Rogers v. Thompson

• Decision Date: 20 November 1916
• Parties: ROGERS v. THOMPSON.
• Court: New Jersey Supreme Court

99 A. 389

89 N.J.Law 639

ROGERS

v. THOMPSON.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1916.

(Syllabus by the Court.)

The Chancellor, and Garrison, Kalisch, and Williams, JJ., dissenting.

Appeal from Supreme Court.

Action by Edwin D. Rogers against Charles S. Thompson. From a judgment for defendant, plaintiff appeals. Affirmed.

V. Claude Palmer, of Mt. Holly, for appellant. James Mercer Davis, of Camden, for appellee.

BERGEN, J. At a meeting of the creditors of a bankrupt held for the election of a trustee by a referee in bankruptcy duly appointed by a federal court having jurisdiction of bankruptcy cases, the plaintiff was a candidate for election as trustee, and the defendant, appearing for some of the creditors, opposing such election said to the referee:

"He is not a fit man. He is not straight and upright. I do not think our claim will be properly taken care of."

Because of this statement the referee refused to approve the election of the plaintiff, and another was selected, whereupon plaintiff brought his action against the defendant for slander based upon the words above quoted from the plaintiff's complaint. The trial court directed a verdict for the defendant upon two grounds: (a) That the communication being uttered in the course of a legal proceeding was privileged; (b) that, if the proceedings were not judicial, the utterance was made under a qualified privilege requiring plaintiff to prove malice, in which respect the court held that the plaintiff had failed. The pertinent part of the case bearing upon the question whether the statement was made during the course of a judicial proceeding or not consists of an admission by defendant that the referee "was conducting a creditors' meeting for the election of a trustee in the bankruptcy estate of Samuel N. Lamb in Mt. Holly; that at that time the creditors were assembled and nominations made for the office of trustee; that in that proceeding Mr. Charles S. Thompson appeared as attorney for one of the creditors; and that he made the statement attributed to him in the complaint on that occasion." And also of the record of the proceedings before the referee in which it appeared, among the list of "appearances," that the defendant was present representing two creditors, and that when plaintiff was nominated a majority of the creditors voted for him, whereupon the defendant objected to his appointment, and after taking testimony the referee sustained the objection, and called for other nominations, which was complied with and another person elected. It also appears that defendant was a member of the bar of the state of Pennsylvania and duly admitted to practice in the United States District Court for the District of the State of New Jersey, that court having jurisdiction of the bankruptcy matter which it lad referred to the referee before whom proceeding were being held, and that the defendant was present as an attorney representing two creditors entitled to participate in the election.

It is necessary to determine at the outset whether the utterance complained of, assuming it to be slanderous, was used in a legal proceeding by one authorized to speak for any of the parties interested in the investigation, and whether it was relevant and pertinent to the matter under consideration, for, if so, it was privileged even if malicious and intended to defame. In La Porta v. Leonard, 97 Atl. 251, Mr. Justice Minturn, speaking for this court, said:

"Counsel is not liable to a civil action nor to a criminal proceeding for anything he may have said in the course of a trial or investigation although malicious and intended to defame provided it was relevant and pertinent to the...