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Slander. Fulton Superior Court. Before Judge Pharr.
FULTON, Chief Judge.
The alleged slanderous statement of one of the co-defendants, made in the course of the testimony as a witness in a trial, was absolutely privileged, being an answer In direct response to questions by counsel which were not forbidden by the court, and was not actionable. The court did not err in its judgment directing a verdict for the defendants.
Oze R. Horton brought an action jointly and severally against Benjamin F. Tingle, Jr. and M. Dave Tingle for damages for an alleged wilful, malicious, false and untrue statement concerning the plaintiff, made by defendant Benjamin Tingle, Jr. in the course of the testimony in the trial of another action. Each defendant filed a general and a special demurrer to the petition and an answer which admitted paragraph 1 of the petition and denied the remaining paragraphs thereof by number. The plaintiff demurred to and moved to strike the answers, which, as the plaintiff alleges, were uncertified as to service, on the grounds that they present no defense to the action and are pleas of general issue. The court sustained the special demurrer of both defendants and the general demurrer of defendant Dave Tingle, withheld ruling on the general demurrer of defendant Benjamin Tingle, Jr., and allowed the plaintiff 30 days in which to amend. The plaintiff amended his petition, count 1 of which alleges substantially as follows: that on January 30, 1962, the defendants, who were partners, were engaged with the plaintiff in a trial in the Civil Court of Fulton County; that defendant Benjamin Tingle, Jr., when asked, as a witness, the question, "What about the desk?", answered as follows: "I started to go to an attorney and go ahead and put a criminal warrant on him for actual thievery. He didn't have any right to go into my place and take the desk and put it in his place"; that defendant Dave Tingle was sitting in the courtroom as a party to that case and heard and acquiesced in the aforesaid testimony; that said statement charged the plaintiff with an offense punishable as a crime, was false, malicious, wilful, hurtful to the plaintiff and deliberately made according to a concerted plan of action with the intention of damaging the plaintiff in his business, character, etc.; that defendant Dave Tingle knew the said statement to be false; that said testimony was also heard by the presiding judge, a jury, attorneys and spectators. Count 2 consists of an action for words, based on said testimony, in the "Jack Jones form" (Ga. L. 1847, p. 490; Code of 1882, 3396). The court overruled the plaintiff's demurrer and motion to strike the defendants' answers. The case proceeded to trial before a jury, resulting in a directed verdict and judgment in favor of the defendants, from which judgment the plaintiff appeals, the court having overruled his motion for a new trial as amended.
1. The first enumerated error is the court's judgment overruling the plaintiff's demurrers to the defendants' answers. The demurrers did not allege that the answers had not been served, but merely that they were "uncertified to as to service." Furthermore, this ground of the demurrers is not argued in the appellant's brief. For a situation involving failure of service, see Wright Contracting Co. v. Waller, 89 Ga. App. 827 (2c) (81 SE2d 541).
The answers were not pleas of "general issue." The defendant "may in a single paragraph deny or admit any or all of the allegations in any or all of the paragraphs of the petition." Code 81-306 (Ga. L. 1893, p. 56; Ga. L. 1895, p. 46). The court, therefore, did not err in its judgment overruling the demurrers to the answers.
2. Enumerated errors 2, 3 and 4 are the court's judgments directing a verdict and entering judgment for the defendants and overruling the plaintiff's motion for new trial.
The alleged slanderous statement was given as evidence in open court by a witness, whose duty it was to answer questions propounded to him. Such statements are deemed privileged communications. Code 105-709 (1). Whether such testimony is a matter of absolute or merely conditional privilege determines whether or not it can be action able as slander. Apparently, the first Georgia case dealing with this question is Hendrix v. Daughtry, 3 Ga. App. 481 (60 SE 206), which held that, "[a]s against an action for slander, answers of a witness, responsive to question asked by counsel and not disallowed by the court, are absolutely privileged." (Emphasis supplied.) The later case of Buschbaum v. Heriot, 5 Ga. App. 521 (2) (63 SE 645), rather than following the holding that testimony is absolutely privileged, held instead that "[t]he circumstances under which testimony is given determine whether the privilege of a witness is absolute or conditional." These somewhat inconsistent pronouncements may be reconciled if the Hendrix v. Daughtry case is construed to mean that the testimony is absolutely privileged, conditioned on the fact that it is responsive to questions asked by counsel and not disallowed by the court. It would seem that a more concise and accurate statement of the law would have been that the testimony is conditionally privileged (the conditions being those above mentioned). The latter is apparently the effect of subsequent decisions, although there persists a tendency to categorize testimony as either absolutely or conditionally privileged, rather than simply recognizing that it is all conditionally privileged, in that, to be privileged at all, it must meet certain specified conditions, or criteria. This dichotomy was further expounded in Buschbaum v. Heriot, supra, as follows: "Generally the testimony delivered in a judicial proceeding and before a court with jurisdiction to consider the questions at issue is absolutely privileged. No actionable liability attaches to a witness for any statement in his testimony (no matter how false or malicious it may be), unless the witness, without being asked, volunteers a false and malicious defamatory statement which is not pertinent, and which the witness neither believes to be true nor has any sufficient reason to believe to be material. The answers of a witness in direct response to questions by counsel (which have not been forbidden by the court) are absolutely privileged; and through the statements of the witness in testimony thus adduced be not only defamatory and malicious, but knowingly false, a prosecution for perjury is the only redress provided by law." This case was followed in Veazy v. Blair, 86 Ga. App. 721, 724 (72 SE2d 481). This distinction of terms would not be so important were it not for the fact of the consequences of the classification of privileges. "The characteristic feature of absolute, as distinguished from conditional, privilege, is that in the former the question of malice is not open; an inquiry into good faith is closed" ( Atlanta News Pub. Co. v. Medlock, 123 Ga. 714 (3) (51 SE 756, 3 LRA (NS) 1139); Camp v. Maddox, 93 Ga. App. 646, 650 (92 SE2d 581)), whereas under a conditional privilege, good faith and malice are both questions of fact to be submitted to and determined by a jury. Lamb v. Fedderwitz, 71 Ga. App. 249, 254 (30 SE2d 436). Our view that such testimony is conditionally privileged seems to be sustained in Atlanta Journal Co. v. Doyol, 82 Ga. App. 321, 328 (60 SE2d 802), which states that ". . . it is clear that the communications enumerated in Code 105-704 and 105-709 are only conditionally privileged. Fedderwitz v. Lamb, 195 Ga. 691 (25 SE2d 414)."
Assuming, then, that the subject testimony was conditionally privileged, did the conditions upon which the privilege depended exist? " 'Strict legal materiality or relevancy is not required to confer the privilege; and in determining what is relevant or pertinent the courts are liberal, resolving all doubt in favor of relevancy or pertinency.' 53 CJS 171, 104 (c) (1) (b). . . . According to the American Law Institute, Restatement, Torts, Vol. III, 588, the testimony of a witness is absolutely privileged 'if it has some relation' to the judicial proceeding in which he is testifying." Veazy v. Blair, 86 Ga. App. 721, 725, supra.
The action in which the alleged slanderous statement was made was one by the plaintiff against the defendants to recover an amount allegedly due him on account. The present petition alleges that the question which preceded the statement was, "What about the desk?" The certified transcript of excerpts of testimony of Ben Tingle, Jr. in the former case, admitted in evidence in the present case without objection, shows that the question to which the answer was given was, "Did you try to get the desk back from him?" In either event, the disposition of the subject desk was a pertinent matter of inquiry in that it was alleged to have represented a partial payment (the value or amount of which was in dispute) on the account. The question, or questions, were not forbidden by the court. The question remains as to whether the statement was responsive to the question(s) or was merely volunteered by the defendant and was actionable per se as accusing the plaintiff of the crime of larceny, as appellant contends. It will be noted that the defendant stated that he " started to go to an attorney and go ahead and put a criminal warrant on him for actual thievery." The fact that he did not actually do this could be construed as evidence that he was not convinced that the plaintiff had indeed stolen the desk. Similarly, the statement, that the plaintiff didn't have any right to go into his place and take the desk and put it in his (the plaintiff's) place, did not accuse the plaintiff of having stolen the desk, since it did not claim that the plaintiff did not think he had a right to take the desk. Under the aforementioned liberal tests of relevancy and pertinence, the answer had sufficient relation to the question to be considered as directly responsive. Under the authority of the Hendrix v. Daughtry and Buschbaum v. Heriot cases, supra, the testimony was therefore absolutely privileged. To state it another way, the conditions of the conditional privilege were met, making the privilege an absolute one. The court, therefore, did not err in directing the verdict in favor of defendant Ben Tingle, Jr. Since the statement was not actionable the direction of the verdict in favor of the co-defendant was likewise not error.
Judgment affirmed. Frankum and Pannell, JJ., concur.
Scott Walters, Jr., for appellees.
Oze R. Horton, for appellant.
Friday May 22 20:15 EDT

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