Opinion
Rehearing Denied July 11, 1929
Hearing Granted by Supreme Court Aug. 8, 1929
Appeal from Superior Court, City and County of San Francisco; Daniel C. Deasy, Judge.
Action by Charles H. Layne against Edmund Kirby. Judgment for defendant, and plaintiff appeals. Affirmed.
COUNSEL
John Ralph Wilson and Everette C. McKeage, both of San Francisco, for appellant.
George R. Andersen, of San Francisco, for respondent.
OPINION
STURTEVANT, J.
The plaintiff filed a complaint in which he alleged that the defendant had published a libel against him. The defendant appeared and filed a general demurrer. The demurrer was sustained, the plaintiff declined to amend, and from a judgment entered in favor of the defendant the plaintiff has appealed and has brought up the judgment roll.
Prior to January 31, 1928, there was maintained in San Francisco a United States engineer office. The plaintiff, Charles H. Layne, was chief clerk. The defendant, Edmund Kirby, was a subordinate clerk. Colonel T.H. Jackson, Corps of Engineers, was the superior officer. Commencing on the 21st day of December, 1927, a correspondence was commenced between the defendant and his superior officers regarding an order placing the defendant on furlough without pay. Under date of January 30, 1928, the defendant wrote and transmitted an extended letter and inclosed therewith several inclosures. The alleged libel is based on statements contained in that letter. Some of the statements were to the effect that the ruling about to be enforced would deprive this defendant of his statutory rights; that the plaintiff was derelict in the performance of his duties; that he used government property for his own personal use; that he was engaged in private enterprises when he should have been rendering official service; that plaintiff at one time ordered defendant to render a false statistical report; and that the plaintiff knowingly allowed false statistical reports to be rendered to his superior officers. Both the plaintiff and the defendant hold their appointments from the Secretary of War. U.S.Code Ann. title 10, § 187. The Secretary of War, having the power to appoint, in the absence of a statute to the contrary has the power to remove. U.S. v. Taft, 24 App.D.C. 95, 98-99. Although civil service employees, either could be removed for cause, and it is the duty of the head of the department from time to time to determine the fitness of his appointees. U.S. v. Taft, supra. Before a civil service employee may be removed for cause, he is entitled to be served with a writing stating the reasons and of the charges preferred against him, and to be allowed a reasonable time for answering the same in writing. U.S.Code Ann. title 5, § 652. It appears that the letter was addressed to the person who had the right to hear and determine all of those charges.
One of the points presented by the record is the element of privilege. The plaintiff contends that the communication, if privileged at all, was only qualifiedly privileged. So contending, he claims that the trial court could not rule on the subject until the evidence was all in. If, on the other hand, the communication was absolutely privileged, it will be unnecessary to discuss any other point. In 1860 the Supreme Court of New York wrote an exhaustive opinion on the subject before us in the case of Perkins v. Mitchell, 31 Barb. 461. On page 471 the court said: "These cases leave no room to doubt that in England and in the courts of this state, the rule has been very steadily adhered to which protects parties and witnesses for statements pertinently made by them in the assertion of their rights, or the discharge of their duties as such. I see no reason why this protection should be confined to the trial of issues in suits or indictments, or to oral examinations, so as to exclude affidavits even if voluntarily made, if otherwise regular and pertinent. The phrase employed by the judges and the text writers, in speaking of this sort of privileged communications, is ‘judicial proceedings.’ This is not confined to trials of civil actions or indictments, but includes every proceeding before a competent court or magistrate in the due course of law or the administration of justice, which is to result in any determination or action of such court or officer." When the commissioners were preparing our Codes, which were adopted in 1872, basing their action in part on what was said in that case, they framed section 47 of the Civil Code. As adopted, the section at that time, among other things, provided: "A privileged communication is one made: *** 2. In testifying as a witness in any proceeding authorized by law to a matter pertinent and material, or in reply to a question allowed by the tribunal. ***" Following the rule in the Perkins Case, it will be noted that the statute is limited to sworn statements, and, furthermore, that it is not limited to court proceedings. In 1874 the statute was amended to read as follows: Sec. 47. "A privileged publication is one made: *** 2. In any legislative or judicial proceeding, or in any other official proceeding authorized by law. ***" Since that date that language has not been changed.
A statute similarly worded was under consideration in Sanford v. Bennett, 24 N.Y. 20. At page 26 Mr. Justice Denio said: "I am persuaded that the transactions embraced in the purview of the statute are such as resemble judicial and legislative proceedings, such as the transactions of administrative boards in which the subjects dealt with are liable to be considered, deliberated upon, discussed and determined." (Italics ours.) In the case of Public Service Com’n v. Iroquois Natural Gas Co., 103 Misc. 587, 170 N.Y.S. 692, the question arose as to when the "proceeding" might be said to be pending. Commencing at the bottom of page 695, 170 N.Y.S. (103 Misc. 593), the court said: "The defendant files schedules providing for an increased rate; a complaint is made by the mayor of the city of Buffalo, and steps are taken through the Public Service Commission to investigate the reasonableness of the suggested new rate. Of course, there might well be occasions in which a ‘proceeding’ would be initiated by a written complaint as to the price of gas, etc., when no schedule of proposed new rates had been filed. However, in the situation here involved, even though the schedule of new rates was filed before any complaint was made and such filing was the cause of the complaint, and even though the effectuating time of such schedule has been postponed from time to time, a complaint has been made, and an investigation is under way, and a ‘proceeding’ is therefore on, which in this instance, as it appears to me, was initiated and caused by the filing of the schedule of proposed increased rates." In Duncan v. Atchison, T. & S.F.R. Co. (C.C.A.) 72 F. 808, the language complained of was contained in an answer which the defendant had filed with the Interstate Commerce Commission. On the trial of the alleged libel the defendant claimed the publication was privileged. The court so found. On appeal to the Ninth Circuit Court of Appeals that finding was attacked. At page 811 the court held that it was privileged, at least under Civil Code, § 47, subd. 2. Oklahoma has a statute which is almost a verbatim copy of our statute. In Tuohy v. Halsell, 35 Okl. 61, 128 P. 126, 43 L.R.A.(N.S.) 323, Ann.Cas.1916B, 1110, the Supreme Court of Oklahoma was considering the contents of an affidavit made in Oklahoma to be used before one of the committees of the United States Senate. The court quoted with approval from Sanford v. Bennett, supra, and held that the affidavit fell within the language "any other proceeding authorized by law." Continuing, the court said: "No case can be found exactly in point, but in Duncan v. Atchison, T. & S.F.R. Co., 19 C.C.A. 202, 44 U.S.App. 427, 72 F. 808, the court said: ‘Section 47 of the Civil Code of California declares that "a privileged communication is one made *** (2) in any legislative or judicial proceeding, or in any other official proceeding authorized by law." In Ball v. Rawles, 93 Cal. 222, 236, 28 P. 937, 941 (27 Am.St.Rep. 174), the Supreme Court, in construing this section, said: "The effect of this provision is to make a complaint, in a court of justice which has jurisdiction of the offense charged, an absolute privilege, for which the complainant is not liable in a civil action. Hollis v. Meux, 69 Cal. 625, 11 P. 248, 58 Am.Rep. 574." Tested by the provisions of this statute, the conclusion of law arrived at by the circuit court, "that all of the matters and things herein complained of were and are privileged," and the judgment rendered thereon, were clearly correct; for, conceding that the Interstate Commerce Commission is not a court of civil jurisdiction, it is nevertheless manifest that the pleadings herein complained of were filed in an "official proceeding authorized by law" ’. And in the syllabus: ‘Alleged libelous statements contained in an answer filed in proceedings before the Interstate Commerce Commission are absolutely privileged, under the California statute, which declares a privileged communication to be "one made *** in any legislative or judicial proceeding, or in any other official proceeding authorized by law." ’ ‘’
In the case of Burgess v. Turle & Co., 155 Minn. 479, 193 N.W. 945, the Supreme Court of Minnesota was considering a case involving the following facts: Plaintiff was the vendee and defendant was the vendor in a contract for the sale of land in North Dakota. The vendee defaulted in his payments. By the statutes of North Dakota the vendor was authorized to terminate the contract by giving the vendee a certain notice. Under the statute, if the defaulting party was outside of the state, provision was made for the publication of the notice. The vendor published the notice. The vendee filed an action charging the vendor with libel. The statute on libel in the state of Minnesota contained a clause regarding privilege which was in the same language as the California statute. The court held that the notice was given in a "proceeding authorized by law" and that, "The alleged defamatory statements were absolutely privileged, and cannot be made the foundation for an action for libel."
In Harris v. Huntington, 2 Tyler, 129, 4 Am.Dec. 728, the Supreme Court of Vermont had under consideration a charge of libel based on a petition which the defendants had addressed to the Legislature asking for the removal of the plaintiff as justice of the peace. On page 733, 4 Am.Dec. (2 Tyler 138), the court said: "An absolute and unqualified indemnity from all responsibility in the petitioner is indispensable from the right of petitioning the supreme power for the redress of grievances; for it would be an absurd mockery in a government to hold out this privilege to its subjects, and then punish them for the use of it. And it would be equally destructive of the right, for the courts of law to support actions of defamation grounded on such petitions as libelous. Petitions for redress of grievances will generally point to officers of the government, who have, or may be supposed to have abused its confidence by maladministration; and although the government should refrain from prosecuting the petitioners criminally, yet it would operate as effectual a restraint upon them to expose them to an action for damages at the suit of those of whose conduct they have complained to government."
In Larkin v. Noonan, 19 Wis. 82, the alleged libel was addressed to the governor, asking the removal of the plaintiff as sheriff. It was shown that it was the statutory duty of the governor to receive such a charge, hear the facts, and determine the truth or falsity and act thereon. On page 88 the court said: "Upon this question we cannot better express our views than by adopting the just and forcible language of Senator Clinton, used by him in giving his opinion in Thorn v. Blanchard, 5 Johns. [N.Y. 508] 507-530: ‘There is a certain class of cases where no prosecution for a libel will lie, when the matter contained in it is false and scandalous; as in a petition to a committee of parliament; in articles of the peace, exhibited to justices of the peace; in a presentment of a grand jury; in a proceeding in a regular course of justice; in assigning, on the books of a Quakers’ meeting, reasons for expelling a member; in an exposition of the abuses of a public institution, as in the case of the deputy governor of Greenwich hospital, addressed to the competent authority to administer redress. The policy of the law here steps in and controls the individual rights of redress. The freedom of inquiry, the right of exposing malversation in public men and public institutions, to the proper authority, the importance of punishing offenses, and the danger of silencing inquiry and of affording impunity to guilt, have all combined to shut the door against prosecutions for libels, in cases of that, or of analogous nature.’ " It thus appears that there is authority to the effect that the facts of the instant case might justify a ruling that the defendant’s correspondence was a step in a "judicial proceeding," but be that as it may, it clearly appears that it was a step in "an official proceeding authorized by law." The trial court did not err in sustaining the demurrer.
The judgment is affirmed.
We concur: KOFORD, P.J.; NOURSE, J.