
    PAGOTO v HANCOCK
    1. Libel and Slander — Judicial Proceeding — Privilege.
    A witness’s statements in a judicial proceeding are absolutely privileged when his statements are in some manner relevant or pertinent to the matter being tried, and there is a presumption that his statements are relevant.
    2. Libel and Slander — Judicial Proceeding — Privilege—Pleading.
    Summary judgment was properly granted to defendant where the complaint showed that defendant’s allegedly defamatory statements against plaintiff were made by him in a judicial proceeding, that plaintiff faffed to allege any fact that would take the case out of the privilege given to testimony in a judicial proceeding, that the plaintiff was apprised of this defect by defendant’s motion for summary judgment, and that plaintiff failed to amend his complaint.
    References for Points in Headnotes
    [1, 2] 50 Am Jur 2d, Libel .and Slander §§ 249, 250, 437, 451, 452.
    Testimony of witness as basis of civil action for damages, 12 ALR 1247, s. 54 ALR2d 1298.
    
       Pleading or raising defense of privilege in defamation action, 51 ALR2d 552.
    Appeal from Macomb, Hunter D. Stair, J.
    Submitted Division 2 June 19, 1972, at Lansing.
    (Docket No. 13223.)
    Decided June 27, 1972.
    Complaint by Joseph Pagoto against Barrington Hancock for slander. Summary judgment for defendant. Plaintiff appeals.
    Affirmed.
    
      Gottlieb, Eason & Goren, for plaintiff.
    
      Bush, Luce, Henderson, Black & Bankson, for defendant.
    
      Before: Fitzgerald, P. J., and Quinn and Danhof, JJ.
   Danhof, J.

The plaintiff brought this action seeking to recover for damages caused by an allegedly slanderous remark. From the plaintiff’s complaint, it appears that the allegedly defamatory remark was made by a witness during the course of a judicial proceeding. The defendant moved for summary judgment under GCR 1963, 117.2(1) on the ground of failure to state a claim upon which relief can be granted. The trial court granted the motion and the plaintiff has appealed. We affirm.

Generally speaking statements made by witnesses are absolutely privileged- Timmis v Bennett, 352 Mich 355 (1958), 3 Restatement of Torts, § 588, p 244. However, as the plaintiff points out, the privilege applies only when the allegedly defamatory statements are in some manner relevant or pertinent to the matter being tried.

Once it has been established that the statements were made during the course of a judicial proceeding there arises a presumption that they were relevant to the matter being tried. Sanders v Leeson Air Conditioning Corp, 362 Mich 692 (1961). A case that is quite similar to the case at bar is Hartung v Shaw, 130 Mich 177 (1902). Hartung was a libel action where the allegedly defamatory material was contained in an answer to a bill in chancery. At trial the defendants, objected to the introduction of testimony and the trial court ruled in their favor and directed a verdict. In discussing the issue the Court stated at p 180:

"Where a party shows in his declaration a publication presumptively privileged, it is his duty, in order to recover, to prove that the words spoken were not pertinent or relevant, and that they were not spoken bona Me. [Citations omitted.] If it be necessary to prove this, it is equally necessary to allege it. All the information the declaration gives is that the words complained of were uttered in an answer to a bill in chancery filed to obtain a partition of lands. For all that appears there may have been averments or allegations in the bill in chancery to which the averments of the answer were responsive.”

Because of the development of greatly liberalized rules of procedure in pleading one may question whether Hartung is any longer good law on its facts. However, the portion we have quoted is still good law on the facts of the case at bar. Even under our liberalized rules of procedure and pleading the plaintiffs complaint is fatally defective.

On its face the complaint shows that the statements were made by a witness in a judicial proceeding. The plaintiff alleged no facts that would take the case out of the privilege. The defendant’s motion for summary judgment squarely framed the issue and called the plaintiffs attention to the defect in his pleading. At no time did the plaintiff attempt to amend his pleadings. We see no reason to put the defendant to the trouble and expense of a trial when the plaintiff is unable to allege facts that would give him a claim upon which relief could be granted.

Affirmed, costs to the defendant.

All concurred.  