Moore ex rel. Moore v. Butler

Nesmith, J. This was case brought by plaintiff, claiming damages for slanderous words spoken by the wife of the defendant, who is alleged to have made the charge against the said Alice of stealing defendant’s sheet, and having it made into a skirt for her own use. The words complained of were alleged to have been spoken at three different times. The first words were spoken by Mrs. Butler in presence of Mrs. Sarah Moore, the mother of Alice, and notin the hearing of any other person. The court held that, under the circumstances, this communication was privileged, and not actionable. This ruling appears to have been correct. Van Deusen v. Sheffield, 13 Gray 304. The second conversation, in point of time, was between Alice and Mrs. Butler, and no one was present. The court ruled that the words then and there spoken were not actionable, though the charge may have been maliciously made, if no one .but Alice heard them; but, if the — 166 — words were uttered with malice, and were heard by Mrs. Butler’s children, who were in an adjoining room at the time, the words would be actionable, even though Mrs. Butler did not know at the time that what she said was overheard by any one, or intended they should be, and left the fact as to whether any one but Alice heard the words to the jury. To this ruling the defendants excepted. To maintain this action, malice must be alleged and proved; and it may be either express or implied, according to the facts of the case. In communications not privileged, imputing actionable charges, or false charges actionable in themselves, malice is presumed from the speaking of the words, and no additional evidence is needed, except as affecting the amount of damages. Or, in other words, where the words spoken are in themselves actionable, imputing crime to the plaintiff and proved false, the malicious intent in publishing them is an inference of law, and requires no proof.* 2 Starkie on Slander 47 ; 2 Greenl. Ev. sec. 418 ; Smart v. Blanchard, 42 N. H. 137; Gassett v. Gilbert, 6 Gray 94. The amount of the instruction by the court to the jury would seem to be, that Alice would receive no injury to her reputation from the words or charge of Mrs. Butler, however malicious such words might be, if they were spoken privately and were not heard by others ; but if spoken maliciously, and they were actually heard by others, then such words would be actionable. We see no objection to the charge of the court, because it left fairly to the jury to find whether a malicious slander affecting the plaintiff’s character had been published under such circumstances as to give others an opportunity to hear it, and of course to circulate it to plaintiff’s prejudice, or whether the words were actually spoken privately and with an honest intent, and without injury to plaintiffs. 2 Greenl. Ev. sec. 18. Was the publication of the words of Mrs. Butler spoken in presence of Mrs. Crosby, Mrs. Moore and Mr. Butler privileged? Or was the judge correct in ruling the words there spoken were not privileged? The general .rule is, that a party cannot be held liable 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 or proper to enable him to protect his own interest, or that of another, and provided it is made in good faith and without a wilful design to defame. Justice Bigelow, in Gassett v. Gilbert, 6 Gray 94. Baron Parke lays down a similar rule in Toogood v. Spryling, 1 Crompton, Meeson & Ii. in the following language : "A publication fairly made by a person, in the discharge of some public or private duty, whether legal or moral, comes within the class of privileged or authorized communications. The communication, being made in confidence and kindness, and the defendant not being actuated by any malicious motive, becomes clearly privileged.” Buller, N. P. 8; 2 Greenl. Ev. sec. 421, and cases in note. In Taylor v. Hawkins, 16 Ad. & E. 308, Lord Campbell briefly states the rule to be: "If the occasion be such as repels the presumption of malice, then the communication is privileged.” In such cases the plaintiff is called upon to show such declarations and facts as are more consistent with the existence of malice than with its non-existence, or, in — 167 — other words, to show probable malice. To ascertain malice it is not necessary always to resort to extrinsic evidence. Malice may be inferred from the relation of the parties, the circumstances attending the conversation, and even from the terms of the communication itself. Wright v. Woodgate, 2 Crom., Meeson & R. 573. The judge has a right, under the circumstances of each case, to determine that the occasion was, or was not, such as to rebut the presumption or inference of malice. Baron Parlce, in Bromage v. Prosser, 4 B. & C. 247; (10 C. L. 321;) Gathercole v. Miall, 15 M. & W. 328. Whether the publication be bona fide is a question of law for the judge; whether bona fides existed in the defendant’s statement is a question of fact for the jury. Judge Bay ley’s rule in the same caséis, that the intention with which the words were spoken was for the jury. Since the Fox Act it appears to be the more common practice, where actual doubt exists upon the question of malice in the defendant, to submit the whole matter to the jury. They will decide whether the defendant’s statements, under the circumstances, were made honestly, from proper motives, and for a proper purpose, or justifiable ends. Fox Act, 32 Geo. 3, ch. 60; Campbell v. Spottiswood, 3 B. & Smith 769; Somerville v. Hawkins, 10 C. B. 589; Trounlan v. Boodle, 3 Ad. & Ellis 5 N. R. 71; Blackburn v. Blackburn, 4 Bing. 395; Fairman v. Ives, 5 Barn. & Ald. 646; Blagg v. Start, 10 Ad. & E. 899; Severance v. Hilton, 32 N. H. 289; Symonds v. Carter, 22 N. H. 458; Smart v. Blanchard, 42 N. H. 137; Cooper v. Stone, 24 Wend. 442; 1 Starkie on Slander, 454; Goodrich v. Davis, 11 Met. 473; Miller v. Miller, 8 Johns. 74. In 2 Greenleaf, sec. 417, the doctrine is asserted that the meaning of the defendant is a question of fact, to be found by the jury, and may be proved by the testimony of any persons, conversant with the parties and circumstances; and from the nature of the case, the witnesses must be sometimes permitted to some extent to state their opinions, conclusions and belief, 1 'aving the grounds of them to be inquired into on cross-examination. So, if the words are ambiguous, as they might be here, but if the hearers understood them in an actionable sense, this is sufficient, for it is this which caused the damage. Oldham v. Peake, 2 W. Black. 959; Cooper’s Reports, 275; Roberts v. Campden, 9 East 93; Van Vechten v. Hopkins, 5 Johns. 211; Blagg v. Start, ante. Proof that defendant is aware of the falsity of the charge is sufficient evidence of malice. 2 Starkie on Slander, 52. In determining whether the publication made by Mrs. Butler in the presence of Mrs. Crosby was privileged or not, the court would naturally look at the evidence derived from the fact that Mrs. Butler had already had one interview with Alice, and before the words were spoken on this occasion she had two conversations with Mrs. Moore, the mother of Alice, wherein it may be presumed that Mrs. Moore had endeavored to impress upon Mrs. B. the knowledge of the fact that the skirt of Alice had been manufactured by herself, from one of her own sheets, and frota the same web of cloth with two other sheets then in the possession of Mrs. Moore; one of which was shown to Mrs. Butler, on — 168 — that day, she having brought it from her own house for that purpose. Admitting the parties to be relatives, and entitled to all the inferences and presumptions arising out of such confidential relations, still the privilege of the defendant must be limited by the exigencies of the case. If, therefore, the defendant, by her language and conduct, exceeded the just limits which were necessary and proper to accomplish her legitimate purpose, in order to protect herself, and obtain or defend her rights, so far as the plaintiff was concerned, such conduct would be evidence of malice proper for the jury to weigh. The question of good faith on her part, and her honest belief in the truth of the statements put forth by herself, become material matters to be determined by the jury, and to be weighed with the explanations of Mrs. Moore, and all the other, evidence in the case. The case Pattison v. Jones, 8 Barn. & C. 580, illustrates the principle at issue here. Pattison, the plaintiff, had been the servant of the defendant Jones; Jones having discharged him, and hearing that he was about to be engaged by Mr. Mornay, wrote voluntarily to Mornay a letter, and informed him that he had discharged Pattison for misconduct. Mornay, in answer, desired further information. Jones then wrote a second letter to Mornay, stating the grounds on which he had discharged plaintiff. In an action by plaintiff against Jones for the libel contained in the second letter, it was held that, assuming the letter to be a privileged communication, it was properly left to the jury to consider whether the second letter was written by the defendant, bona fide, or with an intention to injure the servant. So, it will be seen, that if the court had held iri this, instance the communication to be privileged, it still would, have been a proper matter for inquiry by the jury to find good faith or malice in the defendant. We think, therefore, the ruling of the judge who tried this case on this point was correct, and that the exception should be overruled. Grecnleaf says, to enable the plaintiff to have the question of malice submitted to the jury,-it is not essential that the evidence should be such as necessarily leads to the conclusion that malice existed, or that it should be inconsistent with the non-existence of malice, but it is necessary that the evidence should raise a probability of malice, and be more consistent with its existence than with its non-existence.; the main question being in the case whether the occasion repels the presumption of malice; or whether the words spoken were confidential communications, made in the ordinary course of lawful business from good motives, and justifiable ends. Confidential communications, made in the usual course of business, or of domestic or friendly intercourse, should be viewed liberally by juries, and unless they see clearly that there was a malicious intention of defaming the plaintiff, they ought.to find for the defendant. 2 Greenleaf, 421, and notes. But in all cases where the occasion itself .affords prima ybcie evidence to repel the inference of malice, the; plaintiff may rebut the defence by showing that the object of the defendant, was .malignant, and that the occasion was laid hold of as a mere color or excuse for gratifying private malice with impunity. 2 Greenl. Ev. sec. ,422; .1. StarkieEv. 464, &c. — 169 — Admitting, then, that the pai’ties, as relatives, had confidential interviews in relation to matters of deep interest to both, and that it was entirely fit and proper to seek and make explanations in relation to the subject matter of the difficulty between them, and that they had a right to have a confidential friend present to hear what might be said; and that, therefore, these occasions or interviews, in themselves, afforded prima facie evidence sufficient to repel the inference of malice, yet we think it was proper for the court to refer to the jury all the evidence in the case arising out of all the several different occasions or interviews, so.that they might determine whether the defendant’s conduct under all the circumstances was justifiable or malignant, or whether the occasion was laid hold of as a mere color, pretence, or excuse for gratifying her private spleen or malice against the plaintiff. If the imputations made against the plaintiff’s character were false, the defendant had no right to make them, though she might believe in their truth. Such belief of the defendant is no answer to the action. Campbell v. Spottiswood, 3 B. & Smith 769; Smart v. Blanchard, ante. Where words imputing misconduct to another are spoken by one having a duty to perform, and the words are spoken in good faith, and in the belief that it comes within the discharge of that duty, or where they are spoken in good faith to those who have an interest in the communication, and a right to know, and act upon, the facts stated, no presumption of malice arises from the speaking of the words; and, therefore, no action can be maintained in such cases without proof of express malice. If the occasion is used merely as a means of enabling the party uttering the slander to indulge his malice, and not in good faith to perform a duty, or make a communication useful and beneficial to others, then the occasion will furnish no excuse. Bradley v. Heath, 12 Pick. 163. Under the evidence in this case the court, having on their part declined to declare words spoken by defendant privileged, still referred the question properly to the jury, to find whether they were spoken maliciously or in good faith by the defendants. It seems to us to be the province of the jury to find the existence of malice or good faith in the defendants at the time the words were spoken, and if bad, then the appropriate damages resulting therefrom. If the words are in themselves actionable, and the slanders are several and independent, it is sufficient to prove as many of them as constitute any one of the slanderous accusations. 2 East 434. It has been held sufficient to prove the substance of the words spoken, and to show the sense and manner of speaking them. Additions and omissions not affecting the sense furnish no substantial variance. If the words are ambiguous,*and the hearer understood them in an actionable sense, it is sufficient, for it is this which caused the damage. Joannes v. Bennett, 5 Allen 169; 2 Greenleaf's Ev. sec. 417; Merrill v. Peaslee, 17 N. H. 540; Bassett v. Spofford, 11 N. H. 127; Smart v. Blanchard, ante; Whitney v. Smith, 13 Pick. 374; Miller v. Miller, 8 Johns. 74. The statement of Mrs. Crosby indicates clearly the meaning of the language of Mrs. Butler, as understood by her at their interview. She understood the words to be spoken in an action — 170 — able sense. "We are inclined to think the words which were actionable in themselves were substantially proved, and that plaintiff has brought herself within the rule on this subject. Where the words are actionable in themselves as here, and false, a malicious intent in publishing them is an inference of law, and therefore needs no proof. 2 Starkie on Slander, 47 ; 2 Greenl. Ev. sec. 418. Generally, the admissions of a guardian, or of an executor or administrator, made before he was clothed with that trust, or of a prochein amy, made before the commencement of the suit, cannot be received either against the ward or infant in the one case, or against himself, as the representative of heirs, devisees and creditors in the other, though it may bind the person himself, v’hen he is afterwards a party suo jure in another action. 1 Greenl. Ev. sec. 179, and cases in note. Whatever statements were made by the next friend, Mrs. Moore, were made prior to the commencement of the action, and therefore come within the prohibition of this rule. Mrs. Butler could not be a witness in this case, being under coverture, and interested as a party. Young v. Gilman, 46 N. H. 484, and cases cited; Smith & Wife v. Cornish, not reported. The several questions raised upon the evidence and pleadings of the defendant, bearing on the question of justification, accord with the doctrine of this court in Pallet v. Sargent, 86 N. H. 500, andaré the same in principle. Judgment on the verdict.