The trial court took the attitude that the testimony of a witness in a naturalization proceeding was a privileged communication and as such, having such status, the witnesses could not be attacked for the truth or falsity of their statements in any proceeding for slander. We respectfully submit that this conception was a heresy in the mind of the honorable court, and that the court thereby arrived at an erroneous conclusion. Slander is the defaming of a person in his or her reputation *Page 308 by speaking words that affect his or her life, office, profession or trade, or means of getting a livelihood, or which tend to his or her special damage, and words imputing want of chastity or the commission of adultery are slanderous and actionable. Newell on Slander (4th ed.) 28.
A privileged communication is a communication which under ordinary circumstances would be defamatory, but given in the course of a proceeding which exonerates the slander, however defamatory, so that slander will not lie, though the statement be false, unless actual malice be proved in addition. We respectfully contend that actual malice by the defendants and respondents was alleged in each and every attempt appellant made to have her complaint prevail before the court. That the complaint shows a cause which should have been heard by a jury and the malice proved by the plaintiff, under the full instructions of the court as to the privileged character, and not to be estimated on the pleadings.
The communication must needs be shown to have been responsive and not volunteered by the witness, maliciously and willfully, and interjected by him for ill purpose, and any testimony so given loses its status as a privileged communication, and the witness becomes liable in action for slander. Newell on Slander, sec. 375; Shadden v. McElwee, 86 Tenn. 146.
We think privileged communications and the legal position of a witness is a defense. Newell on Slander, sec. 570.
Privileged communications are not extended to ex parte proceedings. Newell on Slander, 454.
The attention of the court is called to the fact that this was a proceeding on behalf of Tom Markovich for naturalization, and this plaintiff was not a party thereto; that this appears from the pleading; that the defendants sought an opportunity of making a communication in the presence of the very persons most likely to act upon it to the prejudice of the plaintiff; that no confidential relation is shown between the witnesses and the examiner in naturalization, and if such there were, *Page 309 it should be pleaded and not assumed from any pleading of the plaintiff.
Our Nevada code has provided that in an action for slander it shall be sufficient to state generally that the same was spoken or published concerning the plaintiff, and that the defendants shall show mitigating circumstances in his proofs. Rev. Laws of Nevada, sections 5073-4. Respondents submit that appellant has misapprehended the attitude of the trial court. No such broad and unqualified rule as stated by counsel was stated or applied by the trial court. The rule the trial court did state and apply was set forth in the opinion. It was, first, that the occasion was privileged, because it was an occasion of testimony by a witness in a judicial proceeding, to wit, a naturalization proceeding. The communication was prima-facie privileged. Second, the communication was privileged because it was testimony given on a privileged occasion, which was pertinent to the issue and given bona fide. Being thus privileged the words were not actionable even if false and animated by express malice or ill will.
Had the exact words of the testimony been set up in the complaint the court could have more accurately determined the question of pertinency and relevancy and good faith. They might have furnished some facts to fortify the conclusion of "malice." But even in their absence we submit a proper decision was arrived at.
"As a general rule libelous or slanderous matter published in due course of a judicial proceeding is absolutely privileged, and will not support an action for defamation although made maliciously and with knowledge of its falsity." 25 Cyc. 376; Hollis v. Meux, 69 Cal. 625, 11 P. 248; 58 Am. Dec. 757. See, also, 30 C.J. 1237, sec. 203; 36 C.J. 1218, sec. 167; Gosewisch v. Doran, 161 Cal. 511, 119 P. 656; Ann. Cas. 1913d 442; 36 C.J. 1239, sec. 204; 36 C.J. 1250, sec. 223.
As to limitation of this rule, to matter relevant and *Page 310 pertinent to the proceeding, see 25 Cyc. 378, n. 59; notes to Cooper v. Phipps (Ore.), 22 L.R.A. 836, 33 P. 985; Newell on Slander and Libel, sec. 370 (4th ed.); 36 C.J. 1251, sec. 225; Miller v. Gust, 71 Wn. 139, 127 P. 845; Abbott v. National Bank of Commerce, 56 P. 376, 175 U.S. 409 (cited by trial court); Myers v. Hodges, 53 Fla. 197, 44 S. 357; Keeley v. Great Northern R. Co., 145 N.W. 664; 36 C.J. 1251, sec. 226; Simon v. London Guar. Co., 16 A.L.R. 743 and notes, 104 Nebr. 524, 177 N.W. 824; Kemper v. Fort, 219 P. 85, 13 L.R.A. (N.S.) 820, 67 A. 991.
"But if a defamatory charge against a third person is inseparably connected with a privileged communication concerning another, it will be protected by the privilege." 18 A. E. Encl. L. (2d ed.), 1025; 36 C.J. 1242, sec. 207; Johnson v. Brown,13 W. Va. 71, at pp. 136, 137, 138; Etchison v. Pergerson,88 Ga. 620, 15 S.E. 680; 17 R.C.L. 336, sec. 83, p. 339, sec. 87; Jones v. Brownlee, 61 S.W. 795, 53 L.R.A. 445; Crockett v. McLanahan,109 Tenn. 517, 72 S.W. 950, 61 L.R.A. 914.
There seems no dispute that this was a judicial proceeding. However, there is authority for the statement that naturalization proceedings are judicial proceedings. 23 Cyc. 1615, n. 28; Green v. Salas, 31 Fed. 106, 107; 23 Cyc. 1622, n. 79; In Re Tinn, 84 P. 152; U.S. v. Norsch, 42 Fed. 417.
Privilege need not be set up by answer when the complaint shows privilege not abused. It may be raised by demurrer. Gosewisch v. Doran, 119 P. 656, 658; Miller v. Gust, 127 P. 845, syllabus 3 and opinion; Johnson v. Brown, 13 W. Va. 71, syllabus 5; Crockett v. McLanahan, 72 S.W. 950, at 952; Hartung v. Shaw,130 Mich. 177, 89 N.W. 701.
What a demurrer admits, see Goldstein v. Healy, 201 P. 462, at 463; Edwards v. City of Reno, 45 Nev. 135, 198 P. 1090; In Re Parrott's Estate, 45 Nev. 318, 203 P. 258.
As to setting out specific words alleged to be slanderous, see Rapp v. Parker, 193 S.W. 535, syllabus 1; 9 Ann. Cas. 495. *Page 311
As to alleged slander on a third party, see Etchison v. Pergerson, 15 S.E. 680; Cooley v. Galyon, 109 Tenn. 1.
Counsel relies almost entirely for authority on Newell on Slander and Libel (4th ed.) That book has been only recently available to us, and we are almost totally unable to identify the references and to understand their bearing on this case. The pleadings in this case contain no allegation of facts to the effect that the testimony was not responsive or that it was volunteered or interjected or to show it was malicious. The court will not presume that which plaintiff was unable to aver in her complaint. Practically all the matter in Newell's (4th ed.) relevant to this case is in sections 340 to 389, pp. 377 to 415. The cases cited under sec. 370 are directly pertinent.
For a case on all fours with instant case, see Liles v. Gaster, 42 Ohio State, 631, followed in 19 C.C. (N.S.) (Ohio), where demurrers were sustained. See, also, Vogel v. Gruaz,110 U.S. 211, 28 L.Ed. 158. For full notes on testimony of a witness privileged, see 12 A.L.R. 1247.
Appellant states a misleading summary of sec. 5073, Rev. Laws. This section is identical with sec. 460 California Code of Civil Procedure, the decisions construing which are noted in 16 Cal. Juris. 83.
OPINION This is an appeal from a judgment of dismissal of the plaintiff's action, entered upon an order sustaining the defendant's demurrer to the second amended complaint filed in the cause. The complaint reads as follows:
"That during the month of October 1925 there was heard in this District Court of the State of Nevada for the Eighth Judicial District in and for Lyon County, the application of one Tom Markovitch for citizenship in the United States of America. That this plaintiff was not a party to the said application but that the former husband of the plaintiff was a partner of the said *Page 312 Tom Markovich and the husband of the plaintiff is now deceased and since the decease of her said husband has been a partner and co-owner with the said Tom Markovich in a ranch business in Smith Valley, Lyon County, State of Nevada.
"That during the month of October 1925 in the course of the said proceeding and at other times during the said month of October in Lyon County, Nevada, and at Yerington, Nevada, the defendants E.W. Mollart and Eleanor Mollart falsely and maliciously and with the intent to injure the plaintiff and to do her harm, spoke in the hearing of the court, the judge thereof and the officers of the said court, the attending clerk, the Sheriff of Lyon County, the witnesses and the spectators, attending the court, and the U.S. Examiner in Naturalization, and sundry other persons: false and slanderous words concerning the plaintiff, that the plaintiff was guilty of adultery with the said Tom Markovich and that the said Tom Markovich was the father of the children of the plaintiff, born to her while living in lawful wedlock and still married to her husband, Nick Nickovich, now deceased; that the plaintiff had been sold by her said former husband, now deceased, to Tom Markovich for immoral purposes; that the plaintiff was a willing white slave, that the children of the plaintiff and of her said former husband, were the children of Tom Markovich and not of her said husband, and that plaintiff was guilty of adultery and lewd cohabitation with the said Tom Markovich.
That all of said statements of the defendants were untrue and false and the defendants knew that the said statements made by them were untrue and false and that the said statements were malicious and intentionally and knowingly malicious. That the said statements were made to harm and discredit the plaintiff and were the fruit of the sheer malice of the defendants."
The defendant demurred to the pleading upon several grounds: (1) That there is a defect or misjoinder of parties; (2) that several causes of action have been *Page 313 improperly united; (3) that the complaint is ambiguous, unintelligible, and uncertain; (4) that the complaint does not state facts sufficient to constitute a cause of action, in that it affirmatively appears therefrom that the purported statements attributed to the defendants were made during a judicial hearing in the court below in the matter of the application of Tom Markovich to be admitted as a citizen of the United States, and that all the statements made in the course of that judicial proceeding were and are privileged.
1. The basic question for determination is whether the defamatory statements set forth in the pleading are privileged. Counsel for appellant seems to contend that a naturalization proceeding is ex parte, and that the rule of privilege does not extend to an ex parte proceeding. It is now settled that naturalization proceedings before courts having the necessary jurisdiction are judicial, not administrative, in character, and that in "passing upon the application the court exercises judicial judgment." In Re Stasinopulos (D.C.) 21 F.2d 71; Tutun v. United States, 270 U.S. 568, 46 S.Ct. 425, 70 L.Ed. 738.
2. It must be conceded that, where a witness testifies in the regular course of legal proceedings and under the directions of the court, he is not liable for the answers he may make to questions put to him by the court or counsel, provided the answers of the witness are relevant and pertinent to the subject of inquiry, whether or not they are false or malicious. See 36 C.J. 1250-1257, and cases cited in notes.
3, 4. The pleading in this instance is liable to criticism, in that it states inferences and conclusions rather than direct allegations. It is held that, where nothing is shown in the complaint except that an alleged slanderous statement was made by the defendant as a witness in a judicial proceeding, the same must be regarded as absolutely privileged. Hutchinson v. Lewis,75 Ind. 55. So in the absence of any averment in the complaint to the contrary, we must presume that the answers were relevant and pertinent to the subject of inquiry. Liles v. Gaster, 42 Ohio St. 631. *Page 314
It is clearly inferable from the allegations of the complaint under review that the subject of inquiry was the qualifications of Tom Markovich to become a citizen of the United States, and it is also inferable from the allegations of the complaint that his application was opposed by the government upon the ground that the appellant had not behaved as a man of good moral character as to entitle him to citizenship.
5. An applicant for citizenship must allege in his petition the fulfillment of all conditions upon the existence of which his alleged right is made to depend, and must establish these allegations by competent evidence to the satisfaction of the court. Tutun v. United States, supra.
It is inferable from the allegations of the complaint that the application of Tom Markovich was opposed upon the ground that he did not possess all of the qualifications made requisite by the naturalization act of Congress of June 29, 1906 (34 U.S. Stats. at Large, 596, c. 3592, sec. 4; 8 U.S.C.A., sec. 382).
The naturalization act provides that, to authorize the naturalization of an alien it must be shown that he "has resided continuously within the United States, five years at least, and within the state or territory where such court is at the time held one year at least," before his application, and that during that time, "he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same."
6. Under the accepted standard in this country, a person committing adultery is an immoral person, and admission of such a person to citizenship is contrary to the provisions of the statute and illegal. United States v. Unger (D.C.)26 F.2d 114.
The fact that defendants, as witnesses in the matter of the application of Tom Markovich for citizenship, charged the plaintiff with being the person with whom the applicant committed adultery, does not deprive them *Page 315 of their protection under the rule of absolute privilege.
For the reasons stated, we conclude that the demurrer to the complaint was properly sustained, and the judgment of dismissal of the action is affirmed.
ON PETITION FOR REHEARING April 10, 1929.