Opinion
January Term, 1898.
Dennis McMahon, for the appellant.
Hamilton Wallis, for the respondent.
The burden was upon the plaintiff of showing not only that the defendant was the author of the letter claimed to be libelous, but also that he published it or caused it to be published. The writing of the letter was admitted by the defendant, and upon the subject of publication there was no evidence from which the jury would have been justified in inferring that anybody had ever seen the letter except the plaintiff and the defendant. It is true that a press copy of the letter was made and that the defendant had a typewriter, but there is no evidence to show that a typewriter operator had anything to do with the letter, although it was typewritten. The only evidence, therefore, as bearing upon the question of publication was that in the suit of Kidd v. Woodman before a referee, Kidd's counsel, after demanding the production of the latter, which was refused, produced a copy and read it in the presence of the referee and the persons attending at the trial. This the plaintiff insists was a publication, the argument being that, though the rule must be recognized that matter written or spoken which is relevant and material to an issue pending before a court or referee is privileged, this letter, being neither, was not a privileged communication. The answer to this, however, is that it was claimed by Kidd to be material and relevant and competent, and was so held by the referee; and such ruling having been made in a case between the same parties as are here on the record, the ruling is a binding adjudication. It will be seen, therefore, that we are not at liberty to adopt the argument of the appellant that the letter, being improperly admitted, was not privileged.
The plaintiff excepted to the court's refusal to allow the withdrawal of a juror or to amend the pleadings, both motions being directed to affording the plaintiff an opportunity of removing all question as to the right to rely upon what happened before the referee in the prior action as evidence of publication. It will be seen that we have discussed the question as though the court had allowed the amendment, because there is sufficient evidence to present the point which the plaintiff desired to make, and having reached the conclusion that with such amendment, and giving the plaintiff the benefit of what occurred before the referee, it would not have aided him, he was, therefore, not injured by the refusal to grant his motion to withdraw a juror or amend the pleadings.
We think, therefore, that the disposition made by the court below was right, and the judgment should be affirmed, with costs.
VAN BRUNT, P.J., BARRETT, RUMSEY and PATTERSON, JJ., concurred.
Judgment affirmed, with costs.