Cole v. Wilson

Judge Simpson,

delivered the opinion of the court.

The appellant brought this action against the appellee for a libel. He alleged the defendant had maliciously wrote and published of and concerning the plaintiff in his character, and profession of attorney at law, these false and libellous words, viz:

“He has employed an attorney here that is one of ‘ them. Even if he should succeed he would never ‘ see one dime of the proceeds; he has already made ‘ use of one of his horses to pay his debts with. I ‘ have no idea that he ever bought him from Lewis.”

Thereby meaning, as alleged by the plaintiff, that he was dishonest in his profession of attorney, and that he had been guilty of a breach of trust by appropriating his clients property to his own use..

1. Under the 'Rev. Statutes,as well as the Code of Prac., either party in a civil action is authorized to call upon the other party to testify on the trialjbutin such case the party called on to testify is not deprived of the same privilege that belongs to other witnesses; he is not bound to answer any question which would subject him to a criminal or penal liability. The rule that a witness is not bound to answer any questionwhich would tend to subject him to a punishment or presentment, applies even to parties in suitsinequity, where the party is not bound in his answer to mate a disclosure which would have that tendency. (Code of Prac. sec. 143; Story’s eqPlead. sections 524,576, 592; Mitford’s Eq.Pl. 157,163.)

2. The defendant in a civil action for the publieation of a libel, when called as a witness for the plaintiff, is not bound to answer the question whether or not he had published the alledged libellous matter; and tho’ he may have answered questions tending to show that he had published the libel, he has the right to refuse further to answer questions having the like tendency. (Greenleaf’s Ev. Í vol. sec. 451.)

On the trial the-plaintiff made a witness of the defendant, and asked him if he, the plaintiff, was the person referred to by him in the letter containing the foregoing extract? The question was objected to, and the court decided that the defendant was not bound to answer it. The correctness of that decision is the first question for our consideration.

Under the Revised Statutes, as well as under the Code of Practice, either party in a civil action is authorized to call upon the other to testify upon the trial. A party, however, by being made a witness by his adversary, is not deprived of any of the privileges that belong to other witnesses. He will not be compelled to-answer a question, when the answer might criminate himself, or have a tendency to expose him to a penal liability. This rule applies even in a suit in equity, where a defendant will not be compelled to discover that which, if answered, would tend to subject him. to a penalty or punishment, or which might lead to a criminal accusation. (Story's Equity Plead, sections 524, 576, 592; Milford's Eq. Pi. 157-163.) And under the provisions of the Code of Practice, (sec. 143,) a defendant is not required to verify his answer by affidavit, where the admission of the truth of the allegations of the petition might subject him to a criminal or penal prosecution.

The publication of a libel is an indictable offense, and a witness has a right to refuse to answer any question by which he is called upon to disclose a fact which might have a tendency to subject him to a prosecution for such an offense. The defendant, therefore, was not bound to answer the question which the plaintiff propounded to him; and the decision of the court was right upon this ground, if upon no other. Although the witness had answered in part, and had disclosed facts tending to show that he was the author of the writing in question, still he had a right to decline answering any further, and claim his privilege at any stage of the inquiry. (Greenleaf on Evidence, 1 vol. sec. 451.)

3. It is competent for a def’t. in a civil action, for the publication of a writing charged to be libelous, to insist that the publication was not in the malicious sense charged, but in an innocent sense, under circumstances which warranted their publication.

4. A confidential communication seeking inf or mati on, which the party had a right to have, would not be libelous; but if it be accompanied by comments of a slanderous nature, not necessary to the attainment of the object desired, it would be libelous.

The court instructed the jury upon the trial, at the instance of the defendant, “that if they believed, ‘ from the evidence, that the letter read to them was ‘ written as a confidential communication, in good 4 faith, without malice, and for the purpose of ob- ‘ taining proper information, or imparting the same, ‘ then the law is for the defendant, and the jury must ‘ so find.” This instruction was excepted to by the plaintiff, and its correctness forms the next subject of inquiry.

The defendant in an action for a libel, may insist that the words were published, not in the malicious sense imputed by the plaintiff, but in an innocent sense, or on an occasion which warranted the publication. The question therefore is, was the publication authorized by the circumstances in this case; or in other words, did the object the defendant had in view in writing the letter make it a privileged communication?

The letter was written as a confidential communication, for the purpose of obtaining information in relation to a pending controversy, and so far as it contained a statement of such facts only as were, necessary to be stated, to enable the person to whom it was addressed to understand the matters in con-j troversy, and the facts which the writer believed to| exist, and desired to establish by proof, it could not! be regarded as libelous in its character. But if it I, were accompanied by comments of a slanderous na-! ture, not necessary to the attainment of this object,|' referring to an individual concerning whom no infor-f mation was expected or desired, and setting forth'j facts which were foreign to the avowed object with! which it was written, then, although the letter might have been written as a confidential communication, j1 in good faith, for the purpose of obtaining proper in- ¡j formation, still this part of it would have been unnecessary, and unwarranted, and therefore libelous. Consequently, the instruction of the court was misleading and erroneous in the form in which it was given. It should have discriminated between the general.purpose which the writer had in view and his purpose in making the remarks contained in the letter in reference to the plaintiff. The object and design of the letter may have been such as authorized the defendant to write it, and still its comments concerning the plaintiff may have been wholly unnecessary and authorized. As the instruction referred to the general character of the letter, the jury may have supposed that the remarks which it contained concerning the plaintiff, although not necessary to the attainment of the object the writer had in view, were nevertheless warranted by the general character of the communication. This, however, would be an erroneous supposition, and therefore the instruction was improper and misleading.

Wherefore, the judgment is reversed, and cause remanded for a new trial, and further proceedings consistent with this opinion.