[459]. Revis v. Smith, 18 C. B. 126; Henderson v. Broomhead, 4 H. & N. 569; Dawkins v. Rokeby, L. R. 7 H. L. 744, L. R. 8 Q. B. 255 (military court of inquiry); Goffin v. Donnelly, 6 Q. B. D. 307 (select committee of House of Commons); Gompas v. White, 6 T. L. R. 20; Watson v. Jones, [1905] A. C. 480 (privilege extends to statement to client and solicitor in preparation of case for trial); Terry v. Fellows, 21 La. Ann. 375; Hunckle v. Voneiff, 69 Md. 173; Dodge v. Gilman, 122 Minn. 177; Runge v. Franklin, 72 Tex. 585; Kennedy v. Hilliard, 10 Ir. C. L. R. 195 Accord. But the English courts do not extend the doctrine to hearings before an administrative board. Atwood v. Chapman, 111 L. T. 726.
See also Hutchinson v. Lewis, 75 Ind. 55; Liles v. Gaster, 42 Ohio St. 631.
In Dawkins v. Lord Rokeby, supra, Lord Penzance said: “It is said that a statement of fact of a libellous nature which is palpably untrue—known to be untrue by him who made it, and dictated by malice—ought to be the subject of a civil remedy, though made in the course of a purely military inquiry. This mode of stating the question assumes the untruth and assumes the malice. If by any process of demonstration, free from the defects of human judgment, the untruth and malice could be set above and beyond all question or doubt, there might be ground for contending that the law of the land should give damages to the injured man.
“But this is not the state of things under which this question of law has to be determined. Whether the statements were, in fact, untrue, and whether they were dictated by malice, are, and always will be, open questions, upon which opinions may differ, and which can only be resolved by the exercise of human judgment. And the real question is, whether it is proper on grounds of public policy to remit such questions to the judgment of a jury. The reasons against doing so are simple and obvious. A witness may be utterly free from malice, and may yet in the eyes of a jury be open to that imputation; or, again, the witness may be cleared by the jury of the imputation, and may yet have to encounter the expenses and distress of a harassing litigation. With such possibilities hanging over his head, a witness cannot be expected to speak with that free and open mind which the administration of justice demands.
“These considerations have long since led to the legal doctrine that a witness in the courts of law is free from any action; and I fail to perceive any reason why the same considerations should not be applied to an inquiry such as the present, and with the same result.”
[460]. The statement, arguments of counsel and parts of the opinion are omitted.
[461]. “White v. Carroll, rightly understood, is in harmony with the other cases. The case shows that the court held that the answer given to the question put to the defendant as a witness before the surrogate was not material and pertinent to the inquiry; and further held it was privileged if the defendant, when he gave it, in good faith believed that it was; and whether he so believed, was a question of fact to be determined by the jury. Had the evidence proved that the answer was material and pertinent, the court must have held it privileged, irrespective of the defendant’s belief upon the subject.” Grover, J., in Marsh v. Ellsworth, 50 N. Y. 309, 313.
“It seems to be settled by the English authorities that judges, counsel, parties, and witnesses are absolutely exempted from liability to an action for defamatory words published in the course of judicial proceedings; and that the same doctrine is generally held in the American courts, with the qualification, as to parties, counsel, and witnesses, that their statements made in the course of an action must be pertinent and material to the case.” Lord, J., in McLaughlin v. Cowley, 127 Mass. 316, 319.
“The examination of witnesses is regulated by the tribunal before which they testify, and if witnesses answer pertinently questions asked them by counsel which are not excluded by the tribunal, or answer pertinently questions asked them by the tribunal, they ought to be absolutely protected. It is not the duty of a witness to decide for himself whether the questions asked him under the direction of the tribunal are relevant. As the witness is sworn to tell the whole truth relating to the matter concerning which his testimony is taken, he ought also to be absolutely protected in testifying to any matter which is relevant to the inquiry, or which he reasonably believes to be relevant to it. But a witness ought not to be permitted with impunity to volunteer defamatory statements which are irrelevant to the matter of inquiry, and which he does not believe to be relevant. This statement of the law we think, is supported by the decisions in this Commonwealth. The English decisions, perhaps, go somewhat further than this in favor of a witness; certainly they apply the rule liberally for his protection.” Field, J., in Wright v. Lothrop, 149 Mass. 385, 389.
The principal case and the preceding extracts in this note represent the views of the American courts in general.