Summary
holding that "testimony given before the grand jury is privileged, and. in a case for malicious prosecution,... is therefore inadmissible"
Summary of this case from Stillwagon v. City of Del.Opinion
No. 22785
Decided June 17, 1931.
Malicious prosecution — Testimony before grand jury privileged and inadmissible in civil action.
ERROR to the Court of Appeals of Summit county.
This is a proceeding in error to reverse the judgment of the Court of Appeals of Summit county. John Hower began an action in the court of common pleas of that county for damages for malicious prosecution against the Taplin-Rice-Clerkin Company. In his petition he alleged that said company had procured his indictment by the grand jury of Summit county on a charge of embezzlement, which indictment was thereafter nolled, whereupon this action was begun.
Upon the trial the testimony of William Clerkin, a member of the defendant firm, given before the grand jury, was introduced in evidence over the objection and exception of plaintiff in error; it being claimed that such testimony was privileged. Clerkin's testimony was the chief testimony introduced before the grand jury and upon which the indictment was based. The grand jury returned an indictment for embezzlement, which indictment was prepared by the prosecuting attorney and was afterward nolled as above stated. This action in malicious prosecution was then instituted, and upon trial the court directed a verdict in favor of the defendant company, for the reason that the statements made by Clerkin before the grand jury, whether true or false, were not such as to charge any crime under the laws of Ohio; hence, the indictment for embezzlement was the result of misinformation from the prosecutor, or wrong action on the part of the grand jury, and not chargeable to the complaining witness.
The Court of Appeals reversed the action of the trial judge for directing a verdict at the close of the plaintiff's testimony and entering final judgment thereon, and remanded the case to the court of common pleas for further proceedings according to law. Error is now prosecuted to this court to reverse such judgment.
Messrs. Slabaugh, Seiberling, Huber Guinther, for plaintiff in error.
Mr. Lee J. Myers, for defendant in error.
The sole question for determination in this case is whether or not the testimony of William Clerkin given before the grand jury in the investigation of the charges against John F. Hower constituted privileged matter and the trial court erred in admitting the same.
This testimony of Clerkin before the grand jury was the cornerstone of the plaintiff's case in the trial court, and it is admitted that if this testimony is privileged, and therefore excluded, the plaintiff in the malicious prosecution case must fail.
The trial court admitted this testimony in evidence upon the authority of Kintz v. Harriger, 99 Ohio St. 240, 124 N.E. 168, 12 A. L. R., 1240. This court in Erie County Farmers' Ins. Co. v. Crecelius, 122 Ohio St. 210, 171 N.E. 97, decided that a libel action could not be founded on a defamatory statement made in a pleading in a court proceeding, where the statement was material and relevant to the issue. In Buehrer v. Provident Mutual Life Ins. Co., 123 Ohio St. 264, 175 N.E. 25, this court held that defamatory statements inserted in a pleading are privileged, though untrue.
In the light of these cases decided by this court since the decision of Kintz v. Harriger, supra, and consistent with the later declarations, it becomes our duty to overrule the conclusions of Kintz v. Harriger, supra, and hold that testimony given before the grand jury is privileged, and, in a case for malicious prosecution, such as the case at bar, is therefore inadmissible. The case of Vogel, Exr., v. Gruaz, 110 U.S. 311, 4 S. Ct., 12, 28 L.Ed., 158, is a leading case recognizing this doctrine and has been frequently followed in both federal and state courts. The same rule also prevails in other jurisdictions. McClarty v. Bickel, 155 Ky. 254, 159 S.W. 783, 50 L.R.A. (N.S.), 392; Bazzell v. Illinois Central Rd. Co., 203 Ky. 626, 262 S.W. 966; Michael v. Matson, 81 Kan. 360, 105 P. 537; Worthington v. Scribner, 109 Mass. 487, 12 Am. Rep., 736.
Finding that the testimony of Clerkin given before the grand jury should not have been admitted, upon the ground of privilege, and that without such testimony the plaintiff below had no case, we are compelled to reverse the judgment of the Court of Appeals and render final judgment for the plaintiff in error, defendant below.
Judgment reversed.
MARSHALL, C.J., JONES, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.