Schultz v. Strauss

• Decision Date: 23 February 1906
• Citation: 127 Wis. 325,106 N.W. 1066
• Parties: SCHULTZ v. STRAUSS.
• Court: Wisconsin Supreme Court

127 Wis. 325

106 N.W. 1066

SCHULTZ

v.STRAUSS.

Supreme Court of Wisconsin.

Feb. 23, 1906.

Appeal from Superior Court, Milwaukee County; J. C. Ludwig, Judge.

Action by Frank F. Schultz against Edward F. Strauss. From an order directing that defendant be not required to answer certain questions before a court commissioner, and that he be purged of any alleged contempt by reason of his failure to answer, plaintiff appeals. Affirmed.

Plaintiff was indicted by the grand jury, and was charged with extortion and bribery. He alleges that the charges are entirely false and unfounded in fact, and avers that the evidence, upon which the district attorney and the grand jury acted, was presented to them by the defendant and that his statements are false and defamatory. He also claims that by reason of the false and defamatory language spoken of him by the defendant to the grand jury and the district attorney, he has been much defamed and damaged in his character. This action is founded on the claims of plaintiff as above set forth. Plaintiff made an affidavit, setting forth that he had no personal knowledge of the words spoken by the defendant and his ability to discover particulars concerning them, and he demanded an examination of the defendant under section 4096, Rev. St. 1898, to enable him to frame his complaint, and for this purpose he instituted a discovery proceeding before a court commissioner of the Milwaukee county circuit court. The points upon which discovery is sought, as alleged in plaintiff's affidavit, are, to ascertain the exact language used by defendant in speaking of and concerning plaintiff, the time, the occasion and the persons present; whether the statements were true or false and whether prompted by motives of express malice; and by whom the matters covered by the alleged defamation were brought to the attention of the grand jury. Upon this examination, the defendant, under advice of counsel, refused to answer certain questions propounded to him, upon the ground that the communications and statements, sought to be elicited by these inquiries, were made to and in the presence of the members of the grand jury for the June, 1905 term of the municipal court for Milwaukee county, and while they were in session, and also to Francis E. McGovern in his official capacity, then the district attorney of Milwaukee county, and that the information sought had relation to matters then pending for investigation by the grand jury and the district attorney. Upon application to the court for a review of the court commissioner's proceedings and for directions as to further proceedings before him, the court ruled and ordered that “all orders and directions made by the court commissioner upon the examination of the defendant in this cause, whereby defendant was ordered and directed to answer certain questions tending to disclose communications made by the defendant to the grand jury of Milwaukee county while in lawful session and to the district attorney of Milwaukee in his official capacity, be and the same are hereby reversed, vacated, and set aside and the defendant is by this order purged of any alleged contempt by reason of his failure to comply with orders and directions of the court commissioner in reference to making answer to said questions.” The court further directed that he be not required to answer the questions theretofore propounded upon such examination tending to disclose any statement or communication he had made to the grand jury in the conduct of their proceedings, or to the district attorney and his assistants in their official capacities. This is an appeal from such order of the court.Arthur Cotzhausen (F. W. Von Cotzhausen, of counsel), for appellant.

Hoyt, Doe, Umbreit & Olwell, for respondent.

SIEBECKER, J. (after stating the facts).

It is contended that the order appealed from should be reversed because the subject concerning which the court forbids inquiry to be made is not within the field of privilege. Plaintiff instituted this action to recover damages, upon the ground that he has been seriously defamed in his character and standing, and that the law awards a right to recover compensation for the injury. The order appealed from is specific in forbidding any disclosure of statements and communications made by the defendant to the grand jury in the course of their proceedings or to the district attorney and his assistants in their official capacities. Appellant's counsel frankly admits this to be the effect of the order but challenges its validity, and asserts that statements and communications so made to a district attorney or a grand jury are not privileged upon the grounds claimed, namely, that the statements and communications were made in the course of judicial procedure or that the secrecy respecting grand jury proceedings (as to such statements and communications) must be maintained. The statute, providing discovery in proceedings as instituted by plaintiff, is framed upon the idea that a plaintiff requires the aid of this remedy to enable him to frame his complaint for the cause of action arising out of the transactions concerning which he seeks discovery. It is therefore essential to inquire at the very threshold of the case: Has plaintiff any right in the law to recover compensation, as for a defamation, on account of any statement or communication the defendant may have made to the grand jury or the district attorney in his official capacity? It is well recognized by numerous adjudications “that words spoken in the course of judicial proceedings, though they are such as impute crime to another, and therefore if spoken elsewhere, would import malice and be actionable in themselves, are not actionable if they are applicable and pertinent to the subject of inquiry.” Hoar v. Wood, 3 Metc. (Mass.) 193. From an early time this rule has had support and it has been adhered to in the decisions of this court, as is evidenced by the following cases: Jennings v. Paine, 4 Wis. 358;Calkins v. Sumner, 13 Wis. 193, 80 Am. Dec. 738;Larkin v. Noonan, 19 Wis. 82. This appears to be the accepted doctrine of the common law in this country, and it is well entrenched by the decisions of many courts, among which are the following: Acre v. Starkweather, 118 Mich. 214, 76 N. W. 379;Hart v. Baxter, 47 Wis. 198, 10 N. W. 198;...