of the company applies for employment, the agent examines the list; and, if it there appears that he was discharged for some offense, he refuses to employ him. The railroad company claims that the plan adopted is essential to the efficiency of the force employed by it, and to the protection of the company and the public against engaging in its service incompetent or dishonest servants. The plaintiff is a carpenter, and had been employed by the defendant for three or four years in the bridge department. He resided at Niles, a station on the line of defendant's road. He had been at work at Michigan City under a foreman by the name of Palmer, and about the 14th of March, 1882, and on the evening of that day, he entered the fast train of defendant to ride to Niles. He sat in the smoking car, which was poorly lighted, and he threw his overcoat in a seat near by. When he reached Niles, on leaving the train in a hurry, by mistake he picked up a coat which was not his, and left his own, and carried it, with his tools, to the company's shop, and threw it across a bench. The owner of the coat, who was at the time in the dining car, on returning, discovered his loss, and reported it to the conductor. The coat which belonged to the plaintiff was found where plaintiff and other employees had been sitting. . . . The special agent made his report to the assistant superintendent, stating that the coat had been taken from the train, and that there was a big mistake,-after seeing both coats, so much so that he could not believe the man honest who had taken it, and told him "that we had enough to do to watch professional thieves without watching our own men." He both wrote and had a personal interview with the assistant superintendent. He did not, before he made the report, go to Niles to make examination in reference to the case. His report was based upon the inspection of the two coats and what he had learned from Mr. Humphrey and the conductor. He testified that he believed what he stated in his report to Mr. Brown, the assistant superintendent. A day or two later, plaintiff was discharged, for which no cause was assigned at the time. Mr. George Dollivar was the defendant's agent at Niles as division roadmaster, and whose duty it was to employ men. He received one of these discharged lists in April, 1882, for the month of March. Plaintiff came to him, and requested to see the list. He showed it to him. It contained, among other names, the following: Thereupon the plaintiff brought this action of libel against defendant. The Court charged the jury that the communication was privileged, and the plaintiff could not recover without proving affirma tively not only the falsehood of its contents, but also that it was published with express malice; and upon the latter point he instructed the jury that there was no evidence to go to them, and he directed a verdict for the defendant. Clapp and Bridgman, for appellant. Edwards and Stewart (Ashley Pond, Henry Russell, and Otto Kirchner, of counsel), for defendant. CHAMPLIN, J. The charge of the Court raises the only questions for our consideration, which are: first, was the communication privileged; and, second, did the Court err in taking the case from the jury on the ground of an entire want of evidence of express malice. 1. It is not claimed that the communication belongs to that class which are absolutely privileged, but counsel for defendant contend that it was a publication which related to a matter in which the defendant was interested, and concerning which the corporation and its officers to whom it was sent must needs be advised in order to prosecute defendant's business successfully, and therefore it was prima facie privileged; and, to entitle plaintiff to recover, he must show that the publication was both false and malicious. The great underlying principle upon which the doctrine of privileged communications stands is public policy. This is more especially the case with absolute privilege, where the interests and necessities of society require that the time and occasion of the publication or utterance, even though it be both false and malicious, shall protect the defamer from all liability to prosecution for the sake of the public good. It rests upon the same necessity that requires the individual to surrender his personal rights and to suffer loss for the benefit of the common welfare. Happily for the citizen, this class of privilege is restricted to narrow and well-defined limits. Qualified privilege exists in a much larger number of cases. It extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty. And the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation. . . Toogood v. Spyring [supra, No. 897]; Capital and Counties Bank v. Henty, 7 App. Cas. 741; Delany v. Jones [supra, No. 895]; .. M'Dougall v. Claridge, 1 Camp. 267; Weatherston v. Hawkins [post, No. 910]. ... The communication in question here is clearly within the principle of the cases above cited. It was made by a person interested in behalf of defendant company, and having in charge its affairs to a certain extent, to another person alike interested in behalf of the company regarding matters pertaining to his duties as an agent of the company authorized to employ men. Care was taken to restrict the communication to the proper persons and also to prevent undue publicity. It is not only proper, but it is of the utmost importance to the com pany, and to the public having business transactions with it, that the servants employed by it shall be men of good character, temperate, and efficient. . . . It is in proof that defendant had about five thousand men in its service, and any one can see that some system is necessary to prevent being imposed upon by persons unfit to be engaged in such important business as operating a railroad, where lives and property depend upon the trustworthiness of those filling every grade of employment down to and including the common laborer. The ruling of the Court as to the privileged character of the communication was correct. 2. The meaning in law of a privileged communication is that it is made on such an occasion as rébuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff, and throws upon him the onus of proving malice in fact. . . . In these cases the word "malice" is understood as having two significations: one, its ordinary meaning of ill-will against a person; and the other, its legal signification, which is a wrongful act done intentionally, without just cause or excuse. These distinctions have been denominated malice in fact and malice in law. The first implies a desire and an intention to injure: the latter is not necessarily inconsistent with an honest purpose, but, if false and defamatory statements are made concerning another without sufficient cause or excuse, they are legally malicious, and in all ordinary cases malice is implied from the defamatory nature of the statements and their falsity. The effect, therefore, of showing that the communication was made upon privileged occasion is prima facie to rebut the quality or element of malice, and casts upon the plaintiff the necessity of showing malice in fact, that is, that the defendant was actuated by illwill in what he did and said, with a design to causelessly or wantonly injure the plaintiff,-and this malice in fact, resting, as it must, upon the libelous matter itself and the surrounding circumstances tending to prove fact and motive, is a question to be determined by the jury. ... Was there evidence here which would warrant the jury in inferring that defendant acted from malicious motives when charging that plaintiff was discharged from its employment for "stealing"? . . To my mind there was evidence, intrinsic and extrinsic, from which the jury would have been justified in finding that the defendant was actuated by malice in fact, or express malice. . . . I think the evidence in the case should have been submitted to the jury to determine whether defendant, through its agents, acted in good faith, under all the circumstances of the case. The judgment must be reversed, and a new trial granted. CAMPBELL, C. J. I am not satisfied the libel was privileged, and therefore concur in reversal. MORSE, J. I concur in the reversal. 901. WESTON v. BARNICOAT SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1900 175 Mass. 454, 56 N. E. 619 TORT for libel. At the trial in the Superior Court, before DUNBAR, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion. This is an action of tort brought against a member of an association of the type considered in Hartnett v. Plumbers' Supply Association, 169 Mass. 229, for using the machinery provided by the association's by-laws. The defendant made a claim against the plaintiff for the price of a granite monument, which the plaintiff declined to pay. The defendant thereupon notified the plaintiff that, if the plaintiff did not pay, he should report the plaintiff's name to the association, to be placed upon its record of those who did not pay their honest debts. The plaintiff not paying, the defendant notified the local secretary, and thereupon the plaintiff received a letter from the association urging him to settle or explain, with a threat of placing his name upon the record if he did not. The consequence of placing a name upon the record or black list was a boycott by the association, as the plaintiff was notified by a copy of the following by-law: "No member of this association shall quote prices or do any work, either directly or indirectly, for any person, or persons, whose name appears on the list." The plaintiff did not pay, and a little later his name was placed upon the list with the anticipated result, and with the effect of serious damage at least to the plaintiff's business. The plaintiff thereupon brought this action for causing the circulation of the report, and had a verdict. G. W. Wiggin and J. E. Cotter, for the defendant. C. W. Bartlett and E. R. Anderson, for the plaintiff. HOLMES, C. J. [after stating the facts as above]. In the opinion of a majority of the Court the exceptions must be overruled. 1. The defendant set up the truth of the alleged libel, and SO the question who was in default under the contract came before the jury. . . The existence of a debt, if there was any, was an element to be considered in deciding whether the defense of truth was made out. Even if there was a debt, however, the plaintiff might have recovered upon one of several grounds: that the publication imported a general habit on the part of the plaintiff of not paying his debts (whether it had that meaning was one question left to the jury); or that, although there was a debt, there was a counter-claim in recoupment which manifestly justified the plaintiff in not paying until it was adjusted; or that the publication was caused with malicious intention. 2. Several rulings were asked on the question of privilege. As we have said, the case is to be considered solely on the footing of libel. From this point of view it is perfectly plain that the judge could not have ruled that the communication was privileged as matter of law. The jury well might have found facts that would cut at the roots of such a ruling. They might have found not only that the proposition that the plaintiff was a man who refused or neglected to pay his honest debts was false, as they have found, but also that it was known by the defendant to be false. They might have found that it was volunteered for malevolent motives. They might have found that the whole organization was a mere scheme to oust the courts of their jurisdiction, and to enforce colorable claims of the members by a boycott intended to take the place of legal process, and that there was no pretense of any duty about the matter. Indeed, it is hard to see how the by-laws or any understanding of the defendant about the by-laws could have afforded him a justification, as the by-laws merely expressed the terms on which he saw fit to enter into a voluntary organization. A man cannot justify a libel by proving that he has contracted to libel. More specifically, a false statement of a kind manifestly hurtful to a man in his credit and business, and intended to be so, is not privileged because made in obedience to the requirements of a voluntary association got up for the purpose of compelling by a boycott the satisfaction of its members' claims to the exclusion of a resort to the Courts. We do not assume that the character of this organization was what we have described. We only say that the jury might have found it to be such, and that the requests for rulings do not exclude that possible view of the facts. Of course we do not mean to say that the statement might not have been privileged if believed to be true, and if the purpose of the association and publication was and was understood to be merely to give information to the members concerning the credit of people with whom they might deal. But none of the requests were limited to such a state of facts. The difficulty in supposing it is that the by-laws expressly require the members to have no dealings with any person whose name is on the list. . . . Exceptions overruled. 902. NICHOLS v. EATON SUPREME COURT OF Iowa. 1900 110 Ia. 509, 81 N. W. 792 APPEAL from District Court, Polk County. T. F. STEVENSON, J. Action for libel. Defendant Eaton denied generally, and also pleaded that the alleged libel was privileged. The other defendant denied. the allegations of the petition not expressly admitted; admitted its corporate capacity, and that defendant Eaton was its medical director. |