Etchison v. Pergerson , 88 Ga. 620 ( 1892 )

Lumpkin, Justice.

1. Plaintiff below brought suit against her own brother for slanderous words imputing to her a disgraceful crime. The defence was that the words spoken were privileged communications, and toere true. If defendant spoke the truth of his sister in this case, it was not slander, and therefore it was not actionable to speak it. A plea of privilege, with proper allegations, is available and complete without averring the truth of the words spoken. The gravamen of a plea undertaking to combine both of these defences necessarily is that the words were true, and accordingly, such a plea should be treated simply as one of justification. The greater includes the less, and hence where the defendant in a slander case says by his plea, “I spoke the words complained of; the occasion was one of privilege authorizing me to do so [setting it forth], and I told the truth,” nothing is really material but the last allegation, and defendant must make it good by competent proof. He is not relieved of this responsibility by any averment that it was a privileged occasion. All other allegations are merged into and absorbed by the main, controlling defence that the words are not actionable because they were the truth, and consequently were justified.

2. Our statute declares that bona fide., statements, made in the performance of a private duty, either legal or moral, are privileged communications. Code, §2980. The law recognizes the necessity and propriety of an investigation by a church of alleged misconduct on the part of its members ; and when one member is a witness; before a proper tribunal of the church upon the trial of another, it is his duty to state everything within his knowledge relevant to the matters under investigation. In the bona fide discharge of this duty he will be protected. "While the privilege of the occasion would not authoi'ize the witness unnecessarily to state facts detrimental to the character or conduct of persons not connected with the church, he may and should state all facts which throw light upon the conduct of the member on trial. The present case affords an apt illustration of the propriety of this ruling. The charge was adultery, and the witness was stating facts tending to show that his brother in the church had committed this offence. This necessarily involved like guilt on the part of some woman, and mentioning her name was indispensable to a full and fair investigation. Besides, it was essential that this be done in order to enable the accused to make his defence. No man or woman can commit adultery alone, and a charge of this sort against one cannot he proved or answered without disclosing the name of the alleged confederate. The testimony of a witness in a church trial against the person accused being privileged, the protection of the occasion extends to the statement of all facts necessary to develop the whole truth. This rule is applicable not only in adultery cases, but in all others when for like reasons its enforcement would be pi’oper. The court below charged, in effect, that bona fide statements made by defendant as a witness before tbe church, committee concerning the alleged misconduct of the member on trial were privileged communications so far only as they related to the accused, and that this occasion would not protect the witness in making statements imputing the crime of adultery to the plaintiff, she not being a member of the church, unless the plea of justification was sustained. A new trial was granted because, in the opinion of the court, the jury found contrary to this charge. We do not, as has been perceived, concur with our distinguished brother of the circuit bench in the correctness of the latter part of this charge, nor do we think a new trial should have been granted for the reason stated, though we are satisfied it should have been granted for other reasons appearing in this opinion.

3. We have shown that the real defence to plaintiff’s action made by defendant’s pleas was justification. As will be seen in the next division of this opinion, the evidence would not have supported a plea of qualified privilege, if one had been made, disconnected with the defence of justification. The charge quoted in the third head-note, therefore, gave the defendant the benefit of the defence that the words were privileged, when it was neither pleaded as it should have been, nor sustained by evidence. Consequently this charge was erroneous.

4. The truth or falsity of the words spoken by defendant concerning his sister was within his personal knowledge. What he said was either true or knowingly false. If true, the defence of justification was established, and that of privilege was immaterial either as to averment or proof. If knowingly false, the words could not have been spoken in good faith, and therefore, in neither event was the attempted defence that the words were privileged sustained. The defendant told the truth about his sister, or he deliberately slandered her. If his statements were true, his defence is complete. If not, hd is liable, for tbe reason that under tbe facts of this record there could have been no good faith in his conduct unless the words were true, and the law does not permit one person to wilfully slander another on any occasion or under any circumstances.

5. On the trial the parties, their counsel and the court, all treated the pleas above referred to as pleas of privileged communications only. The jury so regarded them and so denominated them in their verdict for defendant based upon them. They were really pleas of justification, but the verdict should' be construed in the light of the facts just stated. Thus construed, it does not find, that the. alleged slanderous words were true. Its effect was rather that they were not true, but spoken in good faith on a privileged occasion. For the reasons stated in the head-notes and in this opinion, this case should be tried again. The trial judge, therefore, did not err in granting a new trial, though he did so for a reason other than those which bring us to the same conclusion. Judgment affirmed.