerk, in taxing costs, not to tax exceeding two witnesses for appellee attending the trial, was properly overruled. (Gen. Stat., ch. 26, sec. 32.)

OPINION

PRYOR JUDGE:

This action was instituted in the Grant circuit, and by change of venue heard in the Scott circuit. It was brought by the appellant Nix, against the appellee Caldwell, for an alleged libel published by the latter, affecting injuriously the character of the appellant. The libel was in the form of an affidavit, voluntarily given by the appellee, at the instance of a member of the Stewartsville Lodge of Masons, to be read on the trial of one of its members.

The accusation pending was against one Redman, and the appellant (plaintiff below) had testified before a committee of the lodge with reference to the charge, and the appellee, at the request of the party on trial, as well as a committee of the lodge, was sworn by a justice of the peace, and made an affidavit under his signature, in substance, " that the appellant was a man of bad character, and so regarded by his neighbors, and he would not believe him on oath."

The appellee pleads--

First. That what he stated was then and is now true.

Second. That the affidavit was made in good faith, believing the same to be true, and without malice, or any intention on his part to injure the plaintiff, but for no other purpose than to give to the lodge the information he thought, in good faith, he had of and concerning the appellant's character, all of which was done in a prudent and confidential manner, without malice, and in the discharge of a social and moral duty, & c.

The appellant and the appellee were not members of the lodge, and, so far as the record shows, were not members of the order.

The appellant objected to the filing of the amended answer containing the second ground of defense, and also objected to an instruction embodying the legal proposition presented by the amended answer; but his objections were overruled, a trial had, resulting in a verdict and judgment for the defendant (appellee).

The court, in the instruction, said, in substance, to the jury " that if the defendant, at the time he gave the affidavit, testified in good faith, and to what he believed to be true concerning the plaintiff's character, and without any intention to injure the plaintiff, the publication complained of was privileged and excusable in law.

The words published were actionable, and if the defense in the amended answer brings the case within the rule of privileged communications, then, before the appellant can recover, although the words published may be untrue, he must show the existence of express malice.

The rule laid down in Townshend to the effect that " every one who believes himself to be possessed of knowledge, which, if true, does or may affect the rights and interests of another, has the right, in good faith, to communicate such, his belief, to that other, and whether or not he has personally any interest in the subject-matter of the communication," is certainly very broad and comprehensive in its meaning, but certainly cannot apply to the character of case being considered. It is also said by Starkie that " communications made in confidence to persons interested, or by those interested, supposing them to be true, will relieve the party making them from responsibility, in the absence of express malice." (1st Starkie on Slander, 321.)

This doctrine applies to cases which, where the parties, by reason of their relation...