Parker v. Kirkland

• Decision Date: 19 January 1939
• Docket Number: Gen. No. 39804.
• Citation: 298 Ill.App. 340,18 N.E.2d 709
• Parties: PARKER v. KIRKLAND.
• Court: United States Appellate Court of Illinois

298 Ill.App. 340

18 N.E.2d 709

PARKER

v.KIRKLAND.

Gen. No. 39804.

Appellate Court of Illinois, First District, Second Division.

Jan. 19, 1939.

Appeal from Superior Court, Cook County; Joseph Sabath, Judge.

Action by Harrison Parker against Weymouth Kirkland for slander. From an order dismissing for insufficiency plaintiff's amended complaint, plaintiff appeals.

Affirmed.

James C. Byrne, of Chicago, for appellant.

Kirkland, Fleming, Green, Martin & Ellis, of Chicago (Howard Ellis, J. B. Martineau, and George L. Haggard, all of Chicago, of counsel), for appellee.

FRIEND, Justice.

Harrison Parker appeals from an order of the Superior Court dismissing for insufficiency his amended complaint, wherein he alleged that Weymouth Kirkland, defendant, maliciously and falsely uttered and published certain statements or remarks derogatory to Parker's character and reputation, while acting as counsel for the Tribune Company in defense of a complaint brought by Parker before the Board of Appeals of Cook County, seeking a review of the capital stock assessment against the Tribune for the year 1935.

The amended complaint consists of two counts, the first of which alleged in substance that in the course of the hearing before the Board, which is characterized as “a purely administrative body,” and “not a quasi judicial body or a judicial body,” and in the presence of some five hundred persons, Kirkland as attorney for the Tribune in the matter then on hearing before the Board, maliciously and falsely assailed Parker's character, integrity, honesty and moral qualities, by speaking of him as a “contemptible falsifier,” whose sole purpose in filing the complaint “is of blackmailing the Chicago Tribune;” that Parker had a “diarrhea of the mouth,” is a “rat,” a “dirty rat,” and “ought to be taken for a ride.”

The second count of the complaint is more specific, in that it sets forth the proceedings before the Board and incorporates as exhibits both Parker's complaint and a stenographic report of the proceedings, showing the statements or remarks made by Kirkland in their connection with the subject matter of the hearing, and alleging that the remarks were not germane to questions or issues then pending before the Board; and it is averred that by reason of the utterances of these false, scandalous and malicious statements by Kirkland, Parker's business and reputation for honesty, integrity and character were greatly injured; wherefore he seeks judgment against Kirkland in the sum of $100,000.

The hearing before the Board of Appeals was had on June 3, 1936. There were present Messrs. Whalen and Drymalski, members of the Board, Parker, acting pro se, Kirkland and Leslie A. Hodson, a lawyer associated with Kirkland in his firm, acting as counsel for the Tribune, and J. E. Battle, appearing for John S. Clark, Tax Assessor of Cook County. The hearing was predicated on Parker's sworn complaint and the Tribune's answer thereto. Parker appeared before the Board as a taxpayer, acting on his own behalf and all other taxpayers, and in his complaint he alleged that the Assessor of Cook County, John S. Clark, was in a conspiracy with the Tribune Company, “to pass on to the tax distressed bungalow owners, the debt harassed farmers, and day laborers the taxes that should be imposed on and paid by the provisions of the Illinois Constitution, in derogation of the right reposed in the Illinois legislature to make the tax laws, in defiance of the rules and regulations made and promulgated by the Illinois Tax Commission that have never been repealed, rejected, or modified either by the Illinois Tax Commission, or by any Court, in violation of the duty imposed upon him by law and his oath of office, the said John S. Clark has set up a new tax that he brazenly dubs a capital stock tax in order to hide the fraud that exists in the Cook County Assessor's office to soak the poor, the needy and defenseless for the benefit of the opulent and politically powerful Tribune Company that for sixty odd years has masqueraded as a ‘Free Press' in order to cover the fact that it has enriched its opulent, greedy and selfish stockholders by cheating and defrauding the State of Illinois of money that was and is due to the State as capital stock taxes; * * *.”

It was Parker's contention that Clark had entirely omitted assessing the Tribune for capital stock tax by not following Rule 11 of the Tax Commission,¹ and that his failure to assess a capital stock tax against the Tribune was not the result of mistake or error of judgment, but was in pursuance of a conspiracy and “done maliciously, fraudulently and with malice aforethought, and for the purpose of favoring the said Tribune Company.” Parker contended that if the assessor had followed Rule 11, the legal capital stock tax of the Tribune would have been approximately two million dollars in addition to the $95,000 personal property tax which he described as a “mere pittance of a tax.” He asked the Board to make the capital stock assessment defined in the statutes and to fix the tax thereon pursuant to the State laws and Rule 11 of the Tax Commission, and to determine the fair cash value of the Tribune's capital stock, or in the alternative that the Board direct the assessor so to do.

The Tribune answered Parker's sworn complaint, denying that it had received any preference over other taxpayers, and averred that the assessment had been uniformly and fairly made; it pointed out that certified copies of its balance sheets and other books and records had been submitted to the assessor; denied all allegations of conspiracy, characterizing them as “contemptible falsehoods,” and averred that Parker was filing the complaint in bad faith and in an attempt to blackmail the Tribune into making a financial settlement of a libel suit which Parker had filed against the Tribune. In this connection it was averred that in the previous year Parker had complained of the Tribune Company's capital stock assessment for the years 1873 to 1934, inclusive; that upon hearing of the former complaint in 1935 it was shown that Parker had filed his complaint solely for the purpose of compelling the Tribune to settle the libel suit which he had pending against it, and was still pending, and that the present complaint had been lodged as part of his common scheme to blackmail the Tribune into settling the libel suit; and it was suggested in the answer that the record as to Parker's attempted blackmail made before the Board during 1935 be incorporated in the proceedings then before the Board.

It has long been the well recognized rule of law that proceedings in the regular course of justice are privileged. Under the English decisions, statements of counsel in the course of a judicial proceeding are held to be absolutely privileged (Astley v. Younge, 2 Burr 807; Munster v. Lamb, 11 Q.B.D. 588), and this privilege “attaches to all proceedings of, and to all evidence given before, any tribunal which by law, though not expressly a court, exercises judicial functions--that is to say has power to determine the legal rights and to effect the status of the parties who appear before it * * *. It is not necessary that the tribunal should have all the powers of an ordinary court; e. g., the proceedings will still be absolutely privileged although the tribunal cannot compel the attendance of witnesses, or has no power to administer an oath, provided it can discharge its judicial duties without such powers.” (Odgers on Libel and Slander, 6th ed., p. 195, citing cases.) In America the same privilege protects counsel “not merely in regular courts of justice but in all inquiries before magistrates, referees, municipal and ecclesiastical bodies” (Newell on Slander and Libel, 4th ed., sec. 363, p. 397), but subject to the qualification that the statements must be pertinent and applicableto the subject of inquiry and made in courts or tribunals having jurisdiction of the subject, and power to hear and decide the matter of complaint, and in such case the motive of counsel in using the language is immaterial. Hoar v. Wood, 3 Metc. 193, 44 Mass. 193;Marsh v. Ellsworth, 50 N.Y. 309;Jennings v. Paine, 4 Wis. 358; Lawson v. Hicks, 38 Ala. 279, 81 Am.Dec. 49; Rice v. Coolidge, 121 Mass. 393,23 Am.Rep. 283. Subject to the restriction that a party or counsel shall not avail himself of his situation, to gratify private malice by uttering slanderous expressions, either against a party, witness or third person, which have no relation to the cause or subject matter of the inquiry, our courts have uniformly held that on the whole, for the public interest, and best calculated to subserve the purposes of justice, counsel ought to be allowed full freedom of speech in conducting causes and advocating and sustaining the rights of their constituents, unimpaired by numerous and refined distinctions. Hoar v. Wood, 3 Metc. 193, 44 Mass. 193. Said the court in that case, page 194: “Great latitude of remark and observation is properly allowed to all persons, both parties and counsel, in the conduct and management of all proceedings in the course of the administration of justice. It is for the interest of the public, that great freedom be allowed in complaints and accusations, however severe, if honestly made, with a view to have them inquired into, to have offenses punished, grievances redressed, and the laws carried into execution. And this extends not merely to regular courts of justice, but to all inquiries before magistrates, referees, municipal and ecclesiastical bodies; and they are only restrained by this rule, viz., that they shall be made in good faith, to courts or tribunals having jurisdiction of the subject, and power to hear and decide the matter of complaint, or accusation, and that they are not resorted to, as a cloak for private malice.” In Illinois this doctrine was approved in the early case of Spaids v. Barrett, 57 Ill. 289, 11 Am.Rep. 10, wherein the court,...