Thorn v. Moser , 1 Denio 488 ( 1845 )

By the Court, Beardsley, J.

The jury were instructed by the judge, that if the witness, Leonard, had been authorized by the plaintiff to investigate the slanderous charge previously made against him by the defendant, what was said by the latter to the witness in the course of that investigation was privileged, and for it no action would lie. As no exception was taken to this part of the charge, we are not required to express any opinion upon it, and I pass it by with the remark, that although the defendant could not well complain of it as prejudicial to his side of the case, it must receive various qualifications, not found in the bill of exceptions, before I could assent to its correctness. But the judge further charged that if the witness had not been so authorized by the plaintiff, and therefore was not his agent to investigate the matter, the slanderous words uttered by the defendant to the witness were not privileged, although the witness had declared that he was so authorized by the plaintiff. This was excepted to by the defendant’s counsel, and it presents the only point in the case which deserves to be noticed.

In general the mere utterance of slanderous words constitutes a ground of action, and the plaintiff need only prove their speaking to authorize a recovery. But to this there are well known exceptions growing out of the occasion of speaking the words and the attendant circumstances. These may be such as to repel the legal presumption of malice, which usually attaches to the speaker of defamatory words, and may require the plaintiff, before he can recover, to. prove the existence of malice in fact on the part of the defendant; Thus, whatever is said in the usual course of legislative or judicial proceedings, is privileged. Complaints made and charges preferred in the proper quarter, against public officers or private agents, are presumptively innocent. The same principle applies where a master, of whom inquiry is made, gives a servant a bad character, as it does to numerous other cases. Indeed, whenever a person speaks in the performance of any duty, legal or moral, public or private, or in the assertion of his own rights, or to vindicate and protect his interest, no action will lie against him without proving express malice, however untrue what is said may be. (1 Stark. on Slander, Wend. ed. 1843, ch. 10 to 13.) “In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well known limits as to verbal slander;) and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. Iffairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.” (Toogood v. Spyring, Parke, B., 1 C. M. & R. 193.) So in Smith v. Thomas, (2 Bing. N. C. 372,) Chief Justice Tindal says: “ The ground of defence intended to be set up by the defendant is, that the words were spoken on an occasion in which the exigencies of society demand that there should be the unlimited right to make inquiry on the one hand, and the unlimited freedom to communicate on the other, such communication being made without any malice against the plaintiff. There can be no doubt that where such an occasion occurs, and there is in the making of the communication the absence of express malice or malice in fact, the law holds the communication to be innocent, and to give no right of action to the plaintiff. In order, however, to constitute such a defence in any case, both circumstances must be found to concur; and after the just occasion for the communication has appeared in proof, the issue must depend on the existence or absence of express malice against the plaintiff.”

Now, in the present case, even if the witness, Leonard, had untruly asserted his authority to investigate the matter, this could not furnish a justification or excuse for the slanderous charges then made by the defendant, and which were renewed and repeated after due caution by the witness. These assertions of the plaintiff’s guilt were in no respect necessary for the purpose of apprising the witness of what had previously occurred, nor could they aid him in carrying forward his investigation. Had he even been, as he may have represented that he was, the plaintiff’s agent to ascertain* from the defendant him self what charges he had made, this, although it certainly would have justified the defendant in answering the inquiries made, and in thus repeating what he had previously said, would not have furnished an excuse for reasserting the calumnious charges. An attempt by a person who deems himself injured to ascertain truly what slanderous imputations had already been cast upon him, could hardly be allowed to justify their renewal. And if such must be the rule, as I think it is, where inquiry is made by the party in person or by his authorized agent, it cannot well be more-favorable to the slanderer when the inquiry proceeds from one who falsely assumes to be agent, the party calumniated being in no sense present at the inquiry or when the slander was uttered. I confess I see no ground on which it can be held.that these slanders were uttered on an occasion which gives them privilege. It was therefore unnecessary to prove actual malice, and no question as to probable cause could possibly arise- in the case.

New trial denied.