Rude v. Nass

Cassoday, J. The printed case, like many others, is unnecessarily voluminous. It contains over 300 pages of testimony. It should only “ consist of a sufficient statement of the return ” to intelligently present the question relied upon for a reversal. Sup. Ct. Rule VIII. The principal point upon which the plaintiff seeks a reversal is the portion of the charge relating to privileged communications. After stating the general nature of communications which were absolutely privileged ^nd those which were only privileged conditionally, depending upon the circumstances under which they were made, the trial judge charged the jury as follows: “ I instruct you as a matter of law that, if this letter of the 3d of August, 1886, was written by this defendant believing it to be true, in good faith, without malice, then it was a privileged communication, and this action cannot be maintained. It is the end of the case if you should find that it is a privileged communication under this rule that I have given; and so you will examine the evidence upon that point.” He then calls their attention to the “ vast amount of evidence in the *327 case,” and directs them to consider it all, and determine whether the communication was made “ in good faith, believing it to be true, and without malice.” The verdict determined that question in favor of the defendant, and the evidence is sufficient to support the verdict. Upon the same question the court refused to charge that, “in order to make an article privileged, two things must concur: (1) The party making the charge must make it bona fide, and without malice, and with reference to some subject-matter in which he has cm interest, or in reference to which he has a duty to perform; (2) it must be made to a person homing a corresponding interest and duty. There is nothing disclosed by the evidence in this case which shows that the relation of the defendant to the plaintiff or to Sivesind, to whom the defendant wrote the letter, which would make the occasion of the publishing of the alleged libel privileged.” The important question, therefore, is whether there was error in submitting to the jury the questions of malice, good faith, and belief in the truth of the communication, or in giving the portion of the charged quoted, or in thus refusing to charge as requested. The learned counsel on both sides agree to the rule as stated by Folgee, C. J., and held in New York, “ that it is for the court to determine whether the subject-matter to which, the alleged libel relates, the interest in it of the author of it, or his relations to it, are such as to furnish an excuse; but that the question of good faith, belief in the truth of the statement, and the existence of actual .malice, remain for the jury.” Hamilton v. Eno, 81 N. Y. 122. Under this rule, the question whether the alleged libel was conditionally privileged was, manifestly, a mixed question of law and fact, to be submitted to the jury under the charge of the court. That is what was done in this case. But counsel contend, in effect, that, assuming, as we must, upon the verdict, that the defendant wrote and sent the let *328 ter believing it to be true, in good faith, and without malice, yet the circumstances were not such as to make it privileged. They contend that, in order to be privileged, the defendant should have had an interest in the subject-matter of the letter, or some duty to perform in reference thereto, and also that the person to whom it was addressed should have had a corresponding interest or duty; and they cite decisions of learned courts in support of such contention. Some of those decisions, however, are inconsistent with others made by the same courts. In Noonan v. Orton, 32 Wis. 112, Dixon, C. J., approvingly quotes the language of Shaw, C. J., as follows: “ "Where words imputing misconduct to another are spoken by one having a duty to perform, and the words are spoken in good faith, and in the belief that it comes within the discharge of that duty, or where they are spoken in good faith to those who have an interest in the communication, and a right to know and act upon the facts stated, no presumption of malice arises from the speaking of the words, and therefore no action can be maintained in such cases without proof of express malice.” Bradley v. Heath, 12 Pick. 164. These cases were cited approvingly in M. P. R’y Co. v. Richmond, 73 Tex. 575. This alternative statement only makes it necessary that there be an interest or duty on the part of the person making the communication, or on the part of the person to whom it is made, in order that it be conditionally privileged. There are certainly many cases holding that such communication may be conditionally privileged if made to one having an interest in and a right to know and act upon the facts therein stated. Weatherston v. Hawkins, 1 Term R. 110; Toogood v. Spyring, 1 Cromp. M. & R. 181; Kine v. Sewell, 3 Mees. & W. 297; Robshaw v. Smith, 38 Law T. (N. S.), 423; Waller v. Lock, 45 Law T. (N. S.), 242; Tompson v. Dashwood, L. R 11 Q. B. Div. 43; Atwill v. Mackintosh, 120 Mass. 177; *329 Sunderlin v. Bradstreet, 46 N. Y. 191; Bacon v. M. C. R. Co. 66 Mich. 166. Thus, in Robshaw v. Smith, supra, it was said by Grove, J., speaking for the court: “ The defendant did not act as a volunteer, but was applied to for information. When applied to, he did give such information as he possessed, lie might have refused to give that information. He had no legal duty cast upon him to give any opinion. But he ivas entitled to give his opinion when asked, and, a for-tiori, as it seems to me, to show any letters he had received bearing on the subject. . . . Every one owes it as a duty to his fellow-men to state what he knows about a person, when inquiry is made; otherwise no one Avould be able to discern honest men from dishonest men. It is highly desirable, therefore, that a privilege of this sort should be maintained.” LiNdley, J., was of the same opinion, and said: “ I think it would be a lamentable state of the law, if, when a person asks another for information, that other could not give such information as he possessed without exposing himself to the risk of an action.” Upon a review of the authorities, that case and these expressions Avere fully sanctioned by Jessel, M. R., in Waller v. Lock, supra, avIio Avent still further, and said: “ If the answer is given in the discharge of a moral and social duty, or if the person who gives it believes it to be so, that is enough. It need not even be an answer to an inquiry, but the communication may be a voluntary one. The law is concisely stated by Loed BlaoebubN . . . thus: ‘ Where a person is so situated that it becomes right in the interests of society that he should tell to a third person facts, then, if he bona fide and without malice does tell them, it is a privileged communication.’ It appears to me, that if you ask a question of a person whom you believe to have the means of knowledge about the character of another person with whom you wish to have any dealings whatever, and he *330 answers bona fide, that is a privileged communication. I might illustrate this by the instances .of inquiries being made of a friend or a neighbor about a tradesman, a doctor, or a solicitor. Society could not go on without such inquiries. The whole doctrine of privilege must rest upon the interest and the necessities of society. If every one was open to an action of libel or slander for the answers he might make to such inquiries, it would be very injurious to the interests of society.” The eminence of that late learned master of the rolls, who thus expressed the opinion of the court, and the confusion among some of the adjudications, seem to justify the lengthy quotation made. In view of these authorities, and others which might be cited, it seems to us that the father of the girl who made the complaint upon which the plaintiff had been arrested had an interest in the communication sent by the defendant, and had the right to know and act upon the facts therein stated; and hence, had the letter been written by the defendant in answer to inquiries made by the father personally, it would have been conditionally privileged. The mere fapt that the letter was written by the defendant in answer to inquiries made by another for and in behalf of the father does not take away the privileged character of the communication. This is manifest from some of the authorities cited. We must hold that there was no error in submitting the case to the jury on the theory that the communication was conditionally privileged. The court also, under the alleged justification in the answer, submitted to the jury the question whether all the charges contained in the letter were true, with specific directions to find for the plaintiff if any one of them was false. The verdict, in effect, found them all true, and there appears to be sufficient evidence to support the verdict in that regard. Exception is taken because the court charged the jury as follows: “I think an habitual drunkard means more than *331 being drunk on two or three occasions within a given time,— two or three times within a given number of months; that it means the use of intoxicating liquors to such an extent as to in some manner disqualify a man from pursuing his avocation; but you can perhaps define it as well as the court.” It is claimed that this last clause left the jury to define for themselves the words “ habitual drunkard.” The court had, however, already defined those words sufficiently favorably to the plaintiff, and what was added was merely to indicate that the words were not such as to admit of a precise definition, though well understood by the public. Manifestly the jury were not misled by the charge. We find no material error in the record. By the Court .—The judgment of the circuit court is affirmed.