Dunham v. Powers

The opinion of the court was delivered by Prout, J. The jury having returned a general ■ verdict in this case, the judgment should have been arrested by the county court, as the slanderous words set forth in the second count of the declaration, (saying nothing of the first,) do not warrant the inuendoes explanatory of their sense and meaning. These words, which it is alleged were spoken by the defendant with the intent to cause it to be suspected that the plaintiff had been guilty of the crime of perjury, imply and point to a different species of fraud; and that is, to a deceit, by means of which the plaintiff obtained an over, insurance of his property. The words set forth in the third count import a charge of perjury, and it is not open to this objection; but notwithstanding this count is sufficient, the judgment should have been arrested, as the cause of action declared upon in this count is not the same as that set forth in the second. It must be the same to avoid the effect of a motion in arrest; and this is what the statute of 1865 (p. 24) referred to in the argument means, and only that. The case, however, presents a more important question. On the trial it appeared, as the case shows, that the slanderous words, set forth in all the counts of the declaration, were spoken by the defendant while acting as a juror in a cause in which the plaintiff was a party and had testified — that they were spoken by the defendant to his fellow jurors in the jury room, and while they had the case under consideration, or before -they had returned-their [7] verdict into court. The defendant claimed that what he said under these circumstances was not actionable but privileged ; or, if not absolutely privileged, prima facie so, if he acted honestly and in the belief that he was properly discharging his duty as a juror, and he requested the court to so charge. The court refused to comply with the request, and gave instructions under which the plaintiff obtained a verdict; and it is now urged, that the defendant was entitled to the instructions contained in the first proposition of his request. If he was, that substantially determines the controversy, and renders a consideration of the other question, except as incidentally involved, unnecessary. j\ A jury participate in the trial of a cause in obedience to the requirement of law, and may be coerced to perform that service. It is a public duty; and, if sometimes, in the discussions of the jury room, they do not indulge in the same pertinency of remark and comment concerning the cause submitted to them as the court, they- are presumed to act as conscientiously, and with reference to the evidence before them. Within the limits of their functions, and for the purpose of deciding a disputed question of fact, they possess peculiar powers adapted to that end, which are of a judicial nature, requiring the exercise of deliberation and judgment. Whenever duties of this nature are imposed by law upon a party, the due execution of which depends iipon belief and the exercise of the judgment, there is an exemption from responsibility by civil action for the manner in which those duties are performed, or even the motives which influence it. This is the general rule applicable to cases which concern the administration of justice between party and party; and upon principle, a juror, while acting as a part of the court, is entitled to the benefit of this rule of impunity, in respect to what he says in the jury room concerning the cause, which also applies to the judge, or to a. grand juror, or member of a legislative body, — and he should be subject to no greater risk or hazard. j| Acting upon oath, and when, as the .present case shows, there was a conflict .in the testimony, the defendant no doubt entertained a decided opinion, and as a juror he was called upon to express it, as he had a right, as well as the grounds or reasons of it, to his fellows, in justification of his - view of the [8] case. A, jury trial is rare these days, as all experience shows, in which a question of veracity or credibility does not arise, involving somewhat the character for truth and reliability of a witness or party, and this is just what occurred in the case alluded to. Whenever this is the case, jurors no doubt discuss the question submitted to them under the influence of more or less feeling, but they are answerable for it only to their own consciences. “ The place protects them,” and this was the ancient common law, unless they gave a false verdict, when they were proceeded against in a very different manner, as they may be now, for misconduct in the discharge of their duty. As to members of a legislative body, the rule as held in all the cases is, that in the performance of their official duties they are absolutely protected. No action of slander will lie against them, however false and malicious-may be the charge they make against the reputation of another, if made in the exercise of the functions of their office, or within the line of their business or duty; and so of grand jurors and magistrates, charging others with the commission of crime. Of judges and jurors, it is said in Sutton v. Johnstone., 1 Term, 493, although a point not decided, that “ the law gives ' faith and credence to what they do, and therefore there must always in and what they do be cause for it, and there never can be malice , in what they do.” To subject either to a prosecution for slander for what they may say in the course of the proceeding, as it is expressed, would affect their independence and degrade the admin- - istration of the law. Counsellors and parties conducting their own cases are privileged, when they confine “ themselves 'to what was pertinent to the question before the court.” Hastings v. Lusk, 22 Wend., 409; Mower v. Watson, 11 Vt., 536. In the last case cited it is remarked that “ the privilege of all whose duty or interest calls them to participate in the proceedings of'courts of justice,, is not to be made liable to an action of slander or libel for anything spoken or written therein, provided it be in the ordinary course of proceeding, or bona fide.” But there is a distinction, we think, as to the extent of the privilege growing out of the legal duty of a juror to act in that capacity and the duty of Counsel arising from his employment and consequent interest, . [9] which induces Mm to participate in the proceeding. The former acts in obedience to the requirement of law and on oath; the other from motives of interest and pecuniary gain. One is a part or branch of the court, and within the absolute rule of impunity, while the other is only prima facie privileged for what he may say in the course of .the proceeding, and in which he participates. In O’Donaghue v. M’ Govern, 23 Wend., 26, Cowen, J., observes : “ Sometimes the person complained of is absolutely protected. This would be so where the libel was published by Mm in the course of Ms business or duty as a member of the legislature. The place protects Mm. So of judges, jurors and witnesses,” while and when they are acting in the line of their business or duty. These principles we think not only in entire harmony with the law, but fitting and necessary, that jurors may discharge their duties without fear or apprehension of a prosecution at the suit of parties feeling aggrieved by their verdict. Coffin v. Coffin, 4 Mass., 1; Harris v. Huntington, 2 Tyler, 129; Henderson v. Broomhead, 4 Hurl. & Nor., 567; Thomas v. Churton, 110 E. C. L., 475; Townshend on Slander and Libel, § 227 and note 1113. The policy of the law is further shown by well understood rules applicable to petitions and motions for new trials. In those cases the affidavits of jurors can not be used to show misconduct on their part in making up the verdict, because, as it is said, the practice would be mischievous. Throwing open the door of the jury room for the purpose sought by this action would be equally so, if not more injurious to the community. Having these views of the merits of the case, the judgment of the county • court is reversed and judgment on the verdict arrested, the defendant to take no costs, except costs in this court.