King v. McKissick

HAWLEY, District Judge (orally). The third count of the demurrer goes directly to the substance of the complaint, and will be first considered. The contention of defendant is that both publications were absolutely privileged; that no action can be maintained for defamatory statements made in the course of a judicial proceeding before a court of competent jurisdiction. Such is the general rule in England, but the courts in the United States have generally held that the English rule has been, and ought to be, qualified, so that statements, verbal or written, which are made in the course of judicial proceedings, in order to be privileged, must at least be pertinent and material to the case. All that was necessary to allege in the petition to secure an order to have the testimony of Mr. Julien perpetuated was the fact that Jonathan J. McKissick and others named in the petition were asserting some claim to the property without right, or in fraud of the rights of the petitioner herein, or of some irregularity and fraud in distributing the property of Jacob [217] McKissick, deceased. The testimony which it is claimed would be given by Julien had reference solely to the fairness and regularity of the proceedings in the settlement of the estate of Jacob McKissick, deceased. It had no relation whatever to any fraudulent representation made by King or any other outside party. The charge that the parties were asserting a claim to the estate “through^ the false, fraudulent, and malicious representations of one F. D. King” was wholly irrelevant and immaterial to the proceedings; and, if suits were brought upon the alleged claims, the issue would not be as to any misrepresentations made to them' by others, but whether they had any legal grounds to show that fraud had been committed in the settlement of the estate. The reference to F. D. King, as made in the petition, cannot be considered as having any such material or sufficient relevancy to the issues in the petition as to make it a privileged communication. In Moore v. M. N. Bank, 123 N. Y. 420, 427, 25 N. E. 1048, 11 L. R. A. 753, the bank had brought suit against its cashier upon his bond, and in that suit alleged that the funds of the bank had been misappropriated “b} collusion with the teller.” The teller was not a party to the. bond or to the suit, and there was no issue which called for an investigation of the teller’s conduct. The court held that the reference to the teller was not a privileged communication, but was prima facie libelous. In Mutual Life Insurance Co. v. Thomas, 83 Fed. 803, 28 C. C. A. 96, it appeared that the insurance company, in an answer to an action brought against it by Mrs. Martin to recover upon a policy of insurance issued by the company upon the life of her husband, denied the death of the insured, and, as an affirmative defense, alleged that Mrs. Martin 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, who brought the action to recover damages, was one of the attorneys for the plaintiff in the suit of Mrs. Martin against the insurance company; and the court, after stating the general rule, and citing authorities in its support, said that: “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.” The complaint in the other particulars specified in the demurrer might readily be made more specific and certain, but I am not prepared to say that it does not state facts sufficient to constitute a cause of action. It is true that the complaint does not directly [218] charge that the libel was published of or concerning the plaintiff in his capacity as an attorney at law, but it is certainly susceptible of that interpretation, and such is evidently its true intent and meaning. It was proper, but perhaps unnecessary, to insert in the complaint any reference to the publication made in the Nevada State Journal on May 2, 1903. That publication, if proof be made of the attorney’s authority in the premises, would be admissible as evidence to show malice on the part of the defendant in the publication made April 30, 1903, or in aggravation of damages; it being, in substance, a mere recital of the charges made in the petition. Townshend on Slander & Eibel (2d Ed.) §§ 392, 394.- At section 394 the author says: “A plaintiff may, to prove malice, give evidence of a publication by the defendant made subsequently to the publication declared upon, when the subsequent publication is of a like import with that declared upon or relating thereto, or is not actionable of itself, or explains any ambiguity in the matter declared upon.” The rule would be different if it were a libel based on different grounds, for which special and additional damages were claimed. • The demurrer is overruled.