Chapter VI: Defamation (5)

SMITH, J. Matter in justification must be pleaded. But according to some decisions, matter in excuse may be given in evidence under the general issue, or be pleaded. State _v._ Burnham, 9 N. H. 34, 43, and authorities cited; Carpenter _v._ Bailey, 53 N. H. 590. In this view of the case, it is, perhaps, immaterial whether or not the brief statement is defective. But, treating the brief statement and the motion to reject it as intended to raise the question whether the brief statement sets forth a defence, we are of opinion that it does not. The defendants probably intended to set out the excuse of a lawful occasion, good faith, proper purpose, and belief and probable cause to believe that the publication was true. They laid stress upon their business of publishing a newspaper. But professional publishers of news are not exempt, as a privileged class, from the consequences of damage done by their false news. Their communications are not privileged merely because made in a public journal. They have the same right to give information that others have, and no more. Smart _v._ Blanchard, 42 N. H. 137, 151; Palmer _v._ Concord, 48 N. H. 211, 216; Sheckell _v._ Jackson, 10 Cush. 25. The occasion of the defendants’ publishing a false charge of crime against the plaintiff was not lawful, if the end to be attained was not to give useful information to the community of a fact of which the community had a right to be and ought to be informed, in order that they might act upon such information. State _v._ Burnham, 9 N. H. 34, 41, 42; Palmer _v._ Concord, 48 N. H. 211, 217; Carpenter _v._ Bailey, 53 N. H. 590; S. C. 56 N. H. 283. The defendants do not state facts that would constitute a lawful occasion. They make a loose averment of their general duty to give their readers such news as they (the defendants) might properly judge to be of interest and value to the community. This should be struck out of the record as insufficient and misleading. It is, in effect, an intimation that they published the libel in the usual course of their business, and is calculated to give the jury the erroneous impression that the defendants’ judgment of the propriety of the publication is evidence of the lawfulness of the occasion. The defendants’ general business of publishing interesting and valuable news was not, of itself, a lawful occasion for publishing this particular, false, and criminal charge against the plaintiff. It will be for the jury to say what weight the defendants’ business has as evidence on the question of malice. But however high the defendants’ vocation, and however interesting and valuable the truth which they undertake to give their readers, their ordinary and habitual calling is no excuse for assailing the plaintiff’s character with this false charge of crime. They must show specific facts constituting a lawful occasion in this particular instance, as if this false charge had been the only thing they ever published. They allege nothing of that kind. They do not state that the community had any interest which would have been protected or promoted by the publication complained of if it had been true, or had a right to be or ought to be informed of the subject-matter of it in order that they might act upon correct information of it, or that the information given would have been practically useful to anybody if it had been true. This is the substance of a lawful occasion. The brief statement contains no specification on this point.

_Motion granted._[479]

LAWLESS _v._ THE ANGLO-EGYPTIAN COTTON CO.
IN THE QUEEN’S BENCH, FEBRUARY 11, 1869.
_Reported in Law Reports, 4 Queen’s Bench, 262._

Libel. The declaration charged that the defendants falsely and maliciously published of the plaintiff, their manager, in a certain report of the affairs of the company, these words: “The shareholders will observe that there is a charge of £1,306 1_s._ 7_d._ for deficiency of stock, which the manager is responsible for; his accounts as such manager in the company have been badly kept, and have been rendered to us very irregularly.”

Plea: Not guilty. Issue thereon.[480]

It was objected on behalf of the defendants that there was no evidence of a publication of the libel, and that it was a privileged communication. The Chief Baron overruled the objections, but reserved leave to the defendants to move to enter a nonsuit on both points. The plaintiff having proved his special damage, the jury found a verdict for £500.

A rule having been obtained to enter a nonsuit pursuant to the leave reserved,

_Holker_, Q. C., and _Gorst_, showed cause.

_Manisty_, Q. C. (_R. C. Fisher_ with him), in support of the rule.

MELLOR, J. I am of opinion that the rule should be made absolute to enter a nonsuit. Had I been able to perceive that any substantial injustice might have been done by not leaving any question to the jury, I should have been disposed to send the case down for a new trial. But I think there was no evidence of express malice which ought to have been left to the jury.

As I understand the facts of the case, the plaintiff was employed as the agent of the defendants in Egypt, and his transactions were necessarily brought under the notice of the auditors, who are appointed by Act of Parliament, or at all events by the articles of association of the company, and who are fit persons to investigate the accounts of the company. The auditors considered that a deficiency in the stock of the company was owing in some sense to the plaintiff’s default, and they expressed that opinion in their report. It seems they did this after having received such explanations as Mr. Bell could offer, but it must be observed that those explanations were offered to the auditors and not to the directors. What the directors did was this, in their report to a meeting of the shareholders they appended the statement which had been made to them by the auditors. There is nothing whatever to show that the directors had any reason to doubt the truth of that statement, and there was no evidence of any act on their part from which malice could be inferred, and therefore I think the Chief Baron was right in not putting the question of malice to the jury. As to the question of intrinsic or extrinsic evidence, the report was one which the directors were fully warranted in believing was correct; and there is nothing to show that the directors acted otherwise than _bona fide_ in communicating it to the shareholders. No doubt the directors are to make their report to a meeting of the shareholders, to be called for that purpose, and it is clear that those who are absent are bound by the acts of those who are present, but the absent shareholders are interested in the prosperity or adversity of the company, and in knowing all the circumstances upon which the welfare of the company depends. It seems to me, therefore, that to print the report was a necessary and reasonable mode of communicating it to all the shareholders, who must be more or less numerous.

This case does not fall within the rule in Cooke _v._ Wildes, 5 E. & B. 328; 24 L. J. Q. B. 367. There the question of malice was properly left to the jury, because the letter contained defamatory expressions which were unnecessary; the defendant was not content with stating the facts that he had heard, but he made a calumnious observation of his own and put a gloss on the plaintiff’s conduct which was libellous. There was therefore intrinsic evidence of malice, and that the defendant had not acted _bona fide_, and these questions were properly left to the jury. I think we are bound by the cases of Somerville _v._ Hawkins and Taylor _v._ Hawkins, 16 Q. B. 308; 20 L. J. Q. B. 313. The principle there laid down is, that where there is no evidence of malice the judge ought not to leave any question to the jury. Here I think the conduct of the directors negatives malice on their part, and it is clear that they acted _bona fide_. I think we should be going against what I may call progress, if we were to hold that the delivery of the manuscript of the report to the printer, for the purpose of having it printed, is a publication which prevents the communication from being privileged. I also think that it was the duty of the directors to communicate the report not only to the shareholders present at the meeting, but to all the shareholders, and that they had an interest in receiving it. I am glad that Mr. Holker called our attention to the American authority, for it supports the judgment of the court. In Philadelphia, Wilmington, and Baltimore Railroad Company _v._ Quigley, 21 Howard (Rep. Sup. Court, U. S.), 202, it was held that it was within the course of business and employment of the president and directors for them to investigate the conduct of their officers and agents, and to report the result to the stockholders. It was also held, in the absence of malice and bad faith, that the report to the shareholders was privileged; therefore, to this extent, that case appears to me to be an express authority. But, independently of any authority, I am quite prepared to hold that a company, having a great number of shareholders all interested in knowing how their officers conduct themselves, are justified in making a communication in a printed report, relating to the conduct of their officers, to all the shareholders, whether present or absent, if the communication be made without malice and _bona fide_. The communication in this case is _prima facie_ privileged, and there being no evidence intrinsic or extrinsic of malice, that question was very properly not left to the jury. I think the conclusion at which the Chief Baron arrived at _nisi prius_ without hearing any argument erroneous, and with great deference to that eminent and learned judge, I am of opinion this rule to enter a nonsuit should be made absolute.

_Rule absolute._[481]

PADMORE _v._ LAWRENCE
IN THE QUEEN’S BENCH, JANUARY 18, 1840.
_Reported in 11 Adolphus & Ellis, 380._

Case for slander. The words charged to have been spoken by the
defendant imputed that the plaintiff had stolen a brooch belonging to
the defendant’s wife; and they were said to have been uttered in a
discourse, &c., and in the hearing of one Jane Cole and divers, &c.

Pleas. 1. Not guilty. 2. A traverse of part of the inducement not
material here.

On the trial before Parke, B., at the Hampshire summer assizes, 1838,
it appeared that the plaintiff had called at the defendant’s house,
and that soon afterwards the brooch was missed; that defendant then
went to an inn, where the plaintiff was, and stated to her his
suspicions, in the presence of a third person; and that the plaintiff,
with her own concurrence, was afterwards searched by Jane Cole and
another female, who were called in for the purpose and to whom the
defendant at the time repeated the charge. The brooch was not found on
the plaintiff, but was afterwards discovered to have been left by the
defendant’s wife at another place. The defendant’s counsel first
applied for a nonsuit, which the learned judge refused. The
defendant’s counsel then, in his address to the jury, contended that
the words were spoken without malice, under circumstances which
privileged them. The learned judge told the jury that the verdict must
be for the plaintiff, if they thought that the words imputed felony,
for that it was clear they were not privileged. Verdict for the
plaintiff.

In Michaelmas term, 1838, Erle obtained a rule for a new trial, on the
ground of misdirection.

_Crowder_ and _Butt_ now showed cause.

_Erle_ and _Barstow_, contra.[482]

LORD DENMAN, C. J. The question ought to have gone to the jury,
whether this charge was made _bona fide_. Unless Toogood _v._ Spyring
is to be overruled, it is clear that the judge was not warranted in
withdrawing that question from their consideration.

LITTLEDALE, J. The jury were to say whether the defendant believed
that the brooch was stolen by the plaintiff, and for that reason
charged her with having stolen it, and whether his language was
stronger than necessary, or whether the charge was made before more
persons than was necessary. The law has been laid down so over and
over again.

COLERIDGE, J. For the sake of public justice, charges and
communications, which would otherwise be slanderous, are protected if
_bona fide_ made in the prosecution of an inquiry into a suspected
crime. Then had not the defendant a right to make out that case? The
facts were for the jury. It is argued that the charge ought to be
true, or ought to be made only before an officer of justice. But the
exigencies of society could never permit such a restriction. If I stop
a party suspected, must not I say why I do so? Supposing it
unjustifiable to search a person against his will, here the plaintiff
agreed to be searched. The presence of other parties would not do away
with the privilege. When the two females were desired to make the
search, were they not to be told for what they were to look? The
question was clearly for the jury.

_Rule absolute._[483]

CHILD _v._ AFFLECK
IN THE KING’S BENCH, MAY 13, 1829.
_Reported in 9 Barnewall & Cresswell, 403._

Case for a libel. Plea, the general issue. At the trial before Lord Tenterden, C. J., at the Westminster sittings after Hilary term, it appeared in evidence that the plaintiff had been in the service of the defendants, Mrs. Affleck having before she hired her made inquiries of two persons, who gave her a good character. The plaintiff remained in that service a few months, and was afterwards hired by another person, who wrote to Mrs. Affleck for her character, and received the following answer, which was the alleged libel: “Mrs. A.’s compliments to Mrs. S., and is sorry that in reply to her inquiries respecting E. Child, nothing can be in justice said in her favor. She lived with Mrs. A. but for a few weeks, in which short time she frequently conducted herself disgracefully; and Mrs. A. is concerned to add she has, since her dismissal, been credibly informed she has been and now is a prostitute in Bury.” In consequence of this letter the plaintiff was dismissed from her situation. It further appeared that after that letter was written, Mrs. Affleck went to the persons who had recommended the plaintiff to her, and made a similar statement to them. Upon this evidence it was contended, for the defendants, that there was no proof of malice, and that consequently the plaintiff must be nonsuited. On the other hand, it was urged that Mrs. Affleck’s statement of what the plaintiff’s conduct had been after she left her service was not privileged, and that, at all events, that part of the letter and the statement that she voluntarily made to other persons, and not in answer to any inquiries, were evidence of malice. Lord Tenterden, C. J., was of opinion that the latter part of the letter was privileged, and that the other communications being made to persons who had recommended the plaintiff, were not evidence of malice, and he directed a nonsuit.

_F. Kelly_ now moved for a rule _nisi_ for a new trial.[484]

PARKE, J. The rule laid down by Lord Mansfield, in Edmondson _v._ Stevenson, Bull. N. P. 8, has been followed ever since. It is, that in an action for defamation in giving a character of a servant, “the gist of it must be malice, which is not implied from the occasion of speaking, but should be directly proved.” The question then is, whether the plaintiff in this case adduced evidence, which, if laid before a jury, could properly lead them to find express malice. That does not appear upon the face of the letter. _Prima facie_ it is fair, and undoubtedly a person asked as to the character of a servant may communicate all that is stated in that letter. Independently of the letter, there was no evidence except of the two persons that had recommended the plaintiff. The communication to them, therefore, was not officious, and Mrs. Affleck was justified in making it. In Rogers _v._ Clifton, 3 B. & P. 587, evidence of the good conduct of the servant was given, and the communication also appeared to be officious. In Blackburn _v._ Blackburn, 4 Bing. 395, the occasion of writing the alleged libel did not distinctly appear, it was therefore properly left to the jury to say, whether it was confidential and privileged or not, and they found that it was not. Here the letter was undoubtedly _prima facie_ privileged, the plaintiff, therefore, was bound to prove express malice in order to take away the privilege.

_Rule refused._[485]

COXHEAD _v._ RICHARDS
IN THE COMMON PLEAS, JANUARY 31, 1846.
_Reported in 2 Common Bench Reports, 569._

TINDAL, C. J.[486] This was an action upon the case for the publication of a false and malicious libel, in the form of a letter written by one John Cass, the first mate of a ship called The England, to the defendant; the letter stating that the plaintiff, who was the captain of the ship, and then in command of her, had been in a state of constant drunkenness during part of the voyage, whereby the ship and crew had been exposed to continual danger: and the publication by the defendant was, the communication by him of this letter to the owner of the ship, by reason whereof—which was the special damage alleged in the declaration—the plaintiff was dismissed from the ship, and lost his employment.

The defendant pleaded—first, not guilty; secondly, that the charges made by the mate against the plaintiff in his letter were true; and, lastly, that the shipowner did not dismiss the captain by reason, and in consequence, of the communication of the letter to him.

Upon the last two issues a verdict was found for the plaintiff; but, upon the first issue, for the defendant.

I told the jury at the trial, that the occasion and circumstances under which the communication of this letter took place, were such, as, in my opinion, to furnish a legal excuse for making the communication; and that the inference of malice,—which the law _prima facie_ draws from the bare act of publishing any statements false in fact, containing matter to the reproach and prejudice of another,—was thereby rebutted; and that the plaintiff, to entitle himself to a verdict, must show malice in fact: concluding by telling them that they should find their verdict for the defendant, if they thought the communication was strictly honest on his part, and made solely in the execution of what he believed to be a duty; but, for the plaintiff, if they thought the communication was made from any indirect motive whatever, or from any malice against the plaintiff. And the only question now before us, is, whether, upon the evidence given at the trial, such direction was right.

There was no evidence whatever that the defendant was actuated by any sinister motive in communicating the letter to Mr. Ward, the shipowner: on the contrary, all the evidence went to prove that what he did he did under the full belief that he was performing a duty, however mistaken he might be as to the existence of such duty, or in his mode of performing it. The writer of the letter was no stranger to the defendant: on the contrary, both were proved to have been on terms of friendship with each other for some years; and, from the tenor of the letter itself, it must be inferred the defendant was a person upon whose judgment the writer of the letter placed great reliance, the letter itself being written for the professed purpose of obtaining his advice how to act, under a very pressing difficulty. The letter was framed in very artful terms, such as were calculated to induce the most wary and prudent man (knowing the writer) to place reliance on the truth of its details: and there can be no doubt but that the defendant did in fact thoroughly believe the contents to be true, amongst other things, that the ship, of which Mr. Ward was the owner, and the crew and cargo on board the same, had been exposed to very imminent risk, by the continued intoxication of the captain on the voyage from the French coast to Llanelly, where the ship then was, and that the voyage to the Eastern Seas, for which the ship was chartered, would be continually exposed to the same hazard, if the vessel should continue under his command. In this state of facts, after the letter had been a few days in his hands, the defendant considered it to be his duty to communicate its contents to Mr. Ward, whose interests were so nearly concerned in the information; not communicating it to the public, but to Mr. Ward; and not accompanying such disclosure with any directions or advice, but merely putting him in possession of the facts stated in the letter, that he might be in a condition to investigate the truth, and take such steps as prudence and justice to the parties concerned required: in making which disclosure he did not act hastily or unadvisedly, but consulted two persons well qualified to give good advice on such an emergency—the one, an Elder Brother of the Trinity House—the other, one of the most eminent shipowners in London: in conformity with whose advice he gave up the letter to the owner of the ship. At the same time, if the defendant took a course which was not justifiable in point of law, although it proceeded from an error in judgment only, not of intention, still it is undoubtedly he, and not the plaintiff, who must suffer for such error.

The only question is, whether the case does or does not fall within the principle, well recognized and established in the law, relating to privileged or confidential communications; and, in determining this question, two points may, as I conceive, be considered as settled—first, that if the defendant had had any personal interest in the subject-matter to which the letter related, as, if he had been a part-owner of the ship, or an underwriter on the ship, or had had any property on board, the communication of such a letter to Mr. Ward would have fallen clearly within the rule relating to excusable publications—and, secondly, that if the danger disclosed by the letter, either to the ship or the cargo, or the ship’s company, had been so immediate as that the disclosure to the shipowner was necessary to avert such danger, then, upon the ground of social duty, by which every man is bound to his neighbor, the defendant would have been not only justified in making the disclosure, but would have been _bound_ to make it. A man who received a letter informing him that his neighbor’s house would be plundered or burnt on the night following by A. and B., and which he himself believed, and had reason to believe, to be true, would be justified in showing that letter to the owner of the house, though it should turn out to be a false accusation of A. and B. The question before us appears, therefore, to be narrowed to the consideration of the facts which bear upon these two particular qualifications and restrictions of the general principle.

As to the first, I do not find the rule of law is so narrowed and restricted by any authority, that a person having information materially affecting the interests of another, and honestly communicating it, in the full belief, and with reasonable grounds for the belief, that it is true, will not be excused, though he has no personal interest in the subject-matter. Such a restriction would surely operate as a great restraint upon the performance of the various social duties by which men are bound to each other, and by which society is kept up. In Pattison _v._ Jones, 8 B. & C. 578, the defendant, who had discharged the plaintiff from his service, wrote a letter to the person who was about to engage him, unsolicited; he was therefore a volunteer in the matter; and might be considered as a stranger, having no interest in the business; but, neither at the trial, nor on the motion before the court, was it suggested that the letter was, on that account, an unprivileged communication; but it was left to the jury to say whether the communication was honest or malicious. Again, in Child _v._ Affleck and Wife, the statement, by the former mistress, of the conduct of her servant, not only during her service, but after she had left it, was held to be privileged. The rule appears to have been correctly laid down by the Court of Exchequer, that, “if fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected, for the common convenience and welfare of society; and the law has not restricted the right to make them, within any narrow limits.” 1 C. M. & R. 181. In the present case, the defendant stood in a different situation from any other person; he was the only person in the world who had received the letter, or was acquainted with the information contained in it. He cannot, therefore, properly be treated as a complete stranger to the subject-matter of inquiry, even if the rule excluded strangers from the privilege.

Upon the second ground of qualification—was the danger sufficiently imminent to justify the communication—it is true, that the letter, which came to the defendant’s hands about the 14th of December, contains within it the information that the ship cannot get out of harbor before the end of the month. It was urged that the defendant, instead of communicating the letter to the owner, might have instituted some inquiry himself. But it is to be observed that every day the ship remained under the command of such a person as the plaintiff was described to be, the ship and crew continued exposed to hazard, though not so great hazard as when at sea; not to mention the immediate injury to the shipowner which must necessarily follow from want of discipline of the crew, and the bad example of such a master. And, after all, it would be too much to say, that, even if the thing had been practicable, any duty was cast upon _the defendant_, to lay out his time or money in the investigation of the charge.

Upon the consideration of the case, I think it was the duty of the defendant not to keep the knowledge he gained by this letter himself, and thereby make himself responsible, in conscience, if his neglect of the warnings of the letter brought destruction upon the ship or crew—that a prudent and reasonable man would have done the same; that the disclosure was made, not publicly, but privately to the owner, that is, to the person who of all the world was the best qualified, both from his interest in the subject-matter, and his knowledge of his own officers, to form the most just conclusion as to its truth, and to adopt the most proper and effective measures to avert the danger; after which disclosure, not the defendant, but the owner, became liable to the plaintiff, if the owner took steps which were not justifiable; as, by unjustly dismissing him from his employment, if the letter was untrue. And, as all this was done with entire honesty of purpose, and in the full belief of the truth of the information,—and that, a reasonable belief,—I am still of the same opinion which I entertained at the trial, that this case ranges itself within the pale of privileged communication, and that the action is not maintainable.

I therefore think the rule for setting aside the verdict and for a new trial, should be discharged.

CRESWELL, J. I cannot, without much regret, express an opinion in this case at variance with that which is entertained by my lord and one of my learned brothers. But, having given full consideration to the arguments urged at the bar, and the cases cited, and not being able to shake off the impression which they made in favor of the plaintiff, I am bound to act upon the opinion that I have formed. I will not repeat the facts of the case, which have been already stated, but proceed shortly to explain the grounds upon which my opinion rests.

There is no doubt that the letter published by the defendant of the plaintiff was defamatory; and the truth of its contents could not be proved. The plaintiff was, therefore, entitled to maintain an action against the publisher of that letter, unless the occasion on which it was published made the publication of such letter a lawful act, as far as the plaintiff was concerned, if done in good faith, and without actual malice. To sustain an action for a libel or slander, the plaintiff must show that it was malicious; but every unauthorized publication of defamatory matter is, in point of law, to be considered as malicious. The law, however, on a principle of policy and convenience, authorizes many communications, although they affect the characters of individuals; and I take it to be a question of law, whether the communication is authorized or not. If it be authorized, the legal presumption of malice arising from the unauthorized publication of defamatory matter, fails, and the plaintiff, to sustain his action, must prove actual malice, or, as it is usually expressed, malice in fact. In the present case, the existence of malice in fact was negatived by the jury; and if my lord was right in telling them, that, in the absence of malice in fact, the publication of the letter was privileged, this rule should be discharged. It therefore becomes necessary to inquire within what limits and boundaries the law authorizes the publication of defamatory matter. Perhaps the best description of those limits and boundaries that can be given in few words, is to be found in the judgment of Parke, B., in Toogood _v._ Spyring: “The law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is concerned.” It was not contended in this case that any _legal_ duty bound the defendant to communicate to the shipowner the contents of the letter he had received, nor was the communication made in the conduct of his own affairs, nor was his interest concerned: the authority for the publication, if any, must therefore be derived from some _moral_ duty, public or private, which it was incumbent upon him to discharge. I think it impossible to say that the defendant was called upon by any _public duty_ to make the communication; neither his own situation nor that of any of the parties concerned, nor the interests at stake were such as to affect the public weal. Was there then any _private_ duty? There was no relation of principal and agent between the shipowner and the defendant, nor was any trust or confidence reposed by the former in the latter; there was no relationship or intimacy between them; no inquiries had been made; they were, until the time in question, strangers: the duty, if it existed at all as between them, must, therefore, have arisen from the mere circumstance of their being fellow-subjects of the realm. But the same relation existed between the defendant and the plaintiff. If the property of the shipowner on the one hand was at stake, the character of the captain was at stake on the other; and I cannot but think that the moral duty not to publish of the latter defamatory matter which he did not _know_ to be true, was quite as strong as the duty to communicate to the shipowner that which he _believed_ to be true. Was, then, the defendant bound by any moral duty towards the writer of the letter, to make the communication? Surely not. If the captain had misconducted himself, the mate was capable of observing it, and was as capable of communicating it to the owner as to the defendant. The crew were, in like manner, capable of observing and acting for themselves. The mate (if he really believed that which he wrote to be true) might, indeed, be under a moral duty to communicate it to his owner: but the defendant had no right to take that vicarious duty upon himself: he was not requested by the mate to do so, but was, on the contrary, enjoined _not_ to make the communication.

I will not attempt to comment upon the very numerous cases that were quoted at the bar on the one side and on the other, but will advert to one or two which tend to explain the term “moral duty,” and see whether it has ever been held to authorize the publication of defamatory matter under circumstances similar to those which exist in the present case. In Bromage _v._ Prosser, Bayley, J., in his very elaborate judgment, speaks of slander as “_prima facie_ excusable on account of the cause of speaking or writing it, in the case of servants’ characters, confidential advice, or communications to those who ask it or have a right to expect it.” With regard to the characters of servants and agents, it is so manifestly for the advantage of society that those who are about to employ them should be enabled to learn what their previous conduct has been, that it may be well deemed the moral duty of former employers to answer inquiries to the best of their belief. But, according to the opinion of the same learned judge, intimated in Pattison _v._ Jones, 8 B. & C. 578, it is necessary that _inquiry_ should be made, in order to render lawful the communication of defamatory matter, although he was also of opinion that such inquiry may be invited by the former master. And in Rogers _v._ Clifton, Chambre, J., quoted a similar opinion of Lord Mansfield’s, expressed in Lowry _v._ Aikenhead, Mich. 8 G. 3, 3 B. & P. 594.

It was contended during the argument of this case, that the protection given to masters when speaking of the conduct of servants, was more extensive, and applied also to communications made to former employers; and Child _v._ Affleck was mentioned as an instance. But the communication to the former master was not made a ground of action in that case, and was introduced only as evidence that the statement made in answer to the inquiry of the new master was malicious. The same observation applies to Rogers _v._ Clifton; and it may be collected from that report that Chambre, J., was of opinion, that, where statements are made which are not in answer to inquiries, the defendant must plead, and prove, a justification.

Again, where a party asks advice or information upon a subject on which he is interested; or where the relative position of two parties is such that the one has a right to expect confidential information and advice from the other; it may be a moral duty to answer such inquiries and give such information and advice; and the statements made may be rendered lawful by the occasion, although defamatory of some third person, as in Dunman _v._ Bigg, 1 Campb. 269, and Todd _v._ Hawkins, 2 M. & Rob. 20, 8 C. & P. 88.

Two cases—Herver _v._ Dowson, Bull. N. P. 8, and Cleaver _v._ Sarraude, reported in M’Dougall _v._ Claridge, 1 Campb. 268—were quoted as authorities for giving a more extended meaning to the term “moral duty,” and making it include all cases where one man had information, which, if true, it would be important for another to know. But the notes of those cases are very short: in the former the precise circumstances under which the statement was made—see King _v._ Watts, 8 C. & P. 614, that such a statement made _without inquiry_ is not lawful—and in the latter, the position of the defendant with reference to the Bishop of Durham, to whom it was made, are left unexplained. I cannot, therefore, consider them as satisfactory authorities for the position to establish which they were quoted: and, in the absence of any clear and precise authority in favor of it, I cannot persuade myself that it is correct, as, if established at all, it must be at the expense of another moral duty, viz., not to publish defamatory matter unless you _know_ it to be true.

For these reasons, I am of opinion, that the rule for a new trial should be made absolute.

The court being thus divided in opinion, the rule for a new trial fell to the ground, and the defendant retained his verdict.[487]

JOANNES _v._ BENNETT
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER, 1862.
_Reported in 5 Allen, 169._

Tort brought on the 12th of June, 1860, in the name of “The Count Joannes (born ‘George Jones’)”[488] for two libels upon him contained in letters to a woman to whom he was then a suitor, and was afterwards married, endeavoring to dissuade her from entering into the marriage.

At the trial in this court, before Merrick, J., it appeared that the defendant had for several years held the relation of pastor to the parents of the woman, as members of his church, and to the daughter, as a member of his choir; and there was evidence tending to show that he was on the most intimate terms of friendship with the parents, and that, on the 18th of May, 1860, being on a visit from his present residence in Lockport, New York, he called upon the father at his place of business in Boston, and was urged by him to accompany him to his residence in South Boston, the father stating that both he and his wife were in great distress of mind and anxiety about their daughter, and that they feared she would engage herself in marriage to the plaintiff. On their way to South Boston, the father stated to the defendant what he and his wife had heard and apprehended about the plaintiff, and their views with regard to his being an unsuitable match for their daughter, who, with a young child by a former husband, was living with them. On reaching the house, it was found that the daughter had gone out; and it was then arranged that the defendant should write a letter, and materials for that purpose were furnished, and the letter set forth in the first count[489] was written, addressed to the daughter, and left open and unsealed with the mother, after the principal portion of it had been read aloud at the tea-table in the presence of the parents and a confidential friend of the family. On leaving, the defendant was further requested to do what he thought best to induce the daughter to break up the match.

The judge ruled that the letter was not a privileged communication; and a verdict was returned for the plaintiff. The defendant alleged exceptions.

BIGELOW, C. J. The doctrine, that the cause or occasion of a publication of defamatory matter may afford a sufficient justification in an action for damages, has been stated in the form of a legal rule or canon, which has been sanctioned by high judicial authority. The statement is this: A communication made _bona fide_ upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to perform, is privileged, if made to a person having a corresponding interest or duty, although it contains defamatory matter, which without such privilege would be libellous and actionable. It would be difficult to state the result of judicial decisions on this subject, and of the principles on which they rest, in a more concise, accurate and intelligible form. Harrison _v._ Bush, 5 E. & B. 344; Gassett _v._ Gilbert, 6 Gray, 94, and cases cited. It seems to us very clear that the defendant in the present case fails to show any facts or circumstances in his own relation to the parties, or in the motives or inducements by which he was led to write the letter set out in the first count of the declaration, which bring the publication within the first branch of this rule. He certainly had no interest of his own to serve or protect in making a communication concerning the character, occupation and conduct of the plaintiff, containing defamatory or libellous matter. It does not appear that the proposed marriage which the letter written by the defendant was intended to discountenance and prevent, could in any way interfere with or disturb his personal or social relations. It did not even involve any sacrifice of his feelings or injury to his affections. The person to whom the letter was addressed was not connected with him by the ties of consanguinity or kindred. It is not shown that he had any peculiar interest in her welfare. Under such circumstances, without indicating the state of facts which might afford a justification for the use of defamatory words, it is plain that the defendant held no such relation towards the parties as to give him any interest in the subject-matter to which his communication concerning the plaintiff related. Todd _v._ Hawkins, 2 M. & Rob. 20; S. C. 8 C. & P. 88. No doubt, he acted from laudable motives in writing it. But these do not of themselves afford a legal justification for holding up the character of a person to contempt and ridicule. Good intentions do not furnish a valid excuse for violating another’s rights, or give impunity to those who cast unjust imputations on private character.

It is equally clear that the defendant did not write and publish the alleged libellous communications in the exercise of any legal or moral duty. He stood in no such relation towards the parties as to confer on him a right or impose on him an obligation to write a letter containing calumnious statements concerning the plaintiff’s character. Whatever may be the rule which would have been applicable under similar circumstances while he retained his relation of religious teacher and pastor towards the person to whom this letter in question was addressed, and towards her parents, he certainly had no duty resting upon him after that relation had terminated. He then stood in no other attitude towards the parties than as a friend. His duty to render them a service was no greater or more obligatory than was his duty to refrain from uttering and publishing slanderous or libellous statements concerning another. It is obvious that if such communications could be protected merely on the ground that the party making them held friendly relations with those to whom they were written or spoken, a wide door would be left open by which indiscriminate aspersion of private character could escape with impunity. Indeed, it would rarely be difficult for a party to shelter himself from the consequences of uttering or publishing a slander or libel under a privilege which could be readily made to embrace almost every species of communication. The law does not tolerate any such license of speech or pen. The duty of avoiding the use of defamatory words cannot be set aside except when it is essential to the protection of some substantial private interest, or to the discharge of some other paramount and urgent duty. It seems to us, therefore, that on the question of justification set up by the defendant under a supposed privilege which authorized him to write the letter set out in the first count, the instructions of the court were correct.[490]

BEALS _v._ THOMPSON
SUPREME JUDICIAL COURT, MASSACHUSETTS, JUNE 20, 1889.
_Reported in 149 Massachusetts Reports, 405._

Tort for a libel contained in letters written by the defendant to the plaintiff’s husband, and charging her with having been guilty of dishonorable conduct, deception, and ingratitude and dishonesty towards the defendant, whereby she lost the comfort and society of her husband, who refused to live longer with her.[491]

The jury returned a verdict for the plaintiff in the sum of $30,000; and the defendant alleged exceptions.

FIELD, J. The exceptions also state, that the court refused “to instruct the jury that each of the letters mentioned in plaintiff’s declaration was a privileged communication, and that this action could not therefore be maintained,” and “instructed the jury that no privilege was shown.” No facts are recited in the bill of exceptions which tend to show that the occasion was privileged, except such as may be inferred from the relation of the parties to each other, and from the contents of the letters. Taking the case most favorably for the defendant, it is that the plaintiff owed a debt to the defendant for money lent to her before her marriage, which, after her marriage with a rich man, she refused to pay, under circumstances which showed ingratitude on her part, and that the defendant wrote a letter to the husband defamatory of the plaintiff, for the purpose of compelling him or her to pay the debt. This is not a lawful method of collecting a debt, or of compelling another person than the debtor to pay it. The defendant owed no duty to the husband to inform him of the bad conduct of his wife before her marriage, and the husband was under no obligation to pay the debts of his wife contracted before her marriage. There is no evidence that the defendant in sending the letter to the husband was acting in the discharge of any duty, social, moral, or legal. The ruling was right. Gassett _v._ Gilbert, 6 Gray, 94; Krebs _v._ Oliver, 12 Gray, 239; Joannes _v._ Bennett, 5 All. 169; Shurtleff _v._ Parker, 130 Mass. 293; White _v._ Nicholls, 3 How. 266.

_Exceptions overruled._[492]

TOOGOOD _v._ SPYRING
IN THE EXCHEQUER, TRINITY TERM, 1834.
_Reported in 1 Crompton, Meeson & Roscoe, 181._

The judgment of the court was delivered by

PARKE, B.[493] In this case, which was argued before my Brothers BOLLAND, ALDERSON, GURNEY, and myself, a motion was made for a nonsuit, or a new trial, on the ground of misdirection. It was an action of slander, for words alleged to be spoken of the plaintiff as a journeyman carpenter, on three different occasions. It appeared that the defendant, who was a tenant of the Earl of Devon, required some work to be done on the premises occupied by him under the earl, and the plaintiff, who was generally employed by Brinsdon, the earl’s agent, as a journeyman, was sent by him to do the work. He did it, but in a negligent manner; and, during the progress of the work, got drunk; and some circumstances occurred which induced the defendant to believe that he had broken open the cellar door, and so obtained access to his cider. The defendant a day or two afterwards met the plaintiff in the presence of a person named Taylor, and charged him with having broken open his cellar door with a chisel, and also with having got drunk. The plaintiff denied the charges. The defendant then said he would have it cleared up, and went to look for Brinsdon; he afterwards returned and spoke to Taylor, in the absence of the plaintiff; and, in answer to a question of Taylor’s, said he was confident that the plaintiff had broken open the door. On the same day the defendant saw Brinsdon, and complained to him that the plaintiff had been negligent in his work, had got drunk, and he thought he had broken open the door, and requested him to go with him in order to examine it. Upon the trial it was objected, that these were what are usually termed “privileged communications.” The learned judge thought that the statement to Brinsdon might be so, but not the charge made in the presence of Taylor; and in respect of that charge, and of what was afterwards said to Taylor, both which statements formed the subject of the action, the plaintiff had a verdict. We agree in his opinion, that the communication to Brinsdon was protected, and that the statement, upon the second meeting, to Taylor, in the plaintiff’s absence, was not; but we think, upon consideration, that the statement made to the plaintiff, though in the presence of Taylor, falls within the class of communications ordinarily called privileged; that is, cases where the occasion of the publication affords a defence in the absence of express malice. In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If _fairly_ warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.

Among the many cases which have been reported on this subject, one precisely in point has not, I believe, occurred; but one of the most ordinary and common instances in which the principle has been applied in practice is that of a former master giving the character of a discharged servant; and I am not aware that it was ever deemed essential to the protection of such a communication that it should be made to some person interested in the inquiry, _alone_, and not in the presence of a third person. If made with honesty of purpose to a party who has any interest in the inquiry (and that has been very liberally construed, Child _v._ Affleck, 4 Man. & Ryl. 590; 9 B. & C. 403), the simple fact that there has been some casual bystander cannot alter the nature of the transaction. The business of life could not be well carried on if such restraints were imposed upon this and similar communications, and if, on every occasion in which they were made, they were not protected unless strictly private. In this class of communications is, no doubt, comprehended the right of a master _bona fide_ to charge his servant for any supposed misconduct in his service, and to give him admonition and blame; and we think that the simple circumstance of the master exercising that right in the presence of another, does by no means of _necessity_ take away from it the protection which the law would otherwise afford. Where, indeed, an opportunity is _sought_ for making such a charge before third persons, which might have been made in private, it would afford strong evidence of a malicious intention, and thus deprive it of that immunity which the law allows to such a statement, when made with honesty of purpose; but the mere fact of a third person being present does not render the communication absolutely unauthorized, though it may be a circumstance to be left with others, including the style and character of the language used, to the consideration of the jury, who are to determine whether the defendant has acted _bona fide_ in making the charge, or been influenced by malicious motives.[494] In the present case, the defendant stood in such a relation with respect to the plaintiff, though not strictly that of master, as to authorize him to impute blame to him, provided it was done fairly and honestly, for any supposed misconduct in the course of his employment; and we think that the fact, that the imputation was made in Taylor’s presence, does not, _of itself_, render the communication unwarranted and officious, but at most is a circumstance to be left to the consideration of the jury. We agree with the learned judge, that the statement to Taylor, in the plaintiff’s absence, was unauthorized and officious, and therefore not protected, although made in the belief of its truth, if it were, in point of fact, false; but, inasmuch as no damages have been separately given upon this part of the charge alone, to which the fourth count is adapted, we cannot support a general verdict, if the learned judge was wrong in his opinion as to the statement to the plaintiff in Taylor’s presence; and, as we think that at all events it should have been left to the jury whether the defendant acted maliciously or not on that occasion, there must be a new trial.

_Rule absolute for a new trial._[495]

WILLIAMSON _v._ FREER
IN THE COMMON PLEAS, APRIL 20, 1874.
_Reported in Law Reports, 9 Common Pleas, 393._