Wells v. Carter

• Decision Date: 04 June 1932
• Citation: 50 S.W.2d 228,164 Tenn. 400
• Parties: WELLS v. CARTER.
• Court: Tennessee Supreme Court

50 S.W.2d 228

164 Tenn. 400

WELLS v. CARTER.

Supreme Court of Tennessee.

June 4, 1932

Appeal from Circuit Court, Marion County; L. R. Darr, Judge.

Action by Houston Wells against Joseph Edward Carter. To review a judgment dismissing the action, the plaintiff brings error.

Affirmed.

J. T Raulston, of South Pittsburg, and J. D. McClarney, of Crossville, for plaintiff in error.

Thos S. Myers, of Chattanooga, for defendant in error.

GREEN C.J.

This is a slander suit, which was dismissed on demurrer.

The declaration averred that, while plaintiff was testifying in a case, the defendant hereto being also the defendant in that case, and after the plaintiff herein had made a certain statement in the course of his testimony in the former case the defendant then and there "maliciously intending to injure plaintiff, in the presence and hearing of divers persons, maliciously and falsely spoke of and concerning plaintiff and of and concerning his said testimony, in substance, the following false, scandalous words: 'Mr Wells, you are swearing a black lie and you know it; why don't you swear the truth?"'

There was an amendment to the declaration in which it was averred that said words were not spoken by the defendant in the legitimate defense of his case, but were voluntary statements made for the purpose of slandering and injuring the plaintiff, and known by the defendant to be untrue.

The point of the demurrer is that the words declared upon, used under the circumstances appearing, were absolutely privileged. We agree with the trial judge that this point is well made.

The general rule is that, in respect of statements made in the course of proceedings before a court of justice, whether by judge, witness, counsel, or parties, there is an absolute immunity from liability to action. It is immaterial that the words were spoken maliciously. Lea v. White, 36 Tenn. (4 Sneed) 111; Cooley v. Galyon, 109 Tenn. 1, 70 S.W. 607, 60 L. R. A. 139, 97 Am. St. Rep. 823; Crockett v. McLanahan, 109 Tenn. 517, 72 S.W. 950, 61 L. R. A. 914; Roberts v. Parker, 156 Tenn. 82, 299 S.W. 779. In Shadden v. McElwee, 86 Tenn. 146, 5 S.W. 602, 6 Am. St. Rep. 821, a witness was held to be without this protection as to his voluntary statements not pertinent to the inquiry before the court. In Ruohs v. Backer, 53 Tenn. (6 Heisk.) 395, 19 Am. Rep. 598, it was held that statements in a pleading concerning one not a party to the suit were not absolutely privileged, but were conditionally privileged. Ruohs v. Backer, however, was expressly overruled on this point in Crockett v. McLanahan, supra.

If, as alleged in the declaration, the testimony of the witness in the former case was material, there can be no question about the pertinency of the observation of defendant in that case that the testimony was false. And parties and counsel, if there were any counsel, were entitled to comment on the testimony given.

In Badgley v. Hedges, 2 N. J. Law, 233, a defendant conducting his own case said of the testimony of a witness,...