Ruohs v. Catherine Backer's Next Friend

• Citation: 53 Tenn. 395
• Parties: Joseph Ruohs v. Catherine Backer's next friend.
• Decision Date: 30 September 1871
• Court: Supreme Court of Tennessee

53 Tenn. 395

Joseph Ruohs

v.Catherine Backer's next friend.

Supreme Court of Tennessee.

September Term, 1871.

FROM HAMILTON.

Appeal in error from the judgment of the Circuit Court, March Term, 1871. JOHN B. HOYL, J.

Trewhitt & Sharp and Key, Eakin & Key for plaintiff in error, insisted:

1. The County Court had jurisdiction of the subject-matter of the petition; the statements complained of as libelous were pertinent to the relief sought, and no malice, in fact, is shown. In such case the statement is privileged: citing 1 Starkie on Slander, pp. 213, 228; Townshend on Slander, ss. 220, 226; 2 Meigs' Dig., s. 1251; 4 Sneed, 111; 2 Hill. on Torts, 363-4.

Nash. H. Burt for plaintiff in error, insisted:

1. The County Court proceedings and proof in this cause clearly show that plaintiff in error was in the bona fide discharge of a private duty--a legal and a moral duty--and in no manner actuated by malice toward defendant in error.

2. The words used were in the course of a legal or judicial proceeding, and however hard they may bear upon the party of whom they were used, they are not actionable without malice.

3. In privileged communications the words themselves are not evidence of malice, but the plaintiff must aver and prove actual malice: White v. Nichols, 3 Howard, 266.

Vandyke, Cooke & Vandyke for defendant in error, insisted:

That in the proceedings in the County Court the defendant in error was in no manner interested; no action of the court was invoked against her; she would in no manner be affected by any decree it might make in the premises, and the libelous statements were neither necessary nor important to the relief sought. In such case the rule protecting statements made in the course of judicial proceedings does not apply: citing 8 Hum., 40;2 Hum., 512; Townshend on Slander, 274, and note 1091; Id., 381-2.

NELSON, J., delivered the opinion of the Court.

In a petition filed in the name of Barbara Maurer and Anna Maurer, minors, by their next friend, Jos. Ruohs, addressed to the Judge of the County Court of Hamilton county, and sworn to December 23, 1868, by Joseph Ruohs, the removal of the guardian of petitioners, was prayed for; and among the causes assigned for the removal, it was alleged that the guardian “has had in his family a girl, who is now probably over sixteen years of age, who came to live with him at about the age of thirteen years, and has remained in his family ever since. Her reputation is ruined, and she is now an example of shame and prostitution.” Catherine Baker, claiming to be the girl thus alluded to, brought this suit, by her next friend, on the 28th of January, 1869; and in her declaration for libel, charges that she is a female under the age of twenty-one years; that she had no interest in, nor connection with, the proceeding in the County Court; that the matter published is false and defamatory; and that the words impute that she had been and was guilty of divers acts of fornication and adultery, and had become a common prostitute and harlot.

The defendant below filed a special demurrer to the declaration, in which he alleges, as cause of demurrer, that the declaration shows that the alleged libel was a matter included in, and part of, a judicial proceeding, and therefore not actionable. The demurrer being overruled, defendant filed a plea of not guilty, and also a special plea of justification, in which he alleged that the petition was a judicial proceeding; that the words were used and written to show that the guardian ought not to retain the guardianship; that he, the defendant, had received information that justified him in making the charge included in said words; that he used the words in said judicial proceeding in good faith and without malice, and that they were never published, unlawfully or otherwise.

The plea of justification was stricken out on plaintiff's motion, and the cause was afterwards submitted to a jury upon the plea of not guilty, and a notice, under the statute, of the real defense, substantially embodying the matter of the plea of justification. They found the issue in favor of the plaintiff, and assessed her damages at $5,000. Judgment was rendered accordingly, and a new trial having been refused, the case was regularly brought to this court by the plaintiff in error.

On the trial of the cause, his Honor the Circuit Judge was requested to instruct the jury, in behalf of the defendant, that “if the words published and charged as constituting the libel were used in a judicial proceeding, it devolves on the plaintiff to prove express or actual malice in the defendant before she can recover.”

In answer to this proposition the court, referring to the defendant, instructed the jury as follows: “Whether he is protected by the alleged legal proceedings, is a question of law to be determined by the court; and as to this last question, the court is of opinion, and so charges you, that the plaintiff in the suit being no party to the record, exhibited and used as evidence (meaning the record containing the petition and other proceedings in the County Court) of the judicial proceedings in which it is alleged the libelous words were employed, the defense of privileged communication can not avail. In this view of the case, you will look to the evidence, and determine from it whether the defendant wrote and published the words laid down in the declaration. If so, were they used in reference to the plaintiff? If not, your verdict ought to be for the defendant. If they were, then you ought to find for the plaintiff.”

In the consideration of this charge, it may be remarked that by s. 2493 of the Code of this State, the County Court has full power to take cognizance of all matters concerning minors and their estates, and that, without reference to more special provisions in the ensuing sections, the power to appoint and remove guardians is deducible from this section alone. Section 2520 makes it the duty of the grand jury to present all abuses, mismanagement and neglect of guardians, and s. 2521 provides that the court shall inquire into the same and make such rules and orders for the removal of guardians and appointment of others, as the court shall think fit, in certain cases therein enumerated, and among others, “where he neglects to educate or maintain his ward, according to his degree and circumstances.” In its broadest sense, the word ““education” comprehends not merely the instruction received at school or college, but the whole course of training, moral, intellectual and physical, and with a view to the highest and best interests of minors, we hold that it is so used in the statute. While the powers of the Chancery Court over the persons and estates of infants is not abridged, the power of the County Court to appoint and remove guardians may be properly exercised upon the principles governing courts of equity; and if the guardian is guilty of gross ill-treatment of his ward, or is in constant habits of drunkenness and gross debauchery, or professes atheistical or irreligious principles, or his domestic associations are such as tend to the corruption and contamination of the ward, or he otherwise acts in a manner injurious to the morals or interests of the ward, the County Court may, in these and similar cases, remove him and appoint a suitable person in his stead: See 2 Story's Equity, s. 1340. So, if the guardian does not faithfully discharge his trust in the management of the ward's estate, he may be removed; and it was long since determined by this court that the conversion of real into personal estate, by a sale at which the guardian himself became the purchaser, although at the full value of the property, was sufficient cause for his removal by the County Court, in a case where there was no necessity for the conversion. See ex parteCrutchfield, 3 Yerg., 337-8.

It was also determined at an early period in this State, and the case has been ever since followed, that a court of chancery, for the benefit of infants, will permit any person, upon his own judgment, at his own will, in the support of some right or the resistance of some injury, to exhibit a bill in chancery in behalf of an infant, even without his knowledge or consent, “only holding over the bringer of the suit the...