Streety v. Wood

By the Court, T. R. Strong, J. There can be no doubt, I think, that' the preferring of the charges, in this case, to the lodge, was prima facie privileged. The acts charged were violations of the rules of the order of Odd Fellows, of which both the parties to the action were members. The charges were addressed to a body having power under those rules to receive and investigate them; and if found to be true, apply a remedy; and an equal right to prefer charges appears to have belonged to each member of the order. The case is analogous to that of charges made in a regular course of discipline, between members of the same church, which it is well settled are thus privileged. (Jarvis v. Hatheway, 3 John. 178. O’Donoghue v. McGovern, 23 Wend. 26.) The presenting substantially the same charges to Osborn, a member of the association, for the purpose of procuring his signature, was, I think, equally privileged. (Vanderzee v. McGregor, 12 Wend. 545.) It was assumed by the plaintiff, and held by the justice, at the trial, that the case was one of a prima facie privileged communication, and that it was necessary on that account for the plaintiff to prove express malice in making the charges, to maintain the action. But the justice further ruled, “ that although the defendant had probable cause for preferring the charges, if he was actuated by malice towards the plaintiff, and acted in bad faith in making the publication, the jury would be justified in finding a verdict for the plaintiffand he refused to advise the jury “ that if they found that the defendant had probable cause for presenting the charges, they were bound to find for the defendant, whether he was actuated by malice or not.” This ruling and refusal, in respect to the effect which should be given to probable cause, it is claimed on the part of the defendant, were erroneous; and that is the principal question for decision. [110] In cases of communications addressed to public officers under, our national or state constitution and laws, to prevent appointments of particular individuals to office, or to procure removals from office, or for the redress of grievances, if charges made in them are pertinent, and the officer addressed has power to act in the matter, I regard the doctrine as now firmly established, that they are so far .privileged that to maintain an action for a libel, founded upon them, it must appear that the charges were made both maliciously and without probable cause. The action, though in form for a libel, is in the nature of an action for a malicious prosecution, and requires the same proof in the respects mentioned, to sustain it. (Thorn v. Blanchard, 5 John. 508. Howard v.Thompson, 21 Wend. 319, and cases there cited. Cook v. Hill, 3 Sandf. 341.) It was intimated by Cowen, J. in Howard v. Thompson, decided in 1839, that this doctrine might not be applicable to privileged communications 11 addressed to a man or set of men chosen by a voluntary society, a bishop or presbytery, for example, and having by common consent among the members a power to redress grievances,” and that the cases to which it applies form an “ intermediate class between judicial prosecutions and privileged communications in regard to matters having no immediate connection with the functions of government.” In the case of O’Donoghue v. McGovern, however, decided in 1840, the same learned judge repudiates the idea that such a distinction exists. The plaintiff in that case was a priest of the Roman Catholic church, and the charges complained of were contained in a representation to the Catholic bishop of the diocese in which the plaintiff officiated, relating to the plaintiff’s character and conduct. In delivering the opinion of the court, Cowen, J. after stating “ the extent of the citizen’s privilege in addressing the civil power, recognized and established by law,” says: “ I must be allowed to deny that the law extends any greater measure of protection to a church member, petitioning a spiritual superior. Churches in this country are, in a legal point of view, no more than other societies, voluntarily organized by our citizens, with such gradations of officers and judicatories as may subserve the purposes of [111] moral and religious redress. The law concedes the right of petition and remonstrance to a spiritual superior, when they are presented with a view to such redress. The proper channel being pursued, as the plea under consideration in the case before us shows that it was, I grant that the church member in question is entitled to the same measure of protection, as if he had, when writing the libel set forth in the declaration, been engaged in seeking the removal of an inferior officer at the hands of a superior, created by the constitution or the law. But I deny that he is entitled to more. The declaration charges him with falsehood and malice; with an intent to injure. Let him deny these in his plea; nay, let him plead mere probable cause, and I will allow his plea, if it be not demurred to as amounting to the general issue; or if a want of probable cause do not appear upon his trial, under the latter plea, I will sanction that as a defense.” Again: “ I deny that he is entitled to any greater consideration than the members of any other voluntary society holding the same relations, under a similar organization.” And further: “ The law simply requires that there should not be a want of common honesty in preferring the charge.” In Hastings v. Lusk, in the late court of errors, in this state, decided in 1839, (22 Wend. 410,) the then chancellor says: 11 There are two classes of privileged communications recognized in the law in reference to actions of slander,” &e. “ In one class of cases the law protects the defendant so far as not to impute malice to him from the mere fact of his having spoken words of the plaintiff which .are in themselves actionable, though he may not be able to prove the truth of his allegations. But the plaintiff will be able to sustain his action for slander, if he can satisfy the jury, by other proofs, that there was actual malice on the part of the defendant, and that he uttered the words for the mere purpose of defaming the plaintiff.” Again: “ The presumption in these cases that there was no malice, is not rebutted by the plaintiff’s merely showing that the charge against him was untrue in point of fact; it must be further shown that the defendant either knew or had reason to believe it was untrue, at the time of the speaking of the words complained of.” (Kine v. [112] Sewell, 1 Horne & Hurl. 83; 3 Mees. & Wels. 297, S. C.) Proving that the defendant knew the charge to be false, would unquestionably be evidence of express malice ; and would destroy the defence in this class of cases. The language of Bronson, Ch. J. in Washburn v. Cooke, (3 Denio, 110,) although not quite so broad as that of the chancellor, falls but little short of expressing similar views. He went as far as that case required. [Monroe General Term, March 7, 1853. Selden, T. B. Strong and Johnson, Justices.] I do not feel at liberty to hold that the privilege allowed by law to the communication in the present case was less in extent than the privilege allowed to communications to public officers, as before mentioned. I think it is not, and should not be. I am therefore of opinion that the ruling at the trial in respect to probable cause, and the refusal to charge as requested, were erroneous. Judgment reversed, and a new trial granted. Costs to abide the event.