STRYKER V. BARBERS SUPER MKTS., INC., 1969-NMCA-119,
81 N.M. 44, 462 P.2d 629 (Ct. App. 1969)
ROBERT L. STRYKER and STRYKER REALTY,
INC., a New Mexico
Corporation, Plaintiffs-Appellants,
vs.
BARBERS SUPER MARKETS, INC., a New Mexico Corporation, and
J. C. HORN, Defendants-Appellees
COURT OF APPEALS OF NEW MEXICO
1969-NMCA-119, 81 N.M. 44, 462 P.2d 629
Appeal from the District Court of Dona
Ana County, Stanley, Judge.
J. R. CROUCH, Crouch & Lenko, Las
Cruces, New Mexico, Attorneys for Plaintiffs-Appellants.
W. A. SLOAN, Rodey, Dickason, Sloan, Akin
& Robb, Albuquerque, New Mexico, Attorneys for Defendants-Appellees.
WOOD, Judge, wrote the opinion.
Waldo Spiess, C.J., Gerald D. Fowlie, D.J.
{1} The appeal is concerned
with the privilege accorded to libelous matter appearing in pleadings filed in
a lawsuit.
{2} Defendants herein sued
the plaintiffs in the District Court of Bernalillo County.
{*45}
Defendants' complaint alleged plaintiffs conspired to and in fact did
perpetrate a fraud upon defendants and recovered a secret profit. The complaint
alleged these acts were in violation of plaintiffs' duties as real estate
brokers and salesmen and in violation of § 67-24-29, N.M.S.A. 1953 (Repl. Vol.
10, pt. 1, Supp. 1969). Such a statutory violation would subject plaintiffs to
criminal penalties. Section 67-24-34, N.M.S.A. 1953 (Repl. Vol. 10, pt. 1,
Supp. 1969). The allegations were repeated in an amended complaint.
{3} Plaintiffs sued
defendants for libel. In their libel complaint, plaintiffs asserted that the
allegations in the Bernalillo County suit were false, that defendants knew the
allegations were false when they made them and that defendants made the allegations
maliciously, recklessly and for the sole purpose of injuring the plaintiffs'
reputation, good name and business. Plaintiffs also asserted that defendants
knew or should have known that the allegation concerning the statutory
violation accused plaintiffs of a crime.
{4} Asserting the libel
complaint failed to state a claim upon which relief could be granted,
defendants moved to dismiss. The trial court sustained the motion. Plaintiffs
appeal.
{5} "A motion to dismiss
for failure to state a claim upon which relief can be granted, * * * admits
well-pleaded facts. * * *" Stewart v. Ging,
64 N.M. 270,
327 P.2d 333
(1958). Thus, when the trial court dismissed the complaint, it was admitted
that defendants had included defamatory matter in the Bernalillo County
complaint and had done so falsely and maliciously.
{6} Judicial pleadings are
privileged. Our concern is with the extent of the privilege and when it is to
be accorded. Plaintiffs contend the privilege is not absolute. They assert that
defamatory matter is privileged only if it is pertinent, relevant and material
to the pleading in which the defamation appears and only if the pleading is
without malice. Plaintiffs claim the trial court committed two errors in
dismissing their complaint. One, because pertinency, relevancy and materiality
are questions of fact and thus could not be decided as a matter of law in
ruling on the motion. Two, because, for the purpose of the motion, malice was
admitted.
{7} Plaintiffs cite Ward v.
Ares,
29 N.M. 418,
223 P. 766 (1924) in support of these contentions. The case
is not in point; it did not consider the privilege to be accorded defamatory
material in judicial pleadings.
{8} Generally, defamation in
judicial proceedings is privileged even though the defamation is false or
malicious.
Veeder, Absolute Immunity in Defamation, 9 Colum.L. Rev. 463,
474 (1909). An apparent exception is Louisiana. See Sunseri v. Shapiro, 138
So.2d 661 (La. App. 1962). The reason for this absolute privilege is stated by
Veeder,
supra, at 477, 478:
"The absolute immunity of parties litigant rests upon
the public policy which deems it desirable that all suitors, whether malicious
and bold, or conscientious and timid, should have free access to the conscience
of the State with whatever complaint they choose to make. This is necessary to
a thorough and searching investigation of the truth. Should the parties to a
cause be placed in fear of suits for libel or slander for reflections case upon
parties or others, * * * the trial of civil causes would be far less likely to
lead to correct results than where such embarassment [sic] [embarrassment] was
not felt. Perfect freedom to say in their pleadings whatever the parties choose
to bring to the consideration of the court or jury tends obviously to promote
the intelligent administration of justice. * * *"
{9} The courts, however, have
not used uniform language in determining when this absolute privilege is to be
accorded to the defamatory material. It has been held that the defamation is
absolutely privileged only if the defamation is: (a) "relevant" --
King v. Hildebrandt, 331 F.2d 476 (2nd Cir. 1964); (b) "relevant or
pertinent" -- Fleming v. Adams, 153 N.Y.S.2d 964 (Sup. 1956); (c)
"relevant or material"
{*46} --
Goodman v. Goldstein, 145 So.2d 882 (Fla. App. 1962). As to this variety of
language, Prosser, Law of Torts (3rd Ed. 1964) states at p. 798:
"* * * Nearly all of the American courts, * * * have
said that there is no immunity unless the particular statement is in some way
'relevant' or 'pertinent' to some issue in the case. On this basis defendants
have been held liable, for example, for entirely foreign and irrelevant
defamation of a person in no way involved in the suit. But it is generally
agreed that 'relevancy' does not mean that the statement must come within the
technical rules of evidence, * * * Most of our courts have adopted what appears
to be a standard of good faith, requiring only that that the statement have
some reasonable relation or reference to the subject of inquiry, or be one that
'may possibly be pertinent,' with all doubts resolved in favor of the defendant
- * * *"
{10} The following cases
accord an absolute immunity to the defamation if it has a reasonable relation
to the action. Whelan v. Wolford, 164 Cal. App.2d 689, 331 P.2d 86 (1958);
Richeson v. Kessler, 73 Idaho 548, 255 P.2d 707 (1953); Fenning v. S. G.
Holding Corp., 47 N.J. Super. 110, 135 A.2d 346 (1957); see Restatement, Torts
§ 587 (1938).
Fenning, supra, states:
"* * * The doctrine that an absolute immunity exists in
respect of statements, even those defamatory and malicious, made in the course
of proceedings before a court of justice, and having some relation thereto, is
a principle firmly established * * *."
{11} The precise question has
not been decided in New Mexico. Plaintiffs remind us of the statement in
Stewart v. Ging, supra:
"* * * Absolute immunity from responsibility without
regard to purpose, motive, or reasonableness of conduct is, and should be,
confined to a very few rather well-recognized situations * * *."
{12} That is true. But the
situation here is one of those well recognized situations. "* * *
[J]udicial proceedings were historically the first in which such a privilege
[absolute immunity] was granted, * * *" 69 Harv.L. Rev. 875, at 920. See
Adams v. Tatsch,
68 N.M. 446,
362 P.2d 984 (1961).
{13} We hold that defamatory
matter in judicial pleadings, even if false and malicious, is absolutely
privileged. To be accorded this privilege, however, the defamatory matter must
be reasonably related to the subject of inquiry.
{14} Plaintiffs contend the
allegedly defamatory matter was not reasonably related to the subject of
inquiry in the Bernalillo County case. We disagree. The allegations of
conspiracy to defraud, fraud, violation of the duties of real estate brokers
and salesmen and violation of § 67-24-29, supra, are the basis for the relief
claimed in both the original and amended complaints. Plaintiffs would avoid
this result because some of the relief sought in the Bernalillo County case was
not against them. This does not change the result. All of the allegedly
defamatory material was reasonably related to the subject of inquiry in that
case and being reasonably related is to be accorded an absolute privilege.
{15} Plaintiffs also contend
that whether the defamatory matter is reasonably related to the subject of
inquiry in the lawsuit is a question of fact. We disagree. The question is one
of law and was properly decided by the court. See 69 Harv.L. Rev. 875, at 923;
Whelan v. Wolford, supra; Richeson v. Kessler, supra; Dodge v. Henriod, 21 Utah
2d 277, 444 P.2d 753 (1968); Gold Seal Chinchillas, Inc. v. State, 69 Wash.2d
828, 420 P.2d 698 (1966); compare Stewart v. Ging, supra.
{16} The order dismissing
plaintiffs' complaint is affirmed.
WALDO SPIESS, C.J., GERALD D. FOWLIE, D.J.