Robinson v. Home Fire & Marine Ins. Co.

• Citation: 242 Iowa 1120,49 N.W.2d 521
• Decision Date: 16 October 1951
• Docket Number: No. 47876,47876
• Parties: ROBINSON v. HOME FIRE & MARINE INS. CO.
• Court: United States State Supreme Court of Iowa

Page 521

49 N.W.2d 521

242 Iowa 1120

ROBINSON v. HOME FIRE & MARINE INS. CO.

No. 47876.

Supreme Court of Iowa.

Oct. 16, 1951.

Oliver, Glanton & Dixon, Des Moines, for appellant.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, for appellee.

WENNERSTRUM, Justice.

Plaintiff's action is based on a claim for alleged slander. In her petition she states that she was defamed by reason of oral statements made by an attorney representing the defendant in a conference with a prospective witness in a case then pending in the District Court of Polk County, Iowa, in which case the plaintiff in the present case was the plaintiff and the defendant herein was the defendant. In a separate division of the petition plaintiff claims that a representative of an adjustment company, who it is claimed was the agent for the defendant also made slanderous statements concerning the plaintiff to the attorney representing the plaintiff at a time when he was negotiating a settlement of a claim upon a fire loss by reason of a policy of insurance issued by the defendant. The defendant filed a motion to dismiss the two divisions of plaintiff's petition heretofore referred to. It was sustained by the trial court and the plaintiff has appealed.

The appellant alleged in division four of an amendment to her petition that on or about the 20th day of March, 1950, an attorney representing the appellee in the action brought on the fire insurance policy interviewed one, Clifton Davis, and in his presence and in the presence of other parties unknown to the appellant, made the following statement: 'Clifton, you are still going to testify that Gracie Lee Robinson set the fire that damaged the house and burned up her husband aren't you? You know that Gracie Lee Robinson did set the fire and burned up her husband, and I am sure you want to tell the jury about the same.' It is alleged that said statement was false and defamatory and was uttered and understood as a charge of arson and murder and was for the express purpose of injuring the plaintiff.

It was further alleged in a separate division, Division V, of appellant's amended petition that on or about the 26th day of November, 1949, an attorney representing her had an interview with a representative of an adjustment company, who, it is claimed, was the agent of the appellee company. In this interview, which was before any proceedings were filed in court on the part of the appellant by reason of her claimed fire loss and the policy of insurance, it is alleged that the adjustment company representative stated: 'I don't believe we can pay a claim on a fire that has been set. Gracie Lee Robinson set this fire that burned up her house and caused the damage to the property, and we don't intend to pay for a fire that she has purposely set.' It is alleged that these statements were false and defamatory and were uttered and understood as a charge of arson and murder and were for the express purpose of injuring the plaintiff. It is further asserted in this division of appellant's petition that this last referred to statement was made in the office of the adjustment company to the appellant's attorney while he was attempting to negotiate a settlement of the claim based on the policy of insurance covering the property of the appellant that had been damaged by fire.

The appellee filed a motion to dismiss the two divisions of appellant's amendment to petition herein referred to. Relative to the one first mentioned, it is alleged that the appellant's petition affirmatively shows that the language and communication in question were privileged and were material and relevant to an action then pending in the Polk County District Court; that the words spoken by appellee's counsel, when interviewing a witness in an action then pending, were absolutely privileged and cannot be made the basis of an action for defamation; and that no publication of the defamatory words in question was charged which could give rise to an action against the appellee.

In a second division in the appellee's motion to dismiss, it is alleged that the petition affirmatively shows that the words in question spoken by the adjustment company's representative of the appellee to appellant's attorney were made in the course of negotiations in which the attorney was attempting to procure a settlement on behalf of his client under a policy of insurance which the appellant had; that this matter was confidential and privileged and no publication of the same is alleged which could give rise to an action for defamation by the appellant against this appellee; that the communication made to the appellant's attorney was while he was acting in a confidential and fiduciary capacity; that if there was any actionable publication of the defamatory words charged, such publication must have been made by the appellant's attorney and the appellee is not bound thereby or in any way responsible for his actions. It is also claimed that the communication compalined of was invited by appellant's counsel who had gone to the office of the adjustment company for the purpose of negotiating a settlement of the claim of the appellant against the appellee and that her attorney thereby invited the communication complained of and the same is privileged and was not published by the appellee in such a manner as to give rise to the action for defamation by the appellant against the appellee.

Subsequent to the filing of the motion to dismiss, appellant's counsel filed a resistance to it. It was therein contended that the statements made by the appellee's attorney and referred to in one of the divisions of the appellant's petition were not privileged, as it is shown that the statements were made out of court. It is further alleged in a separate paragraph of the resistance that the statements made by the representative of the adjustment company to the appellant's attorney are not privileged and the attorney claims no privilege by reason of the conversation with the adjustment company's representative of the appellee. It is also claimed that the matters referred to in the appellant's petition were not confidential and were not made to the appellant's counsel in a fiduciary capacity.

Thereafter, as previously stated, the trial court sustained the motion to dismiss the two divisions in question.

I. Privileged defamatory matters are divided into two general classes: (1) those that are absolutely privileged, and (2) those which are qualifiedly or conditionally privileged. 33 Am.Jur., Sec. 124, p. 123; 53 C.J.S., Libel and Slander, § 87, page 141; Nichols v. Eaton, 110 Iowa 509, 511, 81 N.W. 792, 47 L.R.A. 483, 80 Am.St.Rep. 319; Laun v. Union Electric Company, 350 Mo. 572, 166 S.W.2d 1065, 144 A.L.R. 622, 626. When absolute privilege exists it affords a complete defense. 3 Restatement of the Law of Torts, p. 219; 33 Am.Jur., Sec. 125, p. 123; 53 C.J.S., Libel and Slander, § 87, page 142; Nichols v. Eaton, supra. Even the existence of express malice does not destroy an absolute privilege. Ryan v. Wilson, 231 Iowa 33, 52, 300 N.W. 707, 712; Stafney v. Standard Oil Co., 71 N.D. 170, 299 N.W. 582, 588, 136 A.L.R. 535, 542.

II. It has also been held that the occasion when an alleged slanderous or libelous statement is made may afford an absolute privilege. 53 C.J.S., Libel and Slander, §§ 87(c), 88, pages 142, 143; 33 Am.Jur., Sec. 125, p. 123; Ryan v. Wilson, 231 Iowa 33, 44, 300 N.W. 707, 712. A privileged occasion is one on which a privileged person is entitled to do something which no one not within the privilege is entitled to do on that occasion. 53 C.J.S., Libel and Slander, § 87(c), pages 142, 143. Privileged occasions are likewise '* * * divided into two classes by the text-writers: Those known as 'absolutely privileged,' and those 'conditionally privileged.' Words spoken upon an occasion 'absolutely privileged,' though spoken falsely, knowingly, and with express malice, impose no liability for damages in an action for slander or libel, while, on the other hand, words spoken upon an occasion only 'conditionally privileged' impose such liability if spoken maliciously or not in good faith; the difference between the two being that in the former case the freedom from liability is absolute and without condition, while in the latter case it is made to depend upon the absence of express malice. * * *' Sebree v. Thompson, 126 Ky. 223, 103 S.W. 374, 375, 11 L.R.A.,N.S., 723, 724, 15 Ann.Cas. 770.

'* * * The circumstances are the occasion upon which the language is used and it is the occasion which is privileged. Odgers, Libel & Slander, p. 227; Townshend, Slander & Libel, Sec. 209, p. 297; 9 Col.L.R. 468. * * *' Laun v. Union Electric Co., 350 Mo. 572, 166 S.W.2d 1065, 1069, 144 A.L.R. 622, 627.

The court has the initial responsibility of determining whether the occasion upon which a party published a claimed defamatory matter was privileged. This responsibility on the part of the court exists regardless whether the issues involve the existence of an absolutely privileged occasion or one that is only conditionally privileged. 3 Restatement of Law of Torts, Sec. 619, p. 310; Abraham v. Baldwin, 52 Fla. 151, 42 So. 591, 10 L.R.A., N.S., 1051, 1054; Children v. Shinn, 168 Iowa 531, 549, 150 N.W. 864.

III. A matter that is reasonably pertinent to the issues is absolutely privileged whether contained in pleadings, affidavits, statements made by witnesses to counsel before a trial, or made in open court. Harper on Torts, Defamation (1933) Sec. 248, pp. 530, 531; Prosser on Torts, Defamation, Privilege (1941) pp. 824, 827. The question whether the matter stated is relevant is for the determination of the court and not for the jury. Bussewitz v. Wisconsin Teachers' Ass'n, 188 Wis. 121, 205 N.W. 808, 810, 42 A.L.R. 873; Pacific Employers Ins. Co. v. Adams, 196 Okl. 597, 168 P.2d 105, 107; Inselberg v. Trosty, 190 Misc. 507, 77 N.Y.S.2d 457, 459; Andrews v. Gardiner, 224 N.Y. 440, ...