Krebs v. Oliver

Bigelow, J. We cannot doubt that the words alleged in the declaration are actionable. It is not necessary that the language used, in order to be slanderous, should be so spoken, as, if true, to expose the person concerning whom it is uttered to a criminal prosecution. That is one of the tests by which to determine whether it constitutes a good cause of action, but it is not the only one. The other is that it imputes to a person a species of misconduct to which the law attaches a criminal punishment, and that thereby he is subjected to obloquy and social degradation and disrepute. The imputation of crime is essential as a test whether the words used do amount to legal slander; but it does not take away their actionable qualities, that they are so spoken as to indicate that the party has suffered the penalty of the law or is no longer exposed to danger of punishment. In Van Ankin v. Westfall, 14 Johns. 234, the court say, “ the right of the plaintiff to sustain the action does not depend upon the question whether he was liable to be prosecuted and punished for the crime charged against him.” And in a more recent case, where the words spoken were “ He is a returned convict,” it was held that they were actionable, Lord Denman saying, " They import, to be sure, that the punishment has been suffered, but the- obloquy remains.” Fowler v. Dowdney, 2 M. & Rob. 119. See also Carpenter v. Tarrcmt, Cas. temp. Hardwicke, 339 ; Gainford v. Take, Cro. Jac. 536 ; Boston v. Tatam, Cro. Jac. 623 ; Cuddington v. Wilkins, Hob. 81; Smith v. Stewart, 5 Barr, 372 ; Shipp v. Mc Craw, 3 Murphy, 463. It would have been more proper for the court to have given a construction to the words charged, and not to have submitted [243] any question concerning their meaning to the jury; but as the jury have found, as matter of fact, that the words were intended by the defendant to convey the same meaning as their legal interpretation imports, he is not aggrieved by the refusal of the court to give the instruction for which he asked. Ricker v. Cutter, 8 Gray, 248. We think it equally clear that the words spoken cannot be regarded as a privileged communication or justified by the occasion on which they were uttered. It does not appear that the defendant in speaking them acted either for the protection of any interest of his own, or in the discharge of any duty, social, moral or legal. The person whom the plaintiff was about to marry was neither dependent on the defendant nor connected with him by the ties of consanguinity or otherwise. No inquiry was made of him by her or her parents or near relatives concerning the character of the plaintiff. He was strictly a volunteer in making the communication. A mere friendly acquaintance or regard does not impose a duty of communicating charges of a defamatory character concerning a third person, although they may be told to one who has a strong interest in knowing them. The duty of refraining from the utterance of slanderous words, without knowing or ascertaining their truth, far outweighs any claim of mere friendship. Indeed it would be difficult to conceive of a case in which a party could not shelter himself within the protection of his privilege, if the rule should be established that one having no interest of his own to protect, without inquiry or application by one who might have such interest, could be allowed to utter defamatory words, on the ground that he held the relation of a friend towards the person to whom he communicated the slander. We know of no rule which holds such communications to be privileged by the occasion. Gassett v. Gilbert, 6 Gray, 94. Harrison v. Bush, 5 El. & Bl. 348. The instructions which the defendant requested on this part of the case were therefore properly refused. Exceptions overruled