Union Mut. Life Ins. Co. v. Thomas

• Decision Date: 04 October 1897
• Docket Number: 363.
• Citation: 83 F. 803
• Parties: UNION MUT. LIFE INS. CO. v. THOMAS.
• Court: U.S. Court of Appeals — Ninth Circuit

83 F. 803

UNION MUT. LIFE INS. CO. v. THOMAS.

No. 363.

United States Court of Appeals, Ninth Circuit.

October 4, 1897

Crowley & Grosscup, R. S. Jones, and B. A. Crowl, for plaintiff in error.

Harry L. Smith, George H. Walker, and Jesse Thomas, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The plaintiff in error, the Union Mutual Life Insurance Company was the defendant in an action for libel. Its principal assignment of error on the writ of review is that the circuit court refused to instruct the jury to return a verdict for the defendant. The facts, so far as they are pertinent to the present inquiry, are these: In the year 1894 one Johanna C Martin brought an action in the state of Washington, against the insurance company, to recover upon a policy of insurance issued by the company upon the life of her husband. The company made answer, denying the death of the insured, and alleging as an affirmative defense that the plaintiff in that action and her attorneys had entered into an agreement and conspiracy to defraud the defendant, and that said plaintiff and her attorneys 'have no knowledge or information whatsoever of the death of said Jonas Martin, but have alleged that the said Jonas Martin is dead for the sole purpose of carrying out the agreement, conspiracy, and fraud hereinbefore set out. ' Jesse Thomas, one of the attorneys for the plaintiff in said action upon said insurance policy, thereupon brought an action against the insurance company for damages, alleging that the matter set forth in said affirmative defense was libelous. The insurance company, in its answer to the complainant, relied upon the defenses (1) that the matter so alleged in its answer to the action upon the contract of insurance was privileged matter and was not actionable; and (2) that the same was inserted in its answer by its attorney without its knowledge or consent. Upon the same grounds, it is now contended that the circuit court should have directed the jury to return a verdict for the defendant.

Contrary to the rule of the English courts, the American courts have established the doctrine that matter inserted in a pleading in court is privileged only when connected with the subject-matter of the litigation. It is perhaps not necessary that it be in all cases material to the issues presented by the pleadings, but it must be legitimately related thereto or so pertinent to the subject of the controversy that it may, in the course of the trial, become the subject of inquiry. White v. Nichols, 3 How. 266; Hoar v. Wood, 3 Metc. (Mass.) 193; McLaughlin v. Cowley, 127 Mass. 316; Gilbert v. People, 1 Denio, 41; Sherwood v. Powell, 61 Minn. 479, 63 N.W. 1103; Maulsby v. Reifsnider, 69 Md. 143, 14 A. 505; Moore v. Bank, 123 N.Y. 420, 25 N.E. 1048. Tested by this rule, the matter alleged by the insurance company in its answer to the suit of Johanna Martin was not privileged. The issue in the action was whether or not the insurance company was liable upon the policy. Its defense was that the insured was still living. Instead of relying upon that defense, it attempted to asperse the character of the attorneys who were conducting the suit, by charging them with libelous matter, which, if true, added in no way to the force of its allegation that the event upon which alone its liability was to attach had not occurred, to wit, the death of the insured. The matter so alleged was not pertinent to the issues in the case, and upon motion it was struck out of the answer by the court. In the case of Moore v. Bank, supra, a bank sued its cashier upon his bond for misappropriation of funds, and alleged that the funds had been misappropriated 'by collusion with the teller.' It was held that the allusion to the teller was not a privileged communication, but was prima facie libelous. In Hyde v. McCabe (Mo.) 13 S.W. 875, where it had been alleged, in an affidavit on a motion to require the plaintiff to give security for costs, that the affiant believed the plaintiff to be insolvent, and thereupon the plaintiff's attorney filed a counter affidavit, denying the insolvency, and alleging that the affidavit in support of the motion was 'a corrupt, voluntary, and willful case of false swearing,' it was held that such averment in the counter affidavit was not sufficiently relevant to the issue to be privileged, and that whether or not affiant made such charge maliciously, without believing it to be relevant, and without reasonable and probable grounds for such belief, was a question of...