Karger v. Rich

PihNey, J. It is contended on behalf of the appellant that, upon the entire record, judgment should have been given in his favor, and that therefore the order granting a new trial is erroneous. 1. It is claimed that the words spoken are not actionable; that they do not, in their natural and obvious sense, impute a crime to the plaintiff, but negligence only. It is not material to determine whether the words spoken, independent of the circumstances and occasion of speaking them, are actionable per se. Whether they are actionable or not must be decided in the light of the facts alleged in the complaint by way of inducement (Filber v. Dautermann, 28 Wis. 134; Weil v. Schmidt, 28 Wis. 137); and, in the absence of any bill of exceptions, we cannot but presume that the evidence before the court when the order was made sustained these allegations. The words in question clearly impute to the plaintiff the crime of embezzlement, when taken in connection with the matter set up by way of inducement, which is a statement of the matter out of which the charge arose (Taverner v. Little, 5 Bing. N. C. 678), used to make the charge intelligible. The charge made against the plaintiff is substantially equivalent to saying: “ Tou, as my servant, [181] have been intrusted with the nine postage stamps in question, and you bave fraudulently concealed and embezzled them. You have them, and if you do not give them to me I will have you imprisoned for your crime.” This objection cannot, therefore, be allowed. 2. In view of the finding that the words were not spoken in the proper place cmd manner, the claim that thé words spoken were privileged, if otherwise well founded, cannot be maintained. The effect of this finding is obviously to impute to or establish against the defendant express malice in speaking the words in question. The proper meaning of a privileged statement or communication is .that the occasion of making it legally rebuts the prima facie inference of malice m law, arising from the speaking of words otherwise slanderous, and puts the burden on the plaintiff of, proving express malice, i. e., that the defendant was actuated by motives of spite or ill will, or was guilty of culpable recklessness or negligence, such as speaking the words in an improper place for that purpose,— one calculated to give undue publicity to the statement,— or in an improper manner, as violently or vindictively. Townsh. Sland. & L. § 399; Gilpin v. Fowler, 9 Exch. 615; Briggs v. Garrett, 111 Pa. St. 404. In view of the finding that the words in question were not spoken in a proper place or proper manner, it is impossible to say that they were privileged. 3. But it is contended that the effect of the finding of the jury, already noticed, is controlled by the effect of the fifth finding, in substance that the defendant did not speak the words maliciously or with intent to injure the plaintiff. These findings are special findings, and we know of no rule by which we may discredit either, and allow the others a controlling influence. If the fourth finding is allowed to prevail, the plaintiff would be entitled to judgment; and if, instead, the fifth finding prevails over, the fourth, still the plaintiff would be entitled to compensatory damages, at least. It cannot be known what sum the jury allowed as [182] compensatory damages, or what, in fact, as punitory damages. Punitory damages can be given only in cases where express malice is shown. Langton v. Hagerty, 35 Wis. 150. Malice in law is not necessarily inconsistent with an honest or even a laudable purpose. 'If one makes a false accusation against another, without knowledge of its falsity or without sufficient cause or excuse, it is legally malicious. Jellison v. Goodwin, 43 Me. 288. Evidently the fourth and fifth findings are inconsistent, and the court below set aside the verdict for that reason, and ordered a new trial, in view of the character of the charge given to the jury, which probably stated to them the law of compensatory damages as affected by express malice. Inasmuch, however, as the evidence given on the trial and the charge of the court are not embraced in the, bill of exceptions, so that they can be noticed by this court, we cannot say that the order appealed from is erroneous. The presumption is in favor of the correctness of the order, and we must assume that there was sufficient cause in the evidence and instructions of the court, as applicable thereto, to justify the court below in granting a new trial. Error must be shown affirmatively. It cannot be presumed. By the Court.— The order of the superior court of Milwaukee county, appealed from, is affirmed.