Trimble v. Morrish

Carpenter, J. (after stating, the facts). The important question raised in this court is that above indicated, viz., Was defendant entitled to a directed verdict upon the ground that the communication was privileged ? In disposing of this question we shall assume, and the briefs of counsel assume, that the testimony of Dr. Rogers, as above stated, is true. In the law of slander there are two classes of privileged communications. There are communications which are absolutely privileged; and there are communications which have a qualified privilege. A communication absolutely privileged — as, for instance, words spoken by a judge in his judicial capacity in a court of justice — is not actionable, even though spoken maliciously. Where the privilege is qualified, the communication is not actionable if made in good faith. It is actionable if made maliciously; that is, with actual malice. It is not claimed that the communication in question is absolutely privileged. It is claimed that it is qualifiedly so. Says Mr. Justice Champlin, speaking for this court in Bacon v. Railroad Co., 66 Mich. 170: “ Qualified privilege * * * extends to all communications made bona fide, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty. And the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation.” Within this rule defendant had a qualified privilege to make the communication in question. He had an interest in the business of Dr. Rogers. He had become possessed of information which affected that business. It [628] was clearly his duty to communicate it to the doctor. It follows that, in making this communication, he committed no actionable wrong, unless he exceeded the limits of his privilege — unless he acted maliciously. Is there evidence that he acted maliciously ? Plaintiff insists that there is. Her counsel say that malice is to be inferred from the falsity of the statement. The contrary is the rule. “The falsity of the charge alone will not establish malice so as to authorize a recovery, if the charge be privileged, and only becomes sufficient when coupled with evidence tending to show that plaintiff made the charges knowing them to be false, or with other evidence tending to show malice.” 25 Cyc. p. 524. Said this court in Edwards v. Chandler, 14 Mich. 471: “Where a communication is privileged, the plaintiff cannot recover without proving affirmatively, not only the falsehood of its contents, but also that it was published with express malice.” See, also, Konkle v. Haven, 140 Mich. 472. It is said that malice may be inferred because defendant declined to name his informant. No authorities are cited in support of this contention, and it does not appear to us to be sound. Defendant was told that, if he would name his informant, he would not be troubled. He declined to do this, saying: “ The story was told to me in confidence, and I do not desire to implicate any other person in it.” This is the precise course that a high-minded person would have taken. He would have taken that course, not because he was actuated by a desire to save a wanton wrongdoer, but from considerations of true manliness. Only a despicable character would have availed himself of the privilege of escaping responsibility by exposing another to the danger which threatened him. Surely, because one does just what he ought to do, it should not be said that his conduct furnishes evidence of malice. [629] Plaintiff also insists that malice may be inferred from the words of the privileged communication. He relies upon the following statement in the opinion of Bacon v. Railroad Co., supra: “ The jury may find the existence of actual malice froi the language of the communication itself as well as froi extrinsic evidence ” — citing cases. This does not , aa ^gawnant of plaintiff’s com sel seems to assume; that the inference of malice ca always 'bellrawn from the language of a privileged con “rntrnicatliSñ" xno such proposition was before the Ar,”r ^WlhN& was'meant was this: That when a privileged con munication contains on its face evidence of.jnalice^thi " — ffvTaence may be used to prove malice. This is mac cfeSl* by bHe application of the principle in that case, an by the- authorities cited in its support. Respecting this. point, the law is correctly stated in the following quotation from the opinion of the supreme court of Pennsylvania in Mulderig v. Wilkes-Barre Times, 215 Pa. 474: “If there is that in the publication which furnishes a basis for reasonable inference that malice was back of it, the burden remains with the party charged to establish, either its truth, or the probable ground for believing it true. When such is not the case, there must be some evidence beyond the mere fact of publication; but there is no requirement as to what the form of evidence shall be. It may be intrinsic, from the style and tone of the article.” It is not contended that the communication in question contained on its face any evidence of malice. It clearl did not. We conclude, therefore, that defendant had right to a directed verdict, upon the ground that the con munication was privileged. No other complaint demand consideration. Judgment reversed, and a new trial ordered. Grant, O. J., and Blair, Montgomery, and McAlyay, JJ., concurred.