Hartung v. Shaw

89 N.W. 701, 130 Mich. 177, 1902 Mich. LEXIS 756

• Court: Michigan Supreme Court
• Decided: March 26, 1902
• Docket: Docket No. 185
• Status: Published

Opinion

Grant, J.

(after stating the facts). 1. The ruling of the judge appears to have been based upon the theory that the declaration disclosed a case prima facie privileged, and that it was fatally defective in not alleging that the publication was not within the privilege, or that the defendant exceeded her privilege. Counsel for the plaintiff insist that the averment that the statements were false and malicious negatives every possibility of pertinency, materiality, and relevancy. We do not so understand the •rule. If statements made in the course of judicial proceedings, in pleadings or in argument, are relevant, material, or pertinent to the issue, their falsity or the malice of their author is not open to inquiry. They are then absolutely privileged. Hoar v. Wood, 3 Metc. (Mass.) 193, 197; Maulsby v. Reifsnider, 69 Md. 143 (14 Atl. 505); Moore v. Bank, 123 N. Y. 420 (25 N. E. 1048, 11 L. R. A. 753); 2 Stevens, Mich. Prac. § 275. It is only necessary that the language be pertinent, or, as some authors say, relevant. Chief Justice Shaw in Hoar v. Wood said:

“In determining what is pertinent, much latitude must be allowed to the judgment and discretion of those who are intrusted with the conduct of a cause in court, and a much larger allowance made for the ardent and excited feelings with which a party, or counsel, who naturally and almost necessarily identifies himself with his client, may become animated, by constantly regarding one side only of an interesting and animated controversy, in which the dearest rights of such party may become involved. ”

Where a party shows in his declaration a publication-presumptively privileged, it is his duty, in order’ to recover, to prove that the words spoken were not pertinent or relevant, and that they were not spoken bona fide. Mower v. Watson, 11 Vt. 536 (34 Am. Dec. 704); Henry v. Moberly, 6 Ind. App. 490 (33 N. E. 981); McNabb v. Neal, 88 Ill. App. 571; Johnson v. Brown, 13 W. Va. 71. If it be necessary to prove this, it is equally necessary to-allege it. All the information the declaration gives is that the words complained of were uttered in an answer to a bill in chancery filed to obtain a partition of lands.. For all that appears there may have been averments or allegations in the bill in chancery to which the averments of the answer were responsive.

Did the failure to demur waive the objection? The defective statement of a cause of action is waived by a failure to demur. But in such cases the declaration must state a case. Material averments, essential to maintain a. cause of action, are not waived. Parker v. Armstrong, 55 Mich. 177 (20 N. W. 892); Schindler v. Railway Co., 77 Mich. 136 (43 N. W. 911).

2. It is urged by the defendants that pleadings are absolutely privileged, and that no action of libel based thereon will lie. In England they are held absolutely privileged. In this country the authorities are divided. The question has not been directly decided by this court. This court in Hart v. Baxter, 47 Mich. 198 (10 N. W. 198), recognized that there was a limit to the privilege, and approved the rule as stated in Hoar v. Wood, 3 Metc. (Mass.) 193. The statement was purely dictum, and was made after the court had decided the question that the statements complained of there were relevant, and therefore privileged. The same remark is true of many of the ■cases cited in 18 Am. & Eng. Enc. Law (2d Ed.), 1024. The question is an important one. Inasmuch as it is not necessary to now decide the question, we refrain from ■expressing any opinion.

Judgment is affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.