Shinglemeyer v. Wright.

(after stating the facts). 1. The above statement of facts is taken from appellant’s brief. It is a full compliance with Sup. Ct. Rule No. 40, with references to the record to support the statements. Counsel for appellee concede the correctness of the statement, but they say:

‘ ‘As several items contained in the record do not appear in the statement in appellant’s brief, and are necessary to a full understanding of the questions raised, we desire to submit this short statement of facts.”

Five pages of their brief are then occupied with a statement. This is not a compliance with the rule, which reads as follows:

“The brief of a party bringing a cause into this court shall contain a.clear and concise statement of the facts of the case, distinct from the argument, and of the errors upon which he relies, the questions involved, and the manner in which they are raised. The court will consider such statement sufficient and accurate, unless the opposite party shall point out in his brief wherein the statement is insufficient or inaccurate.”

Counsel for appellee cannot maKe a statement of facts from their point of- view, and leave this court to examine the record and both statements, and determine, which is' *239 correct. Under this rule it is the duty of the appellee to point out what essential statements are omitted, and to state them as an addition to appellant’s statement, with references to the record. We must, therefore, take the statement made by appellant’s counsel as correct. The references given by them to the record fully sustain it.

2. The court was in error in admitting the above letter and the statements made by defendant to the two detectives High and Larkins in.^regard to the larceny of his wheel. These were privileged communications. They were introduced and admitted for the purpose of showing malice. The trial judge was in doubt as to their competency, but finally admitted them. Privileged communications cannot be used for that purpose. Defendant’s property was stolen, and it was not only his privilege and right, but his duty, to give to the detectives, who, in this case, were specially .appointed for the purpose, all information he had, and, if he had suspicions of any person, to state who the person was, and the reasons for suspecting him. Such communications are made in the strictest confidence, and are as sacred, in the eye of the law, as the communications between client and lawyer, or patient and physician. To be evidence of malice, these communications must in themselves have been malicious, and would, therefore, form the basis themselves for an action for slander. If this be the law, no person would be safe from prosecution in communicating to police officers, whose duty it is to examine into the case and hunt for the criminal, his suspicions, or statements which might tend to implicate a person. Public policy forbids the adoption of such a rule. These detectives were under legal, as well as moral, obligations to keep these communications secret. They were not made for publication, and the officers had no right to divulge them to others. It is very doubtful if these detectives could be compelled to disclose in court such privileged communications. Such officers, especially in large cities, are entitled to know from the citizen against whom a crime has been committed all his suspicions and knowledge, *240 both in regard to the person suspected, and also in regard to his character and habits. The defendant did not make these statements for repetition. He made them for the exclusive use and benefit of the trusted and sworn officers of the law. They should have been forever locked in their breasts, and never disclosed; otherwise, few persons would dare to disclose to an officer the name of a suspect, or anything they had learned about his character.

3. In regard to the statement by defendant in the presence of the officer Henry, it was not a publication'.for which the law gives a remedy. She herself solicited the statement, and sent for the officer for the express purpose' of having the defendant repeat the statement in his presence. It would not have been stated to him except by her invitation. She might have left the defendant’s office. She waited some time for the officer to come, and then left, and, meeting the officer as she emerged from the building, came back with him for no other purpose than to ask him to repeat the statement in his presence. In Cristman v. Cristman, 36 Ill. App. 567, plaintiff was suspected of an assault with intent to murder. The defendant suspected the plaintiff, and so stated to an officer. Plaintiff took one King with him, and went to defendant’s house. King asked her, in the presence of plaintiff, if she had any idea who did it, to which defendant replied: “There is only two mean enough to do it, and Johnnie is one of them. Johnnie is the only one that would do it, and he is the one that did do it.” Held that plaintiff could not recover.

Where one received a letter containing libelous statements, and himself read the letter to others, held that he could not recover. Sylvis v. Miller, 96 Tenn. 94 (33 S. W. 921). There is no difference in principle between reading a letter to another and soliciting a person to make a similar verbal statement.

Where one sought from the superintendent of a railroad company a letter of recommendation for his friend, which letter was given, containing a statement that the person *241 had left the service of the company during a strike, held that this was not publishing a libel. Kansas City, etc., R. Co. v. Delaney, 102 Tenn. 289 (52 S. W. 151, 45 L. R. A. 600). The following cases sustain the same doctrine: Irish-American Bank v. Bader, 59 Minn. 329 (61 N. W. 328); Heller v. Howard, 11 Ill. App. 554; Fonville v. McNease, 1 Dud. (S. C.) 303; King v. Waring, 5 Esp. 13; Smith v. Wood, 3 Camp. 323; Haynes v. Leland, 29 Me. 233.

Plaintiff repeatedly testified that she sent for-the policeman to see if she did steal his wheel, and that she was going to make him prove it. The maxim, ‘ ‘ Volenti non fit injuria,” applies.

4. Plaintiff was put under no restraint in the defendant’s office by him prior to the arrival of the officer. She sought the interview, could have left at any time, and finally did leave of her own accord, and voluntarily returned with the officer. She is the sole witness to testify that the defendant said he wanted her locked up. The officer does not testify that defendant said he wanted her arrested, and defendant expressly denies it. Whatever restraint the officer placed upon her, if any, is not shown to have been at the request of the defendant. The officer testified that he said to her:

“ ‘ Under the circumstances, I guess, as he accuses you of stealing his bicycle, you will have to go to the station.’ At first she said she would not go, and I .said, ‘You better go easily, because he accuses you of stealing his bicycle.’ ”

Whether this was said in the presence of defendant does not appear. She then went to the station with the officer, where she met the detectives High and Larkins, and went with them to the depot to see if she could be identified as the woman who checked a wheel to Toledo. The person checking the wheel failed to identify her, and she then went to her residence.

Under the uncontradicted testimony, the defendant could not be held liable for false imprisonment. If plain *242 tiff was illegally restrained of her liberty, the officer alone is responsible for it. He was there at her request, and was acting for her, and not for defendant.

Judgment reversed, and no new trial ordered.