officer the mere vehicle of private malevolence, and a jury, on the trial, shall be fully satisfied that the publication was wanton and malicious, and without probable cause, he has no pretensions to escape unpunished. ... I am, therefore, of opinion, that the judgment below be reversed, and a new trial awarded. BRACKENRIDGE, J., declared his concurrence. versed and a venire facias de novo awarded. 928. SMITH v. HIGGINS ... Judgment re SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1860 ACTION or Tort for slander, in saying of the plaintiff and two others, "They went to Barnstable and perjured themselves; I have it in black and white." Trial and verdict for the plaintiff in the court of common pleas in Barnstable at April term, 1859, before BISHOP, J., to whose rulings the defendant alleged exceptions, the substance of which is stated in the opinion. W. L. Burt, for the defendant. BIGELOW, C. J. It is not always easy to determine whether words tending to disparage private character were spoken under such circumstances as not to transcend the privilege afforded by the occasion of which they were uttered. On the one hand, it is important that the reputation of individuals should not be wantonly and unnecessarily assailed; and, on the other, freedom of speech should not be so restricted that a man cannot utter language essential to enable him to discharge properly either a public or private duty, without incurring the risk of an action at law for an alleged injury to private character. The principle applicable to cases in which the claim of privilege is set up is well settled. The difficulty lies in its application. No one can be held responsible for a statement or publication tending to disparage the reputation of another, if it is made in the discharge of a social or moral duty, or is required in order to protect one's own interest or that of another. In such cases, all that is necessary to render the words spoken or published privileged is, that they should be communicated, in good faith and without malice, to those who have an interest in the subject-matter to which they relate, and a right to know and act on the facts stated. Bradley v. Heath, 12 Pick. 163. Gassett v. Gilbert, 6 Gray, 97. Upon a careful consideration of the evidence offered at the trial of this case, we are of opinion that the occasion on which the words averred in the declaration were spoken did justify the defendants in making the statements, although they tended directly to injure the reputation of the plaintiff. This will be apparent when the time, place and circumstances of the utterance of the alleged slander are taken into view. The plaintiff, together with the two other persons named in the declaration, had made an application to the town of Wellfleet to reimburse them for expenses incurred in defending a suit brought against them as assessors for that town in the year 1852. This application was brought regularly before a meeting of the inhabitants of the town, by an article duly inserted in the warrant. The defendant was a taxpayer and a voter in the town. The ground on which the town was asked to grant the indemnity was that the expenses had been incurred in a suit brought against the plaintiff and the other two assessors, in consequence of acts done by them in the due and proper discharge of their official duty. On the other hand, it was alleged by the defendant, and it was shown at the trial, that that action was in fact brought to recover damages of the plaintiff in this action and his co-assessors for making false answers under oath to interrogatories proposed to them in a previous suit brought in behalf of the town of Wellfleet against the collector of the town for the year 1852, for the non-collection of taxes by him. Under these circumstances, it is manifest that the defendant, as a voter and taxpayer, had an interest in the subject which was under consideration at the time the alleged slanderous words were spoken, and that he was speaking to those who had a like interest and a right to know and to act on any facts which were material and pertinent to the matter. If the action brought against the plaintiff and the other assessors was founded on their own wrongful act, in making false answers in the course of a judicial inquiry, it was certainly a good reason for refusing to grant them the indemnity for which they asked, and it was important that the persons present at the town meeting should be informed of the fact, in order that they might act and vote intelligently on the question before them. If therefore the defendant made the statement set out in the declaration in good faith, believing it to be true, and without actual malice towards the plaintiff, it was clearly a communication made in the discharge of a public duty by one who had an interest in the subject, to those who had a right to hear it, and upon a matter which was legitimately before them for action. The occasion rebuts the inference of malice, which the law would otherwise draw from the use of defamatory words; and the defendant cannot be held answerable for them, unless they are proved to have been uttered maliciously. It follows then that defendant was entitled to the instruction for which he asked at the trial, and that the court erred in refusing to rule that the plaintiff could not recover unless he offered proof of actual malice on the part of the defendant, in speaking the words set out in the declaration. . . . Exceptions sustained. 929. BAYS v. HUNT SUPREME COURT OF IOWA. 1882 60 Ia. 251 APPEAL from Shelby Circuit Court. Tuesday, December 12. Action for Slander. There was a judgment upon a verdict for defendant. Plaintiff appeals. Sapp & Lyman, for appellant. Smith & Cullison, for appellee. BECK, J. The petition alleges the speaking of the following among other words: "I (meaning defendant) believe you (meaning plaintiff) will steal; you (meaning plaintiff) are religiously and politically dishonest; D. H. Bays will steal; D. H. Bays is dishonest." . . . The Court directed the jury that if plaintiff was a candidate for office, and seeking the support of the electors at the time the words were spoken, and defendant had been informed and believed that the words were true, and spoke them without malice and in good faith to some of the electors, for the sole purpose of advising them of the real character and qualifications of plaintiff for the office he was seeking, in that case the speaking of the words was privileged, and defendant is not liable therefor. Counsel for plaintiff insists that the instruction is erroneous, for the reason that it is not qualified, as it ought to have been, with the thought that defendant should have reasonable and probable cause, as a prudent, careful man, to believe the words spoken to be true. We are of the opinion that the instruction as given is correct. Belief in the truth of the words, and hearsay as probable ground for belief, justified defendant in imparting the information in good faith to the electors. Townshend on Slander and Libel (2 Ed.), § 241, and notes. All men, in the gravest affairs, are accustomed to act upon information received from others, which is fully believed by them. In order to justify their action under such belief, the law does not provide a standard by which to measure their credulity. It simply requires an honest belief, which presupposes the exercise of the faculties of the mind and the knowledge possessed by them as would be done by an ordinarily prudent and careful man. The judgment of the Circuit Court is affirmed. ... 930. STATE v. HASKINS SUPREME COURT OF IOWA. 1899 109 Ia. 656, 80 N. W. 1063 APPEAL from Buena Vista District Court, HON. W. B. QUARTON, Judge. Wednesday, December 13, 1899. Indictment for libel. There was a trial to jury, verdict of guilty, and from the judgment entered thereon defendant appeals. Affirmed. T. H. Chapman, for appellant. Milton Remley, Attorney General, and Carr & Parker for the state. WATERMAN, J. Defendant is the editor and publisher of a newspaper printed in the county of Buena Vista, one of the counties composing the Fourteenth judicial district of this state. The article upon which this prosecution is founded was written by one Bruce, and published by defendant in his paper, at a time when one F. H. Helsell was a candidate for the office of judge of the district court in and for said district. The article charged Helsell with fraudulently altering a public record. No claim is here made that the charge was true. It is, however, insisted by defendant that if he published the article in good faith, believing it to be true, and actuated by justifiable motives, he cannot properly be convicted. A determination of the question thus presented will dispose of several of the assignments of error.. 1. There is no little uncertainty in the books on the question of what constitutes a privileged communication, or rather what publications are protected as such. There are cases which hold that a charge of crime made against one who is a candidate for public office may be the subject of privilege. Briggs v. Garrett, 111 Pa. St. 404 (2 Atl. Rep. 513). The contrary is held by many courts of high standing. See Bronson v. Bruce, 59 Mich. 467 [post, No. 936] and cases cited. We need not determine between these conflicting authorities, for reasons which will presently appear. An absolute privilege is a complete defence. No legal complaint can be founded upon words spoken or written under its protection. Of this nature are proceedings in legislative assemblies, and generally in judicial tribunals. A qualified privilege is where the communication is made in the discharge of some duty, social, legal, or moral. Such a defence may be rebutted by a showing of actual malice. To establish a qualified privilege, it must be shown that defendant believed the charge to be true, and published it in the discharge of some duty, and we may assume that it was a duty on his part to make known to the electors of the Fourteenth judicial district the true character of a candidate for the office of district judge. But, if this duty was in any way transcended, the good faith of defendant ceased to be material. Evidence of good faith is admissible, not as a defence in itself, but only as an element going to make up the defence of qualified privilege. 2. It appeared in this case, from defendant's own testimony, that he voluntarily published the charge, not only outside the Fourteenth judicial district, but outside the State; thus making it known to persons who were in no way interested in the judicial election. We have been cited to no case, and know of no principle of law, that would sustain the claim of privilege, under these circumstances. In Buckstaff v. Hicks, 94 Wis. 34 (68 N. W. Rep. 403), on a state of facts quite similar to those here involved, the Court said: "The evidence showed that the newspaper in question circulated in adjoining counties and cities outside of the county of Winnebago, and outside of the plaintiff's senatorial district. To claim that there was any duty, public or private, resting on the defendant to publish such a charge against the plaintiff in these localities, is to demonstrate the absurdity of the claim. There was not only no duty, but there was certainly no tangible interest in the subject-matter on the part of the people outside of plaintiff's district. Thus, it is very plainly seen that the publication, even if it could be considered as privileged when made to a citizen of Oshkosh, who might be said to be interested in the subjectmatter, could not be made broadcast to the world, and preserve its privileged character. The publication is excessive. It must be confined to people to whom defendant owes a duty to speak, or who have an interest with defendant in the subject-matter." See also Rude v. Nass, 79 Wis. 321 [ante, No. 917]. Affirmed. ROBINSON, C. J., taking no part. sitting. GRANGER, J., not (2) Indefinite Public Interest (" Fair Comment") 931. CARR v. HOOD NISI PRIUS. 1813. 3 Camp. 294 THE declaration stated, that the plaintiff before the publishing of any of the false, scandalous, malicious, and defamatory libels thereinafter mentioned, was the author of, and had sold for divers large sums of money, the respective copyrights of divers books of him the said Sir John, to-wit, a certain book entitled "The Stranger in France," a certain other book, entitled "A Northern Summer," a certain other book, entitled "The Stranger in Ireland," &c., which said books had been respectively published in 4to, yet that defendant intending to expose him to, and to bring upon him great contempt, laughter and ridicule, falsely and maliciously published a certain false, scandalous, malicious, and defamatory libel, in the form of a book, . . representing in the said print, a certain false, scandalous, and malicious, defamatory and ridiculous representation of the said Sir John, in the form of a man of ludicrous and ridiculous appearance, holding a pocket handkerchief to his face and appearing to be weeping, and also containing therein a certain false, malicious, and ridiculous representation of a man of ludicrous and ridiculous appearance, following the said representation of the said Sir John, and representing a man loaded with, and bending under the weight of three large books, . . . meaning and intending to represent, . . . that one copy of the said first mentioned book of the said Sir John, and two copies of the said book of the said Sir John secondly |