Faye Lyons v. Elsinore C. MacHris Gilliland, Also Known as Elsinore MacHris Gilliland

This is an appeal by plaintiff in a diversity action for libel from a judgment based on a jury verdict, holding that the libel charged was untrue, but that its publication was privileged.

The libel charged appellant with acts of adultery committed with appellee’s then husband. The words were libelous per se, and their publication admitted in a cross-complaint in a divorce action. Their alleged privilege rests upon their publication only in a judicial proceeding. Section 47 of the Civil Code of California reads, in pertinent part, as follows:

Materiality and relevancy are undisputed. Appellant’s real thrust on this appeal is that there was insufficient evidence that appellee acted without malice, or had reasonable and probable cause for believing the truth of the allegations.

Appellee testified she acted without malice. Appellant argues that wronged wives seldom admit, but almost universally have, “hatred, jealousy and even vindictiveness” against the other woman. This may well be true. If so, it presented a conflict in the evidence. That conflict was for a jury’s determination, and solely for a jury’s determination. That determination has been made and under well known legal…