Pagoto v. Hancock , 41 Mich. App. 622 ( 1972 )

41 Mich. App. 622 (1972) 200 N.W.2d 777

PAGOTO
v.
HANCOCK.

Docket No. 13223.

Michigan Court of Appeals.

Decided June 27, 1972.

Gottlieb, Eason & Goren, for plaintiff.

Bush, Luce, Henderson, Black & Bankson, for defendant.

Before: FITZGERALD, P.J., and QUINN and DANHOF, JJ.

DANHOF, J.

The plaintiff brought this action seeking to recover for damages caused by an allegedly slanderous remark. From the plaintiff's complaint, it appears that the allegedly defamatory remark was made by a witness during the course of a judicial proceeding. The defendant moved for summary judgment under GCR 1963, 117.2(1) on the ground of failure to state a claim upon which relief can be granted. The trial court granted the motion and the plaintiff has appealed. We affirm.

Generally speaking statements made by witnesses are absolutely privileged. Timmis v Bennett, 352 Mich. 355 (1958), 3 Restatement of Torts, § 588, p 244. However, as the plaintiff points out, the privilege applies only when the allegedly defamatory statements are in some manner relevant or pertinent to the matter being tried.

Once it has been established that the statements were made during the course of a judicial proceeding there arises a presumption that they were relevant to the matter being tried. Sanders v Leeson Air Conditioning Corp, 362 Mich. 692 (1961). A case that is quite similar to the case at bar is Hartung v Shaw, 130 Mich. 177 (1902). Hartung was a libel action where the allegedly defamatory material was contained in an answer to a bill in chancery. At trial the defendants objected to the introduction of testimony and the trial court ruled in their favor and directed a verdict. In discussing the issue the Court stated at p 180:

"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. [Citations omitted.] 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."

Because of the development of greatly liberalized rules of procedure in pleading one may question whether Hartung is any longer good law on its facts. However, the portion we have quoted is still good law on the facts of the case at bar. Even under our liberalized rules of procedure and pleading the plaintiff's complaint is fatally defective.

On its face the complaint shows that the statements were made by a witness in a judicial proceeding. The plaintiff alleged no facts that would take the case out of the privilege. The defendant's motion for summary judgment squarely framed the issue and called the plaintiff's attention to the defect in his pleading. At no time did the plaintiff attempt to amend his pleadings. We see no reason to put the defendant to the trouble and expense of a trial when the plaintiff is unable to allege facts that would give him a claim upon which relief could be granted.

Affirmed, costs to the defendant.

All concurred.