Beshiers v. Allen

DEVEREUX, C. (after stating the facts as above). It will be noticed that the petition does not set out the alleged slanderous words spoken to Walker nor those spoken to Dickerson. The words spoken to Dickerson, who was deputy sheriff, were spoken after the suit was commenced. This evidence was admissible because one of the causes of action of the petition showed that the alleged slanderous words were spoken to the** sheriff of the county while engaged' in hunting fox the culprits, and this, without proof of notice would be privileged, and therefore not actionable. While repetition of the words used to the sheriff were privileged at’ the time he used them, yet the using of such words to other persons prior to the making of the privileged communication is evidence to go to the jury to show malice. In Newell on Slander and Libel (3d Ed.) sec. 499, p. 480, tire author says: The theory of privilege in connection 'with the law of defamation involves a variety of conditions of some nicety, and also a doctrine not always of easy application to a set of facts; and such being the same in any trial, whether civil or criminal, while the question of libel or not’libel, malice or no malice, are matter of fact for a jury, the question of privilege or no privilege where the circumstances under which the communication was made are not disputed is entirely one of law for the judge, but, where such circumstances are in doubt, the jury must find what ■they were or what the defendant thought they were.” The testimony, threfore, on this qustionj was competent to go to the jury on the question of express malice in the privileged communication made to the sheriff. The communication made to the sheriff under the facts of this case is a qualified privilege, that is, it is a privilege which *337 exists only if the defendant made it in good faith, with an honest belief that it was true, and with the sole intent to aid justice, and with no malice toward the plaintiff, or intent to injure him; but the fact that he made the charges to Dickerson and Y7'allace, all practically the same that he told the sheriff, was evidence to go to the jury to show malice. However, that was the only purpose for which such evidence was admissible, and it could not be considered by the jury for the purpose of enhancing damages. By the sixth and seventh instructions, set out above, the court was expressly requested to charge on this subject, but failed to do so, and this, we think, is error. In Bodwell v. Swan, 3 Pick. (Mass.) 376, the question is discussed as to whether evidence of libelous statements made after the action was commenced was admissible or not, and the court came to the conclusion that it was, but cited with approval the decision of Lord Ellenborough in Russell v. Macquister, 1 Campb. 48, note, in which evidence of this kind was admitted, but it was said that the court should charge the jury not to give damages' for it. In 2 Greenleaf on Evidence (15th Ed.) sec. 418 (4), it is said: “As to the proof of malice or intention: If the words are in themselves actionable, malicious intent in publishing them is an inference of law, and therefore needs no proof, though evidence of express malice may perhaps be shown in proof of damages. But if the circumstances of the speaking and publishing were such as to repel that inference and exclude any liability of the defendant, unless upon proof of actual malice, the plaintiff must furnish such proof. To this end he may give in evidence any language of the defendant, whether oral or written, showing ill will to the plaintiff, and indicative of the temper and disposition with which he made the publication; and this whether such language, were used before or after the publication complained of. But if such collateral evidence consists of matters actionable in itself, the jury must be cautioned not to increase the damages on that account.” *338 This is in point in the case at bar. 'In one cause of action, as set out in the petition, the conversation had with the sheriff charging the plaintiff with the crime of robbing the bank was a qualified, privileged communication, and before the plaintiff could recover he must show express malice. This he could do by showing the repetition of the scandalous matter to other persons, both before and after the suit was commenced; but, under the rule laid down by Mr. Greenleaf, although this evidence is admitted, the jury must be cautioned not to increase the damages on that account. In the case at bar the judge was expressly requested to charge on this subject, but the request was refused, and in his general charge above set out he did not tell the jury for what scandalous language damages may be recovered. It does not require argument to show that the repetition of a scandalous charge to three or four people is more likely to increase the verdict than words spoken to a single person. The same conclusion was reached by the Supreme Court of Kentucky in Letton v. Young, 2 Metc. 562. That was a case somewhat like the present in which other declarations to those set out in the petition were allowed to go to the jury, but the jury were not charged not to consider them in assessing damages, and the court in its opinion say: “We do not wish to be understood as saying that the failure to admonish the jury as to the effect of the letter at the lime of its introduction might not have been cured by an explicit instruction to the same effect at a subsequent stage of the trial, although the warning should have accompanied its admission; but we have no hesitation in saying, that in this case there was no sufficient caution at any time; and, inasmuch as the appellants objected to the letter, and it was only admissible for one purpose, our opinion is that the court erred to their prejudice in not explicitly admonishing the jury at some time before their retirement not to give it any effect whatever in estimating the amount of the damages.” *339 In Chamberlin v. Vance, 51 Cal. 75, in an action for slander, words were repeated after the action was commenced, and the court held that they were admissible to prove enmity with which the alleged slander was spoken, citing Bodwell v. Swan, 3 Pick. (Mass.) 378. The court, however, go on and say: “It would, perhaps, have been the duty of the court, had counsel requested it, to charge the jury that no additional damages could be given for the publication of the words sp.oken after the commencement of the action, as for a publication of a distinct slander, and that they were to be considered only with reference to the motives with which the words declared on were spoken.” In the case under consideration this request was specially made, but refused, and we think that such refusal was reversible error. There are numerous other assignments of error, but, as the case must be reversed on this ground, it is not necessary to consider them. We therefore recommend that the judgment below be reversed and the cause remanded for a new trial. By the Court: It is so ordered.