Gassett v. Gilbert

Bigelow, J. There can be no doubt that the publication of the notice or “caution to the public,” set out in the declaration, had a direct tendency to hold the plaintiff up to public reproach [97] and disgrace; and was therefore actionable, unless it falls within the class of communications or statements usually termed privileged, that is, authorized by law, notwithstanding they may injuriously affect private character. The law regards the publication of all defamatory matter, which is false in fact, as malicious, and affords to the party injured, a remedy in damages therefor. This is the general rule. But there are cases which constitute an exception to it. These are, when the cause or occasion of the publication is such as to render it proper and necessary for common convenience and the general welfare of society that the party making it should be protected from liability. In such cases, the occasion rebuts the inference of malice, which the law would otherwise draw from an unauthorized publication, and renders it necessary for the party injured to show actual malice, or, as it is sometimes called, malice in fact, as an essential element in support of his action. The precise limits within which the publication of defamatory matter is allowed, as being privileged by the occasion, are best defined by Baron Parke, in the leading case of Toogood v. Spyring, 1 Cr. M. & R. 193, and 4 Tyrwh. 595. It is there laid down, that a publication “ 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,” comes within the class of privileged or authorized communications. A party cannot be held responsible for a statement or publication tending to disparage private character, if it is called for by the ordinary exigencies of social duty, or is necessary and proper to enable him to protect his own interest or that of another, provided it is made in good faith, and without a wilful design to defame. This general statement of the doctrine on this point seems to be consonant with sound principle, and is supported by numerous authorities. Bul. N. P. 8. Hargrave v. Le Breton, 4 Bur. 2425. Bromage v. Prosser, 4 B. & C. 247. Pattison v. Jones, 8 B. & C. 578. Child v. Affleck, 9 B. & C. 403. Somerville v. Hawkins, 10 C. B. 583. 1 Stark. Sland. 292. The question, whether in a particular case a publication is to [98] be deemed privileged, that is, whether the situation of the party making it and the circumstances attending it were such as to rebut the legal inference of malice, is a question of law, to be determined by the court in the first instance. Coxhead v. Richards, 2 C. B. 569. Taylor v. Hawkins, 16 Ad. & El. N. R. 308. But, in deciding this question, the conditions on which it is to be held to be privileged must necessarily be assumed; that is, it must be taken for granted that the publication was believed by the party who made it to be true, and that it was made bona fide; because, if these elements are found to be wanting, then a jury would be authorized to infer malice. The sole duty of the court therefore, in such cases, is to determine whether the occasion, in the absence of actual malice, would justify the publication. If so, then it is incumbent on the plaintiff to prove the existence of malice, in order to sustain his action; and this must be shown to the satisfaction of the jury, whose exclusive province it is to pass upon the question. But it is not necessary to prove it by extrinsic evidence. It may be inferred from the relation of the parties, the circumstances attending the publication, and even from the terms of the publication itself. Wright v. Woodgate, 2 Cr. M. & R. 573, and Tyrwh. & Gr. 12. By the application of these well settled principles, the questions raised in the present case can be satisfactorily determined. It appears that the defendants were the directors of a corporation called the Female Medical Education Society, established for the purpose of educating females in the science of medicine ; that, for the purpose of raising funds in aid of the objects contemplated by their act of incorporation, they bad resorted to the method of obtaining subscriptions from the public at large in various towns of this commonwealth, and that they had originally employed the plaintiff as an agent to obtain and collect such subscriptions. It further appears that the plaintiff ceased to be the agent of the corporation in December 1850, and her authority to receive subscriptions and collect money in their behalf was then revoked. There can be no doubt that it was the duty of the defendants, as directors of the corporation, to look after its prudential and [99] financial concerns, and to take all proper measures to see that the money raised by subscription, in aid of the institution under their charge, was collected and appropriated according to the intention of those from whom it was obtained. If they believed that the plaintiff, after her authority as such agent- had ceased, was falsely representing herself as still authorized to collect subscriptions in behalf of the corporation, and was thereby wrongfully obtaining money from the public, they were justified in publishing a notice, couched in such language as was necessary and proper to put persons on their guard against her unauthorized representations, and to prevent her from receiving money under the false pretence that it was collected for the use and benefit of the corporation. Their private interest and their duty to the public alike required that such notice should be given, if they believed the facts stated in it to be true, and acted honestly and in good faith in making the publication. To this extent, we think that the occasion justified the defendants. But it does not follow that there was no evidence in the case upon which it was proper for the jury to pass, as showing the existence of actual malice on the part of the defendants. They cannot be justified if they have included in their notice any statements or language of a defamatory nature, not warranted by the occasion which called forth the publication. The privilege must be limited by the exigency; and if the defendants, by the terms of the notice published by them, exceeded the just limits which were necessary and proper to accomplish the legitimate purpose of protecting the corporation and the public from the unauthorized acts of the plaintiff, it will be evidence of malice, proper to be weighed by the jury. So too the question of good faith on the part of the defendants, and their honest belief in the truth of the statements put forth by them, are matters of fact which are to be .determined exclusively by the jury. Although it is not necessary for the defendants to prove the truth of the statements contained in the notice, in order to justify the publication, yet proof of their falsity is admissible on the part of the plaintiff to show that the defendants did not act on an honest belief in their truth. We are therefore of opin’ [100] ion that the case must be submitted to the jury to determine the questions, whether, under all the circumstances adduced in evidence, the defendants have not exceeded the just bounds of their privilege, and been actuated, not by an honest purpose to protect the interests of the corporation and guard the public against imposition, but by a malicious design to defame the plaintiff’s character. Case to stand for trial. A trial was had at March term 1858, and resulted in a verdict for the defendants, upon which judgment was rendered.