
    Liles v. Gaster.
    In an action of slander, the petition charges defendant with having spoken certain false, malicious and defamatory words concerning the plaintiff, while giving his testimony before a court having jurisdiction of the subject matter then on trial, in answer to interrogatories put to him as such witness. For aught that is stated in the petilion, these answers were relative to the issue then on trial, and were honestly believed to be true, though in fact they were untrue. Upon demurrer to the petition,
    
      Held,: 1. That the court will presume,' in the absence of an averment to the contrary, that the answers of the witness were within the scope of inquiry pertinent to the issue then on trial, and that they were believed by the witness to be true.
    3. That upon the statements of the petition and the presumptions arising therefrom, the witness was absolutely privileged, and he is not liable to a civil action for so testifying.
    Eeeoe to the District Court of Wyandot county.
    This is a proceeding to reverse the district court for error in reversing the common pleas where a demurrer was sustained to the following petition:
    “ The plaintiff says, first: That before the committing by the defendant of the grievances hereinafter mentioned and complained of, to wit, on or about the 22d day of September, A. D. 1871, at the residence of the plaintiff and his brother, Robert Gaster, in said county, one Barnabas Wagner, the husband of plaintiff’s sister and a man of great age, had become sick, and died,' of some disease or cause to plaintiff unknown; and that subsequent to the death of said Barnabas Wagner, it was currently reported .and generally believed that said Barnabas Wagner bad died of poison, administered by his attending physician, Dr. William Froemi'g, who was afterwards arrested ■ and indicted for said offense, upon his own confession thereof, but became insane while under indictment for the murder of said Barnabas' Wagner, by means of poison as aforesaid, and was never put upon trial under said indictment by reason of the fact of his said insanity.
    “ 2. That prior to, and at the time of the death of said Barnabas Wagner, one Frederick Bealer, a boy, then about thirteen years of age, was making his home with plaintiff and his said brother, at their said residence, and was engaged during a part of the time in such light work about the farm as he was able to perform.
    “ 3. The said Frederick Bealer became of full age about the 15th day of November, A. D. 1879, and afterwards, on the 30th day of December, 1879, commenced an action against plaintiff and his said brother, Robert, before M. II. Water mire, a justice of the peace of said county, and said action was tried before said justice and a jury on the 7th day of February, 1880.
    . “ 4. The defendant, Plympton J. Liles, well knowing all the premises, and having been called as a witness upon said trial, for the said Frederick Bealer, and having testified as such witness, among other things, that the said Frederick Bealer had put in all the wheat sown upon plaintiff's farm during the fall of the said year, 1871, and having been interrogated as to where the Gaster boys (meaning the plaintiff and his brother Robert), were, and what they were doing, at the time the said Bealer was engaged in putting in said wheat, in answer to said interrogatory and in the presence and hearing of said justice and jury, and of a large audience of witnesses and spectators, maliciously spoke and published of and concerning the plaintiff, the false and malicious words following, that is to say ‘Jacob Gaster5 (meaning the plaintiff), ‘had run away.5
    “ And upon being further asked why the plaintiff had run away, the said defendant upon the trial aforesaid, at the time and place aforesaid, and in the presence and hearing of the justice, jury, spectators and witnesses, aforesaid, in answer to said question, maliciously spoke the false, scandalous, malicious and defamatory words following, that is to say, ‘ Eor poisoning old man Wagner,’ meaning the said Barnabas Wagner, and meaning and intending thereby to charge the plaintiff with the crime of having caused the death of said Barnabas Wagner, by the administration of poison for that purpose, unlawfully and feloniously.
    “ And upon being further asked how he knew that plaintiff had run away, the defendant then and there falsely and maliciously replied : ‘ Everybody says so,’ — meaning and intending thereby, to cause it to be believed by the said justice, jury and witnesses, that it was commonly reported and believed that plaintiff had procured and caused the death of the said Barnabas Wagner, by means of poison unlawfully and criminally administered.
    
      “ And upon being further asked what old Wagner defendant meant in his reply to said question, defendant, in answer to said question, and in the presence and hearing of the parties and persons aforesaid, replied : ‘ Old Barney Wagner’ (meaning the said Barnabas Wagner), who was poisoned and died. ‘ Everybody knows that, and that Bob G-aster’ (meaning plaintiff’s said brother Robert), was in jail.’
    “ And plaintiff avers and charges that all of the above mentioned false, scandalous, malicious and defamatory words were spoken as aforesaid of and concerning the plaintiff, and of and concerning the death of said Barnabas Wagner, and of and concerning the common report, and general belief that the death of said Barnabas Wagner had been caused by poison unlawfully and criminally administered, and that all of said words were spoken as aforesaid by the defendant, falsely and maliciously, and for the purpose of injuring the plaintiff and of causing it to be reported and believed that plaintiff was criminally connected with the death of said Barnabas Wagner, and that by reason thereof plaintiff had been compelled to flee from justice. And plaintiff says that by reason of the premises he has been greatly injured in his good name, fame and reputation, and has suffered damage in the sum of five thous- and dollars, for which he prays judgment against said defendant.”
    
      
      John D. Sears, for plaintiff in error.
    
      I). D. Hare, for defendant in error.
   Johnson, J.

Prom the petition, it appears that the words charged, if disconnected with the circumstances under which they were uttered, are actionable per se. These circumstances disclose the fact, that they were uttered while the defendant below was giving his testimony in a trial before a justice of the peace. It appears, there was an action then on trial, wherein one Bealer was plaintiff, and defendant in error and his brother were defendants. It does not appear what the nature of that action was, nor in whose behalf the plaintiff in error testified. We infer from what follows that Bealer’s suit related to services rendered by him to the Gaster brothers. The plaintiff in error was sworn as a witness, and during his examination testified ,that Bealer had in the fall of 1871 put in all the wheat on the farm of the Gaster brothers, the defendants in that action. He was then asked, where the Gaster boys were at the time. He answered, “ Jacob Gaster” (meaning the plaintiff below in this action), “ had run away.” He was then asked why he had runaway. He answered, “Por poisoning old man Wagner.” He was further asked how he knew. He - said, “Everybody says so.”

These statements were made in the presence of the court, jury and spectators, while defendant in error was giving evidence as a sworn witness. Petition charges that this evidence was false and malicious and was given for the purpose of injuring the plaintiff below, and of causing it to believed that he was guilty of poisoning old man Wagner. It does not appear what was the ■ nature of the cause of action then on trial, nor whether the evidence so given was or was not relevant to the issue. Under the circumstances we must assume that it was pertinent and material. It may fairly be presumed from the tenor of the examination that it was called out upon cross-examination by the defense in that action.

■ The court of common pleas held, that the witness was protected from an action for slander while giving such testimony in that case ; in other words his testimony was what was known as a privileged communication. The district court held, that it was not. The question therefore is, whether a witness, who gives testimony pertinent to the issue in a judicial proceeding, is liable to an action of slander because such testimony is false and malicious. It is not averred that the witness hnew, when he made these statements, that they were false. For aught that appears, he may have believed them to be true, though they were, in fact, untrue. He could not be convicted of perjury unless it appeared that his testimony was not only false but that it was willfully and knowingly made.

We are not called upon, 'in the case at bar, to determine whether there may not be cases where a witness may not subject himself to an action for damages for statements made while giving his testimony, where he abuses his privileges'as a witness, and makes it an occasion to utter defamatory words against another, where the words are false, are not relevant to the issue, and where he is actuated by express malice.

The general rule is, that language used in the ordinary course of judicial proceedings, whether by the judge, a party, counsel, jurors or witnesses, is protected if it be relevant to the matter under consideration, and the court have jurisdiction.

The privilege accorded to a witness, under such circumstances, is founded upon public policy. The due administration of justice requires that a witness should be perfectly free to speak according to his belief, without regard to consequences. He is sworn to tell the truth, the whole truth, and nothing but the truth, concerning the matter in trial. While doing so in good faith, he is absolutely privileged, and cannot be found guilty of perjury, nor is he liable to a civil action : thus far all the authorities agree.

An eminent author thus states the reason of the rule: countable to conscience alone, or perhaps to a supervising public sentiment, but not to the courts. What would be the condition of the witness, for instance, were he under the necessity of calculating, when giving his testimony, not merely whether it satisfied his conscience, but also whether he could prove it to be true, should he be sued for slander in giving it ? It is beyond doubt that to subject him to such responsibility, would at least detract largely from the reliability of evidence, and multiply the opportunities for operating upon the fears of witnesses to the serious detriment of justice.” Cooley on Torts, 211.

“We unhesitatingly recognize the fact that in many cases, however damaging it may be to individuals, there should and must be legal immunity for free speaking, and that justice and the cause of good government would suffer if it were otherwise. With duty often comes a responsibility to speak openly, and act fearlessly, let the consequences' be what they may ; and the party upon whom the duty was imposed, must be left ac-

In a recent English case (Munster v. Lamb, 23 American Law Register, 12; 11 L. R., Q. B. Div. 588), Brett, Master of the Rolls, says:

“ Actions for libel and slander have always been subject to one principle; defamatory statements though they may be actionable on ordinary occasions, nevertheless are not actionable when they are made upon certain occasions; it is not that these statements are libel and slander subject to a defense, but the principle is, that defamatory statements, if they are made on a privileged occasion, from the very moment when they are made, are not libel or slander of which the law tabes notice.”

Malice is either express or implied. If the occasion is such that the statement is privileged, the presumption of legal or implied malice is rebutted, and the burden is on the plaintiff to aver and prove malice in fact, or express malice, but even such malice does not render the words of a witness, who testifies, in good faith,to matters deemed by the court wherein he is testifying to be admissible, actionable, even though the testimony be irrelative to the issue. If the witness, in such a case, believe his statements to be true, though in fact they are false, malice in fact will not render him liable in damages.

What his liability in this respect may be, if he was guilty of intentional falsehood, and actual malice, we need not here determine, as the case made does not require it.

Neither does it require us to "determine such liability if a witness disregard the obligations of his oath, and willfully and maliciously perverts the truth, and takes advantage of his position, to utter false, malicious and slanderous words.

Whether, in such cases, a witness is liable only to an indictment for perjury, as many authorities hold, or may also be liable to a civil action, as others maintain, is a question not now before us.

In the case at bar, the inference or presumption of malice that would arise, if the words were not spoken as a witness in a judicial proceeding, is rebutted by the occasion stated. Odgers on Libel and Slander, 186-193 ; Cooley on Torts, 211-215.

The burden of removing this presumption and of averring and proving a state of facts that would not justify a witness in claiming protection, rests upon the plaintiff.

The case made by the petition raises no question of fact 'for a jury. Whether a question is privileged, is a question of law. The petition does not make, if we concede one could be made, a case of a qualified privilege, to be submitted to a jury. The testimony was given before a competent court, by a sworn witness, in answer to pertinent interrogatories. His answers were, so far as we are advised, material to the case, made in good faith, and believed to be true, though in fact false. It is not averred that he went outside of his duty, and abused his privilege by knowingly and willfully uttering false and defamatory words.

This being so, public policy demands that he should be protected, even though he was actuated by malice, as well as a purpose to perform a duty imposed by law upon him as a witness. 23 Am. Law Register, note to case on p. 12; Lanning v. Christy, 30 Ohio St. 115.

Judgment of the district court reversed and that of the common pleas affirmed.  