Opinion
No. 22633
Decided June 17, 1931.
Malicious prosecution — Testimony before federal grand jury privileged and inadmissible in civil action.
ERROR to the Court of Appeals of Jackson county.
This is a proceeding in error to reverse the Court of Appeals of Jackson county. The original action was for malicious prosecution, brought by Kate Chesnut McCurdy against Samuel Stephenson, Rosalind Longley Stephenson and Mary Jackson Burgess, based upon alleged false testimony given by said defendants before the United States grand jury at Dayton, Ohio.
Defendants demurred to the petition for two reasons: That there was a misjoinder of defendants, and that the petition did not state a cause of action. The common pleas court sustained the demurrer on both grounds. Upon error to the Court of Appeals, the judgment was reversed, the court holding against the defendants on both grounds and remanding the case to the court of common pleas for further proceedings according to law. Error is now prosecuted to this court to reverse such judgment.
Mr. E.E. Eubanks and Mr. Joseph McGhee, for plaintiffs in error.
Miss Mary G. McMahon and Miss Goldie S. Kanter, for defendant in error.
The paramount question in this case is whether or not testimony given before a grand jury is privileged and inadmissible in evidence to sustain an action for malicious prosecution.
Defendant in error relies upon the case of Kintz v. Harriger, 99 Ohio St. 240, 124 N.E. 168, 12 A. L. R., 1240. That case related to testimony given before a grand jury in the state court. In the present case, the testimony relied upon was given before a federal grand jury. In the case of Vogel, Exr., v. Gruaz, 110 U.S. 311, 4 S.Ct., 12, 28 L.Ed., 158, testimony of this character is held to be privileged; and in the case of the Taplin-Rice-Clerkin Co. v. Hower, post, 123, 177 N.E. 203, this day decided in this court, the case of Kintz v. Harriger is overruled and the rule of Vogel, Exr., v. Gruaz, supra, adopted.
It follows that the judgment of the Court of Appeals must be reversed and the judgment of the court of common pleas affirmed.
Judgment reversed.
MARSHALL, C.J., JONES, DAY, ALLEN, KINKADE and ROBINSON, JJ., Concur.