Stewart v. Hall

• Decision Date: 14 November 1885
• Citation: 83 Ky. 375,7 Ky.L.Rptr. 323
• Parties: Stewart v. Hall, & c.
• Court: Kentucky Court of Appeals

83 Ky. 375

7 Ky.L.Rptr. 323

Stewart v. Hall, & c.

Court of Appeals of Kentucky.

November 14, 1885

APPEAL FROM JEFFERSON CIRCUIT COURT.

M. A. &amp D. A. SACHS FOR APPELLANT.

1. What a witness says must be pertinent, or believed so by him, in order to be privileged. (White v. Nichols, 3 How., 266; White v. Carroll, 42 N.Y. 161; Barnes v McCrate, 32 Maine, 442; Hawkins v. Summer, 13 Wis. 193; McLaughlin v. Cowley, 127 Mass. 316; Story v. Wallace, 60 Ill. 51; Morgan v Booth, 13 Bush, 480; Forbes v. Johnston, 11 B Mon., 51; Thom v. Blanchard, 5 Johns., 523; Elam v. Badger, 23 Ill. 498; Gilbert v. People, 1 Denio, 41; Odgers on Libel and Slander, side pages 266, 268, 269; R. v. Lord Abbington, 1 Esp., 226; R. v. Creery, 1 M. & S., 273.)

2. Where the occasion renders the publication privileged, the jury may take the language into consideration to determine the intent. (Townshend on Slander and Libel, sections 244 b, 288, 388, 399; 19 Md. 450.)

3. Whenever there is evidence of malice, either extrinsic or intrinsic, in answer to the immunity claimed by reason of the occasion, a question arises which the jury, and the jury alone, ought to determine. (Addison on Torts, section 1169; Campbell v. Gray, 5 Ky. Law Rep., 240; Nix v. Caldwell, Ibid., 275.)

WALTER EVANS FOR APPELLEES.

1. The alleged defamatory matter having been published in the course of a judicial proceeding, to-wit: In the brief of counsel, furnished to the court, pursuant to its rules, it was absolutely privileged. (Odgers on Libel and Slander, side pages 182, 183, 184 and 186.)

2. If not absolutely privileged, the manner and occasion of its publication show it to be privileged, unless it is alleged and proved by the plaintiff that there was express malice, and that the publication was made in bad faith, wantonly and needlessly, and as a mere cover to an attack upon plaintiff's character. (Odgers on Slander and Libel, side pages 183, 184, 190, 196 and 197; Forbes v. Johnson, 11 B. M., 51; Townshend on Slander and Libel, section 209 and note, 224 and note, 224 a and note, and sections 225 and 226.)

3. The burden of proof is upon the plaintiff to show this express malice. (Odgers on Slander and Libel, side page 269; Harper v. Harper, 10 Bush, 455.)

4. When the facts are ascertained, the judge is to decide whether the publication is privileged. (Odgers on Slander and Libel, side page 185.)

OPINION

HOLT JUDGE:

The property of the Jeffersonville and Fifteenth Street Christian Church, in Louisville, having been sold for the payment of certain liens, there remained after their payment a considerable fund, which was claimed by each of the two parties then existing by reason of a division in the church. An action was brought in the Louisville Chancery Court of the style of Smith, & c., v. Hagerman, & c., to settle the right to it. The prime cause of the division was the election of the appellant, W. W. Stewart, to an eldership in the church, and his subsequent removal upon the alleged ground that he was " not of good report." It was claimed by the Stewart or " Hagerman party," that the " Hall-Skene party" had, by the adoption of what the former denominated " a creed," dissolved their relation with the church, as it recognized no guide in religious matters save the Bible. Upon the other hand, the Hall-Skene party said that they had only adopted rules of church discipline, and that the other party had voluntarily abandoned the church, owing to its action as to Stewart. The question of whether a " schism" existed within the meaning of the statute, which regulates the property rights of the parties in such a case, was involved, and each side, therefore, proceeded to take testimony as to the division, and the causes which had led to it. The deposition of the appellant, Stewart, was taken upon the part of the defendants, he testifying at length as to the matters involved, and upon his cross-examination a printed article, which reads thus, and which had been published in the Christian Standard or the American Christian Review, or perhaps in both, was presented to him, and he was asked by the appellee Evans, who was the counsel for the plaintiffs in the suit (the appellees, Hall and Skene, who were plaintiffs in the suit, also being present), whether he was the same person named in it, and he was then examined as to the matters mentioned in it:

" To whom it may concern: Wm. W. Stewart and his wife Margaret, from Edinburgh, Scotland, were separated from the First Church of Christ, in this city, for gross dishonesty, about six months ago, since which time they and their family, consisting of a daughter about twenty years of age, three sons, aged respectively about eight, thirteen and fifteen years of age, have gone South. When last heard from, they were at Atlanta, Ga., purposing to go to Montgomery, Ala. From the last number of the ‘ Standard,’ it appears that he or they are now in Texas. When they came here, about twelve years since, he had the assumed name of Henderson, and, as it now appears, they have long been living on others. That they will continue to do so as far as they can there is little doubt. He was in the boot and shoe business here, and failed or compromised every two or three years, in the meantime borrowing wherever he could get money, or indorsements to raise it, and finally left them to pay his debts as best they could. He is of quiet, pleasant demeanor, of steady habits, and religious; withal, is very apt to make friends, perchance victims. It is deemed an act of simple justice that our generous-hearted brethren should be placed on their guard.

Done by order of the Church.

J. M. L. CAMPBELL, Church Clerk.

Detroit, January 20, 1871."

It is the practice, and perhaps a rule, of the court in which the suit was pending to require the parties to file briefs before the hearing, and the case having been argued, the appellee Evans' argument was printed by and at the cost of one who was interested in the case, but is not a party to this action, and filed as the brief in the case. In the discussion he had referred to and quoted said printed article, it being then a part of the testimony (although subsequently, and by the final judgment, it was stricken out of the record, and excluded as incompetent evidence), and hence it was re-published in the brief.

The appellant, Stewart, then brought this action for libel against the appellees, E. G. Hall, Wm. Skene and Walter Evans, basing it both upon the publication by them of said article when his deposition was taken and the printing of it in the brief.

The appellees denied that they were actuated by malice toward the appellant, and in their answers set forth in detail the circumstances of the publication; that they acted in good faith, and believed, even if it were not, that the alleged libel was pertinent, and material evidence for them.

Malice not being implied from the publication, owing to the occasion and circumstances under which it was made, the appellant attempted to show express malice upon the part of the appellees toward him, by proving what had taken place or been said by them in the business or regular governmental meetings of the church. This evidence, however, only tended to show that two of the appellees had been present at said meetings and that one, or perhaps both, of them had taken a part in the discussion relating to the appellant as an elder, and in deposing him from...