Shodden v. McElwee

• Decision Date: 01 November 1887
• Parties: SHODDEN v. MCELWEE. [*]
• Court: Tennessee Supreme Court

5 S.W. 602

86 Tenn. 146

SHODDEN v. MCELWEE. ^[*]

Supreme Court of Tennessee.

November 1, 1887

Error from circuit court, Roane county; S. A. ROGERS, Judge.

Young & Young, for plaintiff.

L. A Gratz and Nelson & Burke, for defendant.

FOLKES J.

This is an action for slander. The words as charged in the declaration are, "He (meaning plaintiff) stole my horse," and "He (meaning plaintiff) came to my house while I was away, and stole my horse," and "He (meaning plaintiff) is a rogue, for he stole my horse, and I did not see him back for days." The defendant pleaded the general issue, and in addition thereto pleaded that the words, if spoken, were uttered as a witness under oath, in a cause pending in the circuit court of Roane county, wherein the plaintiff here was plaintiff there, and defendant here was defendant there, and that as such witness, replying to questions propounded to him, his answers were privileged.

While the matters set out in the special plea might have been relied on under the plea of not guilty, the defendant might properly have interposed the special plea in a case where the occasion of the speaking or publishing furnishes a defense to the action. Dunn v. Winters, 2 Humph. 513. To this special plea, the plaintiff replied that the words were not spoken in response to questions propounded to him, but were maliciously injected into the testimony voluntarily and falsely, and were not pertinent to the issues in said suit, but were spoken for the purpose of defaming and injuring plaintiff. To this replication there was a demurrer to the effect that "it was immaterial to the validity of the defense set up in the special plea, whether the words spoken by the defendant concerning the plaintiff, as a witness under oath in a judicial proceeding were uttered though not in answer to any question; neither is it material whether or not they were spoken maliciously and voluntarily, in neither event can defendant be held liable therefor," etc. The demurrer was presented under several heads, but the substance and effect of them all is contained in the language above quoted. The circuit court sustained the demurrer, and the plaintiff declining to further reply, the suit was dismissed, and plaintiff has appealed in error. The judgment of the circuit court is erroneous, and must be reversed.

It is insisted on behalf of the defendant that it is not a matter between individuals, but concerns the due administration of justice, that a witness should be allowed to speak, according to his belief, the truth without regard to consequences, and should be encouraged to do this by the consciousness that his utterances are absolutely privileged, leaving him only liable to indictment for perjury, if he speaks other than the truth. That witnesses should not be hampered, while on the stand, with fears of a suit for damages. Mr. Townshend, in his work on Slander and Libel, (3d Ed.) says, (p. 387:) "This is the view in the courts of England, and some of the states," and the author lends the weight of his own opinion thereto. While plausible, it is in our opinion unsound. The act of testifying as a witness must be either in the exercise of a right, or the performance of a duty, and in either case the act must be performed in good faith. If he avails himself of his position as a witness to maliciously answer, with a knowledge that such answer is not pertinent or relevant, the law withdraws the protection it would otherwise have afforded him.

Where the defendant, a witness, was asked if a certain person was attended by a physician, his answer was, "Not as I know of; I understood he had a quack; I would not call him a physician," in an action brought for these words, it was held proper to charge the jury that if they "believed from all the circumstances proved, from the questions put from the manner of answering, and from the answers themselves, that the defendant testified in good faith, or in the belief that his answers were pertinent or relevant, then the law protected him; but if the defendant was actuated by mere malice, and used the words for the mere purpose of defaming the plaintiff, then the law withdrew the protection it would otherwise have afforded him." White v. Carroll, 42 N.Y. 161; Smith v. Howard, 28 Iowa, 51; Barnes v. McCrate, 32 Me. 442. It follows, of course, that the witness is not liable if the answers are pertinent and responsive; or, as it is expressed in some of the cases, the relevancy of the words complained of to the matter at issue, is the test of the privilege. In Odgers, Sland. & Lib. 191, a much later work than Mr. Townshend's, it is said: "A witness in the box is absolutely privileged in answering all questions asked him by counsel on either side, and even if he volunteers an observation, a practice much to be discouraged, still if it has reference to the matter in issue, or fairly arises out of any question asked him by counsel, though only going to his credit, such observation will also be privileged. But a remark made by a witness in the box, wholly irrelevant to the matter of inquiry, uncalled for by any question of counsel, and introduced...