Alabama & Vicksburg Railway Co. v. Brooks

Cooper, J., delivered the opinion of the court. If it be conceded that the demurrer to the second plea should have been overruled, no reversible error would be shown, since, under the general issue, and under the third and fourth pleas, the defendant had advantage of all matters of defense set up in the second plea. In truth, the whole controversy was upon the facts set up by that plea, and which, upon the demurrer being sustained, were substantially restated in pleas three and four. The defenses introduced were that Bond had no authority, as agent of the defendant, to write, the letter, and if he had, that, under the circumstances, it was not a libel. The extent ■of the agency of Bond was fairly submitted,to the jury, and it cannot be said that the verdict, by which.it is found that he was the representative of the defendant in relation to the business in which the letter was written, is not supported by the evidence. Bond himself was examined as a witness, and did not deny his authority to act for the company. He professed by acting to have authority. Other executive officers of the companjr recognized his right so to act, and ample other evidence appears of record to show that his act was within the scope of his duty. The court, by instructions to the jury, gave to the defendant the benefit of its defense that the letter alleged to be libelous was in reply to a communication from the plaintiff’s attorneys. It told the jury that the circumstances created a qualified privilege, and that the defendant could only be liable upon proof of malice, or the absence of honest belief in the truth of the statements'contained in the letter; in other words, that the defendant was not liable if its servant, in making reply to the letter of the attorneys, kept himself [185] within the privilege of the occasion, but was liable if he took advantage of the opportunity afforded by the occasion to' maliciously libel him, or to write concerning him libelous matter which he did not believe to be true. That Bond intended by his letter to charge the plaintiff with larceny of the lost baggage, or with having lawfully taken it away and then to have conceived the purpose of fraudulently recovering its value from the defendant by reason of his yet having its check in his possession, was admitted by him while testifying. It is true he affirmed that he honestly believed these facts to be true, hut whether he did or did not so believe was a question for the determination of the jury, and his assertion is not conclusive of what the motive was. Starkie on Evidence, § 89; Elmer v. Fessenden, 151 Mass., 359. One to whom application is made for information may, within the limits thereof, write or speak words which, under other circumstances would subject him to suit for libel or slander, but “ the scope of the defamatory matter must not exceed the exigency of the occasion.” Cook on Defamation, 35. Nor can he take license from the occasion to gratify his malice, or to state as facts libelous matter which he does not believe to be true. The exemption from responsibility for libel in privileged communications are of two classes : First, those of absolute privilege, in which no action lies, though the motive be malicious, of which class are included legislative and judicial proceedings. 13 Am. & Eng. Ency. L., 406; Verner v. Verner, 64 Miss., 321. Second, qualified privilege for libel, in which no inference of malice arises from the mere fact of the prejudicial statement, but the plaintiff must prove malice in fact. “ The term privileged, as applied to a communication alleged to be libelous, means simply that the circumstances under which it was made are such as to repel the legal inference of malice, and to throw upon the plaintiff the burden of offering some evidence of its existence beyond the mere falsity of the charge.” [186] Lewis v. Chapman, 16 N. Y., 369; Wright v. Woodgate, 2 C. M. & R., 573; Toogood v. Spyring, 1 C. M. & R., 181; Delaney v. Jones, 1 Esp., 193, 4 C. P.; Laughton v. The Bishop, L. R., 4 C. P., 504; Spill v. Maule, L. R., 4 Exch., 232; Clark v. Molyneux, L. R., 3 Q. B. Div., 237. The plaintiff, recognizing the occasion of the publication as privileged, assumed the burden of establishing the malice of the defendant’s superintendent, and by the verdict of the jury shows that he has supported his contention in that behalf. Ye are not prepared to say that the verdict is not correct. The publication was complete when the libelous letter was received and read by Messrs. Dabney & McCabe, the plaintiff’s attorneys. This necessarily follows from the establishment of the fact (settled by the verdict) that the defamatory statement was not covered by the privilege of the communication. The letter from the attorneys called for any lawful reply from the officers of the defendant, but it did not invite any malicious defamation of their client; and the defendant’s superintendent, by exceeding the privilege, deprived his principal of any defense it might have had if he had kept within it. Affirmed.