Echard v. Morton , 26 Pa. Super. 579 ( 1904 )

Opinion by

Henderson, J.,

When the borough of Connelsville was about to open Crawford, avenue the defendant appeared at a meeting of the council and stated that the borough authorities had entered upon his land without right and were causing damage to his property. ' A deed was then exhibited by the clerk of the council which it was alleged had been executed by the defendant and under which the borough claimed the right to occupy the defendant’s land included within the lines of the street. The deed purported to have been acknowledged before the plaintiff, a justice of the peace. The defendant denied that he ever executed it in the presence of the plaintiff. Thereupon the plaintiff brought this action for the defamation implied in the defendant’s denial. One of the grounds of defense presented at the trial was that the communication was privileged and the assignments of error relate to the charge of the court and the answers to the defendant’s points on this subject.

It seems not to have been denied that the defendant appeared at the meeting of the council for the protection of his property and in defense of his rights against what he alleged to be an unwarranted trespass. He came before the body which had control of the subject and whose interference he sought for protection of his interests. It is not shown that he was animated by any other purpose or motive in so doing'

A statement made in good faith relating to a subject in which the person making the communication is interested or in regard to which he has a social or moral duty, when made to one having a like interest or duty, is privileged, and in such case the burden of proof rests on the party claiming to have been slandered to show that the communication was malicious: Toogood v. Spyring, 1 C. M. & R. 181; Harrison v. Bush, 5 E. & B. 344; White v. Nicholls, 44 W. S. 266; Gassett v. Gilbert, 72 Mass. 94; Briggs v. Garrett, 111 Pa. 404. This includes communications bona fide made by the author in the prosecution of his own rights or interests. As to such communication the law does not imply malice from the communication itself. The plaintiff must satisfy the jury of the existence of actual malice before he is entitled to a recovery.

Whether a communication is privileged or not is a question of law to be determined by the court: Neeb v. Hope, 111 Pa. 145. Whether the defendant was actuated by malicious mo: fives in speaking the defamatory words is a question of fact for the jury. We have no doubt that the language attributed to the defendant was spoken on a proper occasion and upon a subject relating to his property rights in which subject the council was also interested. The defendant was not only not bound to remain silent when confronted with a document, the effect of which was claimed to be the conveyance to the public of a right to use his land, if he honestly believed that he did not execute such a conveyance, but his silence on such an occasion might have raised a presumption of acquiescence in the claim asserted by the borough. If the instrument under which the borough claimed the right to proceed did not have or was not intended to have the effect attributed to it, it was the defendant’s right, if not his duty, so to contend when his property was about to be taken under the authority alleged to have been granted. The burden was thereby shifted to the plaintiff to show that the words used were not true and that the defendant uttered them maliciously.

The defendant’s claim of privilege was directly raised by the first and third points, of which the defendant was entitled to an affirmance. The learned judge óf tire court below, as shown in that portion of the charge set forth in the second assignment of error, misapprehended the position of the defendant upon this subject. The jury was therein advised that the defendant relied for his defense on what he claimed to be the truth of his statement that he never acknowledged the deed which was offered or spoken of at the meeting of the council and was instructed that if he did not acknowledge the deed before the plaintiff the verdict should be for the defendant. The jury was further instructed, as set forth in the third assignment of error that if the words spoken were false and the defendant used them in the sense contended for by the plaintiff, the verdict should be for the plaintiff. By the refusal of the first and third points, and this instruction to the jury, the defendant was deprived of one of his defenses and what seems to be his principal defense under the evidence in the case. He was entitled to the instruction that if he made the denial of the execution of the deed in the honest belief that he had nob acknowledged it and with no other purpose than to maintain his own rights and to induce the borough council to protect him therein, the statement so made was privileged and the plaintiff could not recover without proof of actual malice.

If as contended by the plaintiff the relation of the parties, the circumstances attending the publication and the connection of the defendant with the deed negative the claim of good faith and honest belief the jury must nevertheless determine that question under all the evidence.

The second, third, fifth and seventh assignments of error are sustained, the judgment is reversed and a venire facias de novo awarded.