Vogel v. Gruaz

• Decision Date: 04 February 1884
• Citation: 28 L.Ed. 158,4 S.Ct. 12,110 U.S. 311
• Parties: VOGEL, Ex'r, etc., v. GRUAZ
• Court: U.S. Supreme Court

110 U.S. 311

4 S.Ct. 12

28 L.Ed. 158

VOGEL, Ex'r, etc., v. GRUAZ.

February 4, 1884.

J. K. Edsall and Jno. B. Hawley, for plaintiff in error.

H. S. Greene and Jno. M. Palmer, for defendant in error.

BLATCHFORD, J.

This is an action on the case, brought by Timothy Gruaz, against Rudolph Bircher, to recover damages for the speaking and publishing of false, malicious, scandalous, and defamatory words, charging the plaintiff with being a thief, and with having stolen the money of the defendant, meaning the crime of larceny. The suit was commenced in a state court of Illinois, and was removed by the defendant into the circuit court of the United States for the Southern district of Illinois. At the trial before a jury a verdict was rendered for the plaintiff, June 6, 1879, for $6,000 damages. On the next day the defendant filed a motion for a new trial. On the fourteenth of June the defendant died, on the twelfth of July an order abating the case was moved for, on behalf of the defendant, and on the sixteenth of August the court overruled the motion for a new trial and the motion for an order of abatement, and entered a judgment for the plaintiff, against Bircher, for $6,000 and costs, as of June 7, 1879. The order for judgment recited that the hearing by the court of the motion for a new trial was, when it was filed, postponed to a then future and convenient day of the same term, and that the defendant died pending the hearing of the motion. Leave was given to the executor of the defendant to prepare a bill of exceptions and to take a writ of error. The bill of exceptions being signed, it was filed by the executor, and the writ of error was issued. Various errors are assigned, and among them that the circuit court did not grant the motion to abate the suit, and that it rendered a judgment against Bircher after his death. But it is unnecessary to pass on those questions, because we are of opinion that the judgment must be reversed for another error committed at the trial.

Three witnesses for the plaintiff gave evidence tending to prove the speaking to them by the defendant of more or less of the words set forth in the declaration; and afterwards C. L. Cook was sworn as a witness for the plaintiff, and testified that he was state's attorney for Madison county, Illinois; he had a slight acquaintance with Bircher; and that he knew Gruaz. The following proceedings then occurred: 'Question. I will ask you if you had any conversation with Dr. Bircher with regard to Gruaz, and, if so, when was it? Counsel for defense asked witness if at that time he was occupying the same position he now holds. Answer. Yes, sir. Q. It was communicated to you while you held that position and were acting in that capacity, whatever was communicated to you by Bircher? A. Yes, sir. (Defendant's counsel object to witness testifying to matters disclosed to him by the defendant under the circumstances stated, on the ground that such communications are to be treated as privileged.) The Court. I will ask the witness if he regarded it professionally as a privileged communication? A. I had never met defendant before; he was introduced to me by a citizen of our place, and he informed me that he wanted to talk with me with regard to a matter he wanted to bring before the grand jury. (Objected to.) The Court. I will allow the witness to state what the doctor said on that occasion. Of course, if he made the communication to the witness in good faith, there would be no malice about it, and I shall instruct the jury to* dis- regard it. The objection is overruled. To which ruling of the court the defendant at the time excepted. A. As I stated, I had at that time no acquaintance with defendant whatever. He inquired for the state's attorney, and was introduced to me, and he spoke of his affairs. He said he wanted to bring a matter before the grand jury in regard to Mr. Gruaz. I talked with him in regard to the nature of the matter, and he talked pretty freely in regard to it, and I directed him to the grand jury room. He said a good many things. He was evidently in earnest at the time, expressed himself very freely in regard to him. I would not like to swear to the exact words used, or that anybody used at the time. I can give the substance of what he said, I suppose. He wanted to prosecute Gruaz for stealing, was the amount of it. I recollect this: he charged him with having stolen his money, and I asked him how, and he told me how it had been done. Gruaz was his agent and handled his funds, rented his farms, and had failed to account for a large amount of money, he told me, and he charged him in this conversation with having stolen his money, and he said he wanted to know if there was any law in this state to prosecute a man for that. I have no objection to state any words. I remember his making the charge that he had stolen his money, but I can't swear that the word 'thief' was used at that time; that it was in substance, undoubtedly. My impression is that this was the March term, 1878, of the circuit court of Madison county, either that or October term, 1877; my recollection and decided impression is that it was the spring term, 1878. Dr. Bircher went into the grand jury room and gave his statement to the grand jury. He was anxious, of course, to have the indictment found, and he evidently believed or so expressed himself. (Counsel for defendant objected to witness stating his opinion about what defendant evidently believed.) The Court. He said he went before the grand jury, and said he seemed to be in earnest in his movements, but he didn't say what took place before the grand jury. Don't know, I suppose. Witness. No, I don't know. Cross-examination. Maj. Prickett introduced Bircher to me; never saw him before in my life. I was certain he came to see me as prosecuting attorney, in good faith. That was his business, as he stated it to me. After he made his statement to me I advised him to go before the grand jury; directed him to their room. He went there by my advice. Hold on—I...