Maurice v. Worden

Brent, J., delivered the opinion of the Court. The libel charged in the declaration, consists of an endorsement written by the appellee upon a letter of the appellant, tendering his resignation of the position of teacher of French in the United States Fa val Academy at Annapolis. The letter, it is alleged, was addressed to the appellee, an officer in the United States ilavy, and then in command and authority over the Uaval Academy, to be by him transmitted to the Secretary of the ISTavy. Before being so transmitted, it is charged that it was falsely and maliciously endorsed with the alleged libel.

To the declaration, the appellee pleaded non cul., and limitations in two forms—1st. That the cause of action did not accrue within one year; and 2nd, that the alleged writing and publishing was not within one year before the commencement of this suit. Issue was taken to the plea of non cul., and the appellant replied to the pleas of limitations, that he was kept in ignorance by the fraud of the defendant, of the cause of action accruing to him, and did not discover or know of the said fraud, nor could the same have been discovered ²⁵⁰ or known of by him, with usual and ordinary diligence on his part, before or until the third day of February, 1876, and that at the last mentioned date,- the defendant -was absent out of this State, and so remained until less than one year before this suit was brought. And the same as to the writing and publishing.

To each of these replications, the appellee filed four rejoinders, denying seriatim each one of the several facts alleged. Issues were thereupon joined by way of rebutter, and upon this state of the pleading, the case proceeded to trial. The plaintiff put upon the witness stand Mrs. Maurice, who testified, subject to exceptions, that the defendant in 1878, in reply to a question from her, admitted that he had endorsed upon the resignation of the plaintiff, the words complained of as libellous, and also offered, subject to like exceptions, a copy furnished from the files of the Naval Academy, of said resignation and the endorsement thereon of the -defendant. Mrs. Maurice further proved that she told the defendant she had this copy in her possession, and it was to that she referred in her conversation with him.

At this stage of the case, the defendant moved to exclude all this testimony, and in connection with the motion, for the purpose of showing that the endorsement in question was a communication made by him to the Navy Department in the discharge of his official duty, and was upon that ground inadmissible in evidence against him, asked leave to call a witness, and to ask him whether the book referred to .in the record as “ Defendant’s Exhibit A,” was the book of regulations for tbe government of all persons attached to the United States Naval Service, in force on the 4th of October, 1872, and applicable to persons then attached to the United States Naval Academy at Annapolis. The plaintiff objected, and insists that having commenced his proof, he had the right to proceed and finish before any evidence on the part of the defend ²⁵¹ ant conld be properly offered. The Court overruled the objection, and permitted the witness to be called. This is the error alleged in the first exception.

The rule of Court proyiding that “ on trials of fact the plaintiff shall have the opening and conclusion,” does not apply to the question here presented ; nor does the rule that the plaintiff must put in the whole of his evidence upon every point or issue which he opens, before the defendant proceeds with the evidence on his part. The offer of the defendant was not for the purpose of placing before the jury his evidence in defence, before the plaintiff had closed. The testimony offered was exclusively for the Court, whose province it was to determine whether the communication in question to the Secretary of the Havy, was such a privileged paper as excluded it altogether from being properly in evidence before the jury. Hot to have decided the question when presented might have unnecessarily prolonged the trial.

If the paper in question was absolutely privileged it was not admissible, and no proof, which the plaintiff could have afterwards offered, would have enabled him to recover. ■ The proof proposed was necessary for the decision of this question, and the Court acted rightly in determining to hear it. Another reason in support of the action of the Court may also be stated. If the communication should not have been held upon the proof offered to be absolutely privileged, it may have been found to fall within the class of communications to which the doctrine of qualified privilege is applied. This being so, the order of proof would become changed, by putting upon the plaintiff the burden of showing that the paper was not written from a sense of duty, but from malice and ill-will.

But the Court has at any stage of the trial, the right and power to exclude evidence improperly admitted, or admitted subject to exceptions. If its admissibility depends upon outside or collateral facts, there can be no ²⁵² reason why the Court should not hear them without' delay. The admissibility of evidence must not he confounded with the rule, directing the order in which the respective parties are required to offer their evidence in support of their case. The defendant, after the objection of the plaintiff, as stated in the first bill of exceptions was overruled, proved that the bookmarked “ Defendant’s Exhibit A,” contains the regulations for the government of all persons attached to the Naval Service of the United States, which were in force on the 4th of October, 1872, and were in force during the whole of the defendant’s connection with the Naval Academy at Annapolis.

These regulations purport to have been established by the Secretary of the Navy in March, 1870. Their binding effect upon the defendant cannot be questioned. The Act of Congress, Rev. Stat. U. S., sec. 1547, passed in accordance with Article 1, sec. 8, of the Constitution of the United States, by express terms, provides that the orders, regulations and instructions issued by the Secretary of the Navy, are to be recognized as the regulations of the Navy. Number 1448 of these regulations, directs that “All officers through whom communications from inferiors are to be forwarded to the Department, one of the bureaus or any authority higher than themselves, must forward the same, if couched in respectful language, as soon after being received as practicable, and they will invariably state their opinion in writing, by endorsement or otherwise, in relation to every subject presented for decision.” The resignation of the plaintiff was placed in the hands of the defendant, then Superintendent of the Naval Academy, to he forwarded to the Secretary of the Navy for his decision.

The regulation referred to plainly required the appellee to state his opinion in writing, by endorsement or otherwise, in regard to the propriety of its being accepted. This he did by making the endorse ²⁵³ ment complained of. It was therefore made in the line of his duty, and one of the questions presented by the second exception, is whether or not this endorsement is a privileged communication, and if so, to what extent ? There -are two classes of privileged communications which form exceptions to the general law of libel.

The one is absolutely privileged and cannot be sued upon, while the other may he the cause of action, and the suit upon it maintained on proof of actual malice. These privileges rest alone on the ground of public policy, and in speaking of them we have no reference to privileges which are secured by constitutional or statutory provisions. A great number of authorities have been referred to, ■and they have been examined with care. There is but little conflict among them in relation to the class of communications which are regarded as absolutely privileged.

The classification in Starkie on Libel and Slander, well states the conclusion drawn from the great bulk of the cases. Those enumerated by the author as being absolutely privileged, though false and malicious, and made without reasonable or probable cause, “ are communications made in the course of judicial proceedings, whether civil or criminal, and whether by a suitor, prosecutor, witness, counsel or juror; or by a judge, magistrate, or person presiding in a judicial capacity, of any Court or other ■tribunal, judicial or military, recognized by and. constituted according to law; and so also communications made in the course of parliamentary proceedings, whether by a member of either House of Parliament or by petition of individuals who are not members, presented to either house or to a committee thereof.” Folkhard’s Starkie, sec. 688, and authorities there cited. Beyond this enumeration we are not prepared to go. The doctrine of absolute privilege is so inconsistent with the rule that a remedy ■should exist for every wrong, that we are not disposed to ²⁵⁴ extend it beyond the strict line established by a concurrence of decisions.

There is a class of communications which the Courts will not require to be produced in evidence, where those having the custody of them, object to their publicity on the grounds of public policy. Such are official communications to the heads of government, and between its different departments. And under this head are most of the authorities cited by the appellee. “ And where the law is restrained by public policy from enforcing the production of papers, the like necessity restrains it from doing what would be the same in effect, namely, receiving secondary evidence of their contents.” 1 Green. Ev., sec. 251.

Whether this communication, being from an officer of the Navy to the Secretary of that department, is embraced in this class, is not a question raised by this record. It appears from it, that the Secretary not only does not object to the publicity of the communication, but has furnished a certified copy of it upon the express statement of the appellant’s counsel that it was intended for use in this particular case. We cannot, in view of the authorities or upon principle, hold the communication declared upon to be absolutely privileged. It was made in the line of duty, and this only clothes it with a privilege that is qualified.

The occasion operates as a defence, unless express malice be proved. Folkhard’s Starkie, sec. 679, (M.) p. 518. In Cook vs. Hill, 3 Sand., 349, the Court say, “We are not much inclined, after considering the authorities, to extend the doctrine of absolutely privileged communications. We shall conform to the settled rule as far as the law has carried it; but we shall go no further. * * * The doctrine has not been extended here beyond legal proceedings; and applications, memorials, and similar matters presented to the Legislature and growing out of legislative proceedings. * * The other class of privi ²⁵⁵ leged communications, for which there is no absolute privilege, is very numerous.

In order to make the writer or publisher liable, it must appear that he acted maliciously and without probable cause. If there were no probable cause for the communication, the law implies that it was made with malice. If, however, it appear that there was probable cause, the communication is privileged, no matter how much actual malice dictated it.” In Garrett vs. Dickerson, 19 Md., 450 , the general doctrine is announced that “ The only effect of privilege on actionable words is to rebut the legal inference or presumption of malice, and to that extent constitute a good defence in an action on them.” In White vs. Nicholls, 3 How., 267 , where the question of privilege was presented, the Supreme Court refused to extend the doctrine of absolute privilege to cases where the author of the alleged slander acted in the bona fide discharge of a public or private duty; legal or moral. In speaking of it as embraced by the “exceptions ” to the general law of slander and libel, the Court say on page 281, “ But the term ‘ exceptions/ as applied to cases like those just enumerated, could never he interpreted to mean that there is a class of actions or transactions placed above the cognizance of the law, absolved from the commands of justice.

It is difficult to conceive how, in society where rights and duties are relative and mutual, there can he tolerated those who are privileged to do injury legibus soluti ; and still more difficult to imagine how such a privilege could he instituted or tolerated upon the principles of social good. The privilege spoken of in the hooks should, in our opinion, he taken with strong and well defined qualifications. It signifies this and nothing more. That the excepted instances shall so far change the ordinary rule with respect to slanderous or libellous matter, as to remove the regular and usual presumption of malice, and to make it incumbent on the party complaining to show malice, either by the construction ²⁵⁶ of the spoken or written matter, or by facts and circumstances connected with that matter or with the situation of the parties, adequate to authorize the conclusion.” The doctrine announced in this case in relation to the privilege of those acting in a judicial capacity, has been modified and explained in the subsequent case of Bradley vs. Fisher, 13 Wall., 335 ; hut there is nothing in that case in any way in conflict with the doctrine announced in respect to communications or words spoken in the discharge of a duty.

The case principally relied upon hy the appellee is that of Dawkins vs. Lord Paulet, L. Reps., 5 Q. B., 94. This case is one at nisi prius, and does not carry with it the weight of decisions hy Courts of last resort. An opinion is delivered hy each of the three Judges who sat. Two of them held the communication to he absolutely privileged.

But we think the entire force of their decision is taken away hy the able dissenting opinion of 0. J., Cockburn. He discusses very fully the question of public policy, which it was claimed required a communication from an officer in the army to his superior to he absolutely privileged, and in his review of the authorities, satisfactorily, in our opinion, shows that they do not support the views of the majority of the Court. The alleged libel in that case consisted of communications from an officer of the army “in the course of military duty and as an act of military duty.” It was claimed that they were absolutely, privileged.

But Chief Justice Cookburjt thought differently, and was of opinion that an action would lie if the communications were made of actual malice and without reasonable and probable cause. We concur in the views taken in his opinion, and believing that they state the •true rule of law, shall adopt them rather than the conclusions reached hy the two judges who sat with him. In Dickson vs. The Earl of Wilton, 1 Fos. & Fin., 419, where the alleged libel consisted of communications from ²⁵⁷ an officer of the army made in the course of duty, the question of privilege was raised by the Attorney-General. Lord Campbell, C. J., who sat in the case, seeming to think it so clear the communications were not absolutely privileged, that he did not even refer to them in that connection. “The first question,” he says, “is, whether these were what the law called privileged communications ; for if so, the defendant is not called upon to prove their truth, provided they were made in good faith.

The law most reasonably says, that what is written or spoken in the course of business, or in a matter of serious interest, where a person has a duty to perform, or an interest to consult, and addresses a person who has a like interest, and a relative duty to perform, the communication is privileged. * * Whether or not the occasion gives the privilege is a question.of law for the Judges ; hut whether the party fairly and properly conducted himself in the exercise of it is a question for the jury.” We deem it unnecessary to multiply the citation of .cases upon this question, of privilege. We are satisfied that the communication in question does- not fall within the class of communications which are absolutely privileged. We hold it, however, to be privileged, to the extent that the occasion of making it rebuts the presumption of malice, and throws upon the plaintiff the onus of proving that it was not made from duty, but from actual malice and without reasonable and probable cause. The next question is the exclusion of the testimony of Mrs. Maurice, as to the admission of the defendant that he made a certain endorsement on the letter of resignation of the plaintiff.

This evidence is not secondary, but ■comes within the class of primary evidence. The admissions of a party, freely and voluntarily made, are always ■evidence, which may be introduced by the opposite party. In Smith vs. Palmer, 6 Cush., 520 , it is said, “The ■admissions of a party are not open to the same objection ²⁵⁸ which belongs to parol evidence from other sources. A party’s own statements and admissions are in all cases admissible in evidence against him, though such statements and admissions may involve what must necessarily he contained in some writing, deed, or record.” In Loomis’ Adm’r vs. Wadhams, 8 Gray, 562 , the Court quoting from Mr. Justice Pakke in Earle vs. Picken, 5 Car. & P., 542, say, “ What a party says is evidence against himself as an admission, whether it relates to the contents of a written paper or anything else.” See also Slattery vs. Pooley, 6 M. & W., 669; 1 Green.

Ev., sec. 203; 1 Taylor Ev., sec. 668. The evidence however must he confined to the admissions of the party. We do not understand from the record that the defendant admitted the copy furnished from the files of the Naval Academy to he a true copy from the original. It does not seem to have been shown to him.

The witness states she had it in her possession, and that it was to that copy that she had reference in her conversation with the defendant. As an admission of the defendant this copy was not admissible, nor was it admissible upon its own merits, as it was a copy from a copy and no sufficient ground had been stated in the proof to let it come in as secondary