Fresh v. Cutter

McSherry, J., delivered the opinion of the Court. Jacob Cutter- sued George H.. Fresh for defamatory words alleged to have been spoken by the latter of and concerning the former. Cutter had at one time heen an employe of Fresh, hut after he ceased to occupy that relation and had entered, or was about to enter, the service of one Allen, Fresh, of his own accord and without solicitation or inquiry on the part of Allen, said to Allen “he (meaning the plaintiff) stole as good as two hundred dollars from me and I want the money.” These are the alleged defamatory words.

It was shown by the evidence that several persons had communicated information to Fresh which induced him to believe that Cutter had, while in his employment, stolen from him. It was also shown that when he learned that his neighbor Allen had employed Cutter, he, Fresh, honestly believed that it was his duty to inform Allen of what he .knew concerning Cutter; and that he told Allen these things voluntarily and without being requested, honestly believing it was a duty he owed to his neighbor, and for the sole purpose of putting Allen upon his guard. He testified that he had not been • actuated by malice or ill-will, and that he had never had any had feeling against Cutter. There was some evidence that the words complained of had been spoken by Fresh to a person named Click, though the latter was unable to state whether the language used by the defendant was “took” or “stole.” This brief outline of the facts is sufficient to indicate that the principal question which we are called upon to decide on this appeal is, whether the statement made by Fresh to Allen, under the circumstances named, was a privileged communication or not.

If privileged, all the authorities agree in holding that it is not absolutely or unqualifiedly, but only conditionally, so. If falsely and maliciously made, it would be actionable. Malice is the ⁹² foundation of the action, and in ordinary cases is implied from the slander; hut there maybe justification fro.m the occasion, and when this appears an exception to the general rule arises, and the words must he proved to he malicious as well as false. Beeler vs. Jackson, 64 Md., 593 .

This justification from the occasion arises, in the class of cases now being considered, when a communication is “ made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, if made to a party having a corresponding interest or duty,” although the communication “ contained criminating matter which, without this privilege, would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation.” Harrison vs. Bush, 5 Ellis & Bl., 344. It seems to be generally conceded, as falling within this principle, that where a master gives a character of a servant, unless the contrary be expressly proved, it will he presumed that the character was given without malice; and the plaintiff, to support the action, must prove that the character was both falsely and maliciously given; and although the statement as to the character should be untrue in fact, the master will be held justified by the occasion, unless it can be shown that in making the statement he was actuated by a malicious feeling, and knowingly stated what was untrue and injurious. Starkie on Sland. and Lib., 253. If, under the conditions just named, the statement be made in response to an inquiry, it would undoubtedly be privileged.

Weatherston vs. Hawkins, 1 T. R., 110; Child vs. Affleck, 9 Barn. & C., 403. But in the case at bar it is conceded that the information was given by the appellant to Allen voluntarily, and not in response to any inquiry whatever, and this is supposed to take the case out of the privilege. It is not perceived why this circumstance should make any difference ⁹³ if the party has acted, honestly, fairly and without malice; though when the information has been voluntarily given this fact, it has been said, may in some cases have a tendency to disclose the motive of the publisher in making the publication. Townshend on Sland. and Lib., sec. 241.

Without reviewing the decided cases, it may be said, that the weight of authority is to the effect that the mere fact of the communication being voluntarily made, " does not'necessarily exclude it as a non-privileged communication; for a publication warranted by an occasion apparently beneficial and honest, is not actionable in the absence of express malice. Starkie, 253. Or, as stated in Odgers on Sland. and Lib., 202, “if it were found that I wrote systematically to every one to whom the plaintiff applied for work, the jury would probably give damages against me. On the other hand, if B was an intimate friend or a relation of mine, and there was no other evidence of malice except that I volunteered the information, the occasion would still be privileged.” Rogers vs. Clifton, 3 Bos. & Pul., 587; Pattison vs. Jones, 8 Barn. & C., 586.

It is a question for the Court whether the statement if made in good faith and without malice is thus privileged. But the plaintiff has the right notwithstanding the privileged character of the communication to go to the jury, if there be evidence tending to show actual malice, as when the words unreasonably impute crime, or the occasion of their utterance is such as to indicate, by its unnecessary publicity or otherwise, a purpose wrongfully to defame the plaintiff. Dale vs. Harris, 109 Mass., 196 ; Brow vs. Hathaway, 13 Allen, 239 ; Somerville vs. Hawkins, 10 C. B., 583; Gassett vs. Gilbert, 6 Gray, 94 . Or, malice may be established by showing that the publication contained matter not relevant to the occasion.

Townshend, sec. 245. Expressions in excess of what the occasion warrants do not per se take away the privilege, but such excess may be ⁹⁴ evidence of malice. Buckley vs. Kiernan, 7 Ir. Com.

L. R., 75; Hotchkiss vs. Porter, 30 Conn., 414 . It follows from these principles that if the communication made to Allen was made in good faith, without malice, in the honest belief of its truth, and