Bodwell v. Osgood

Wilde J. delivered the opinion of the Court. It can not be doubted that an action for a malicious prosecution might have been maintained upon the facts reported, if the accusation complained of had been made in the regular and ordinary course of justice, and before a tribunal having power to ascertain the truth or falsity of the charge, and to punish the supposed offender. But the school committee, to whom complaint was made, had no such power ; and an action for a malicious prosecution would not lie. If, therefore, this action cannot be maintained, the plaintiff is remediless. We do not, however, apprehend that the law is so defective as to afford no remedy in a case like this ; nor in our opinion has any good reason been assigned, why the present action should not be sustained. As the case was left to the jury, we consider the fact established by the verdict, that the accusation was false and utterly groundless, and that the defendant knew it to be false at the time of publication. It may, therefore, be admitted, that if the defendant had proceeded with honest intentions, believing the accusation to be true, although in fact it was not, he would be entitled to protection ; and that the occasion of the publication would prevent the legal inference of malice. Indeed the doctrine contended for by Emmet, in the case of Thorn v. Blanchard, 5 Johns. R. 508, and [384] sanctioned by a majority of the Court of Errors, may be admitted, in its fullest extent, without impeaching the grounds of the present action. It was admitted, in that case, that the action might have been sustained, if there had been proof of express malice, or want of probable cause. In this case there was such proof, and it was put to the jury to decide whether the publication was malicious or not. And they were instructed to find for the defendant, if they should be of opinion, from the evidence, that he acted with honest intentions, and believed that the charges made in the supposed libel were true. The jury, therefore, must have been brought to the conclusion, that he did not act with such intentions, and that he did not believe the charges to be true ; that he acted malicious y, and not with a view to correct a public grievance, for that he knew no such grievance as the one alleged in the libel existed. We think the evidence sufficient to warrant these conclusions ; and if so, then most certainly there was sufficient evidence of malice, and the defendant’s principal ground of defence utterly fails. The deliberate publication of a calumny, when the publisher knows it to be false, or has no reason to believe it to be true, is conclusive evidence of malice. It is, however, unnecessary to weigh the evidence ; it is sufficient that it was satisfactory to the jury, and proper for their consideration. And it is clear, that m the class of cases in which this ranges itself, the question of malice is exclusively for the jury. It was, therefore, properly left to the jury to say whether, considering all the circumstances of the case, the conduct of the defendant was not malicious.1 So also the instructions to the jury seem to us perfectly correct. It would have been wrong, no doubt, as has been urged by the counsel for the defendant, to consider the not pleading in justification as a cause for enhancing damages. But the direction is not to be so understood. The jury were to [385] decide whether the publication was malicious or not, and the evidence of the defendant’s procuring depositions, &c., before trial, and after all, declining any attempt to prove the truth of the charges, was referred to the jury on the question of malice; and this was clearly correct.1 It has been argued that the jury should have been instructed, that the application to a tribunal competent to redress the supposed grievance, was prima facie evidence that the defendant acted fairly, and that the burden of proof was on the plaintiff to remove this presumption. The judge was not requested thus to instruct the jury. He did, however, instruct them that the burden of proof was on the plaintiff to satisfy them that the libel was malicious, and that if the plaintiff did not prove the malice beyond any reasonable doubt, that doubt should be in favor of the defendant. It was unnecessary to be more particular, and it seems impossible that on this point the jury could have been misled. As to the damages, they are certainly large, perhaps too large, but not so extravagant as to justify the interference of the Court. We do not doubt our power to grant new trials on the ground of excessive damages, m cases of personal torts ; and when they are clearly excessive, and greatly disproportionate to the injury proved, we are bound to interpose.2 But a strong case must be made out ; and this does not appear to us to be such a case, considering the aggravated nature of the charge, and the situation of the • parties. The plaintiff being an unprotected female, having nothing whereon to depend but an unblemished reputation, and the defendant being a man 'f wealth and influence, we cannot say that the damages are clearly exorbitant. Motion for new trial overruled. Footnotes [1] See Remington v. Congdon, 2 Pick. (2nd ed.) 315, n. 1; 2 Stark. Evid (5th Amer. ed.) 467, note; Starkie on Slander, (Amer. ed. 1832,) 140, 141; Robinson v. May, 2 Smith, 3; Blake v. Pilford, 1 Moody & Rob. 198; Knight v. Gibbs, 3 Neville & Mann. 467; S. C. 1 Adolph. & Ellis, 43; Toogood v. Spyring, 1 Crompt., Mees. & Roscoe, 181; S. C. 4 Tyrwh. 582. [1] See Thomas v. Croswell, 7 Johns. R. 264; King v. Root, 4 Wendell, 113. An unsuccessful attempt to justify the truth of the words spoken, in a civil action, is evidence of malice. Root v. King, 7 Cowen, 613; Hix v Drury, 5 Pick. 296; Jackson v. Stetson, 15 Mass. R. 48. So it is said, in Dewit v. Greenfield, 5 Ohio R. 225. It is now, however, provided by the Revised Statutes in Massachusetts, that a plea of justification by reason of the truth of the words spoken or published, though not supported by the evidence, shall not in any case be of itself proof of the malice alleged in the declaration. Revised Stat. c. 100, § 19. [2] Clark v. Binney, 2 Pick. (2nd ed.) 121, n. (1); Starkie on Slander, (Amer ed. 1832,) 301, n. (149); Davis v. Davis, 2 Nott &M'Cord, 81; Riley v. Nugent, 1 Marshall, (Ken.) 431; Orpwood v. Barkes, 12 Moore, 492; S. C. 4 Bingh. 261. A new trial was granted where $5000 had been given in an action for slander, the damages appearing under the circumstances to be excessive Nettles v. Harrison, 2 M'Cord, 230.