Sebree v. Thompson

• Decision Date: 19 June 1907
• Citation: 103 S.W. 374,126 Ky. 223
• Parties: SEBREE v. THOMPSON.
• Court: Kentucky Court of Appeals

103 S.W. 374

126 Ky. 223

SEBREE v. THOMPSON.

Court of Appeals of Kentucky.

June 19, 1907

Appeal from Circuit Court, Scott County.

"To be officially reported."

Action by Mattie Thompson against J. C. B. Sebree. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. C B. Sebree, for appellant.

V. F Bradley & Son and Finnell & Finnell, for appellee.

LASSING J.

Appellees Mattie Thompson and husband, Frank Thompson, instituted an equity suit in the Scott circuit court against appellant, J C. B. Sebree, wherein they sought to have a deed, absolute on its face, adjudged to be a mortgage, and also to have certain questions of account between themselves and appellant settled and adjusted. During the preparation of this equity suit for trial, and after the appellees had both testified, appellant was called and testified for himself as a witness in said case. During the progress of his testimony he made of and concerning the appellees the following statements: "The allegation in the plaintiffs' petition that there was a contract between the plaintiffs and the defendant made at the time of the execution or delivery of it [the deed] or as part of it is untrue, and known to the plaintiffs [[[Thompson and wife] to be untrue at the time they made the statement and swore to the petition." Also the following: "The allegation in the petition of plaintiffs that the deed executed by the plaintiffs was intended to be a mortgage to secure $1,215 or any other sum, is false, and known to both the plaintiffs, at the time they swore to that petition, to be false." Also the following: "The statement that plaintiffs tendered the defendant any money or stated to defendant that they were ready to settle with him, and that there was an open account between plaintiffs and defendant for board, or anything is false, and known to them to be false at the time they swore to the petition." Also the following: "The idea of his going there pursuant to any contract with plaintiffs or either of them made in January, or any other time, is absolutely false, and known by plaintiffs to be false at the time they so swore." Also the following: "The plaintiffs' statement that they fed that cow a stalk of fodder of their own, or bought any, or anything else, is absolutely false and untrue, and know to them to be untrue at the time they so swore." Thereafter Mattie Thompson filed suit in the Scott circuit court against J. C. B. Sebree, seeking to recover from him the sum of $5,000 because of the speaking of the words above given of and concerning her, alleging that each and all of the statements were slanderous, and were made for the purpose of injuring her good name and reputation. The defendant admitted the speaking of the words, and alleged that they were true or substantially true, and, for further defense, pleaded that the statements were made and the words spoken by him while he was giving his deposition in a legal proceeding between himself and plaintiff after he had been sworn; that the matter about which he was testifying and concerning which he made the alleged slanderous statements was fully set out in plaintiffs' pleading, and that his answers were responsive and pertinent to the questions at issue in the equity suit between himself and plaintiffs; that he believed that his answers were material and necessary to his defense; and that they were made for the purpose of presenting his defense, and without any desire or intention to injure plaintiff or her character in any way. The material allegations of the answer were traversed in the reply. On the issue thus joined, the case was submitted to a jury, who returned a verdict in favor of plaintiff for $1,000. Because of certain alleged errors during the progress of the trial, the defendant, Sebree, prosecutes this appeal.

The only question which we deem it necessary to determine is: Were the words spoken by appellant actionable, or, rather, was the occasion upon which these words were spoken what is known as a "privileged occasion"? The rule is well settled that in actions for libel or slander the defendant is permitted to show, if he can, that the circumstances under which the words charged were spoken were such as to protect him from liability for what would otherwise be an actionable wrong. There are occasions when for the public good and in the interests of society one is freed from liability that would otherwise be imposed upon him by reason of the publication of defamatory matter, and these occasions are called "privileged occasions." Such occasions are 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. The decisions of courts of last resort, while in perfect harmony and accord as to these two classifications, vary materially in the arranging and grouping of the occasions that may be termed "absolutely privileged" and those "conditionally privileged"; some courts holding that the proceedings in a court of justice are "absolutely privileged," while others hold that they are only conditionally so. In England all proceedings before a court of justice are held to be "absolutely privileged," and this rule applies alike to judges, litigants, their counsel, and to witnesses. The English rule has been adopted and followed with approval in many of the state courts, while in many other state courts proceedings in a court of justice are held to be "privileged" only so far as they are applicable and pertinent to the subject of inquiry, and are therefore "conditionally privileged."

Our court has not passed upon this direct question, although in the case of Gaines v. Ætna Insurance Co., 104 Ky. 696, 47 S.W. 884, in passing upon the sufficiency of a petition wherein the plaintiff sought to recover of the defendant because of certain alleged libelous matter set up in an answer in a former suit between plaintiff and defendant, this court said that the alleged libelous matter was "privileged," although the party making such allegations acted in bad faith, and knew at the time they were made, and before, that they were false, and without color of truth or probability, and that they were made in order to defame, injure, and ruin the plaintiff about whom they were spoken; for, said the court: "The paragraph of the answer objected to as libelous was certainly pertinent and relevant as to the defense presented by appellee to that action, and, though the allegations be untrue, and were known to be untrue when made, and also conceding that they were made with bad motives, still, for obvious grounds of public policy, no action will lie therefor. * * * We know of no court holding that a party is liable for damages caused by a vexatious and spurious defense, even though it be for delay merely to just demand. If the defense be pertinent and relevant, and one permitted by law, a party has a right to make it, without subjecting himself to an action for libel if he fails to maintain it. This is 'absolutely privileged."' The rule thus announced by this court is rather in support of the English doctrine, which holds that proceedings in a court of justice are "absolutely privileged," for the court said that in the presentation of such defense as he desired to make, even though made with the knowledge that it was false, and for the express purpose of injuring and defaming another, yet the pleader was protected by the "absolute privilege" of the occasion; the question of good faith not entering into the consideration at all, and the...