Schmitt v. Mann

• Decision Date: 09 June 1942
• Citation: 291 Ky. 80
• Parties: Schmitt v. Mann.
• Court: United States State Supreme Court — District of Kentucky

291 Ky. 80

Schmitt v. Mann.

Court of Appeals of Kentucky. Common Pleas Branch, First Division.

June 9, 1942.

1. Libel and Slander. — Statements in pleadings filed in judicial proceedings are "absolutely privileged" when material to the subject under inquiry, though it is claimed that they are false and alleged with malice.

2. Libel and Slander. — Generally, pertinent matter in pleadings, motions, affidavits and other papers in any judicial proceeding is "absolutely privileged" though false and malicious, but matter which is clearly impertinent and irrelevant and also false and malicious is actionable.

3. Libel and Slander. — The rule that statements in pleadings filed in judicial proceedings are "absolutely privileged" when material, pertinent, and relevant to the subject under inquiry, though it is claimed that they are false and alleged with malice, applies to the privilege accorded witnesses in judicial proceedings.

4. Libel and Slander. — Where allegedly defamatory affidavit in support of petition for new trial on ground of fraud by the successful party was executed after judgment and prior to filing of petition, petition to set aside the judgment and grant defendant a new trial was a step in the original case, and hence affiant's affidavit was executed in a "pending judicial proceeding" entitling affiant to assert plea of privilege as a defense (Civil Code of Practice, sec. 518).

5. Libel and Slander. — The doctrine of "privileged communications" rests upon "public policy" which looks to the free and unfettered administration of justice, though as an incidental result it may afford an immunity to the evil-disposed and malignant slanderer.

6. Libel and Slander. — A witness is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding and as a part of a judicial proceeding in which he is testifying if it has some relation thereto.

7. Libel and Slander. — Where affiant, after entry of a judgment, executed affidavit imputing statements indicating guilt of subornation of perjury to plaintiff's attorney, for use in petition by defendant for new trial on ground of fraud of the successful party, the statements were "libelous per se" but were privileged, since statements in pleadings filed in judicial proceedings are "absolutely privileged" when material, pertinent and relevant to the subject under inquiry, notwithstanding affiant's alleged unworthy motives (Civil Code of Practice, sec. 518).

Appeal from Jefferson Circuit Court.

Henry I. Fox for appellant.

Lawrence S. Grauman for appellee.

Before Joseph J. Hancock, Judge.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

The appellant, M. Joseph Schmitt, an attorney and member of the Jefferson county bar, instituted an action for damages against Irvin Mann for libel. The petition alleged that the libel was contained in an affidavit executed by Mann and filed with his approval in a proceeding in the Jefferson circuit court to which he was not a party. On the trial of the case the court, at the conclusion of plaintiff's evidence, sustained the defendant's motion for a directed verdict in his favor on the ground that the affidavit of defendant, which contained the alleged libelous statements, was privileged. This appeal tests the propriety of that ruling.

The affidavit which was the basis of the suit for libel was executed May 22, 1936, and was filed in the Jefferson circuit court on November 12, 1936, with an amended petition in an action instituted under Section 518 of the Civil Code of Practice for the vacation of a judgment rendered April 19, 1934, in an action styled "Lillie May Humphrey Adm'x of Louis Humphrey, deceased, v. Dorothy L. Mann," on the ground that fraud had been practiced by the successful party in its obtention. The judgment sought to be vacated had been entered upon a verdict returned for the plaintiff in the sum of $10,000. The appellant, M. Joseph Schmitt, was the attorney for the plaintiff in that action, and appellee, Irvin Mann, assisted the plaintiff in obtaining witnesses and in other ways though the defendant, Dorothy L. Mann, was his niece. The suit was for damages for the death of Louis Humphrey caused by the negligence of the driver of a truck allegedly owned by Dorothy L. Mann. The principal defense made by Dorothy L. Mann was that she was not the owner of the truck at the time of the accident in which Humphrey lost his life. J.R. Browning, a witness introduced by the plaintiff, testified to facts sufficient to take the case to the jury on the question of ownership. After the trial Browning executed an affidavit in which he stated that he had sworn falsely at the trial at the solicitation of the plaintiff's attorney, M. Joseph Schmitt. Browning's affidavit was set out in full in the original petition for a new trial filed September 9, 1936, and the affidavit was filed as an exhibit with the amended petition on November 12, 1936, along with the affidavits of Irvin Mann and others. It may be said in passing that Browning repudiated his affidavit on the trial of the present case saying he was drunk when he signed it and had no recollection of having executed it. The appellee, Mann, in the affidavit which is the basis of this action for libel set out a statement made to him by appellant just after the verdict was returned in the case of Humphrey's Adm'x v. Dorothy L....