(dissenting).
This suit strongly illustrates the human equation. The plaintiff is a lawyer and, as such, an officer of the court. The defendant is a sheriff, the keeper of the jail, Rev.St. § 2833, Art. 1385, Louisiana Criminal Code, and also the operator of the prison, a governmental function. Amer. Jur., Vol. 41, Sec. 3, pg. 886. We must judge the cause from the effect and see the necessary connection between the respective acts — not of the one but both— in order to determine the motive. When the Sheriff gave the order that the plaintiff be searched before entering the prison, this seems to me a matter clearly within the discretion of the keeper of the jail performing a governmental function and therefore the court must not substitute its discretion for that of the discretion of the administrative officer. After the Sheriff arrived at the jail, Mr. Gladney, the plaintiff, was searched. Gladney thereafter saw his client and accomplished the purpose of his mission. But, after leaving the jail, he went immediately to the newspaper office. This' newspaper publicized what Mr. Gladney told the publishers, who, thereafter, contacted the sheriff, and they published what the sheriff allegedly told them. Mr. deBretton is a Sheriff, not a newspaper. There could not be any imputation of malice by publication. The authorities in newspaper cases do not apply. Mr. Gladney sought the publication by visiting the newspaper and complaining —the Sheriff did not inspire the publication nor seek it, he was sought by the newspaper. At the time of the utterance, no eye had seen the words, no ear had heard them except the newspaper reporter over the phone. The • alleged defamation was not therefore public. To recover damages a litigant must be free of fault. He cannot avail himself of a condition for the enhancement or the granting of damages by a Court where he was instrumental in producing them. It does occur to the author of this dissent that this cause should be remanded to the district court to receive the evidence which was sought to be introduced but was excluded, particularly that evidence which would give an insight on the motives of not the one but of both. The majority opinion was written by the exercise of energy and commendable care but, nevertheless, I feel that we need additional facts, for then we can sound the litigants’ hearts by the plummets we apply to our own.
I respectfully dissent.