Doane v. Grew

107 N.E. 620, 220 Mass. 171, 1915 Mass. LEXIS 666

• Court: Massachusetts Supreme Judicial Court
• Decided: January 20, 1915
• Status: Published

Opinion

Loring, J.

1. The defendant’s exceptions to the charge of the presiding judge raise questions as to a defendant’s liability for false defamatory words spoken on a privileged occasion.

If the occasion on which slanderous words are spoken is a privileged one and the defendant (in saying what he said) was acting under the privilege created by the occasion, a defence is made out, even if what he said was not in fact true. Where inquiries are made as to the character and capabilities of a former servant, the occasion is a privileged one. Of that there is no question. It is the typical case of a privileged occasion.

Where the occasion is a privileged one the plaintiff can hold the defendant liable if he proves that (in saying what he said of the plaintiff) the defendant did not in fact use his privilege. That is to say: Although the defendant (in answering questions as to the character and capability .of a former servant) is protected if he was “acting in Iona fide answer to the needs of the occasion,” yet if malice in fact is proved the defendant is liable. By malice in fact is meant “the wilful doing of an injurious act without lawful excuse.” In this connection it means that (although the occasion was a privileged one) the defendant, in saying what he said of the plaintiff, was acting outside his privilege and not under it. To prove malice in fact (that the defendant was acting outside his privilege and not under it) the plaintiff may introduce direct evidence that the defendant made the untrue defamatory statements out of hatred for the plaintiff. That is perhaps the most common way of proving malice in fact in this connection. But it is not the only way of proving malice in fact in this connection, namely, that the defendant was acting not under, but outside, his privilege. In Gott v. Pulsifer, 122 Mass. 235, it was assumed that publishers of newspapers, in making statements of facts which were not true, stand on the same footing as persons asked as to the character and capabilities of a former servant. On that assumption it was there held (in effect) that, if an article in the defendant’s newspaper containing an untrue statement of fact was written for the sake of writing a brilliant article in reckless disregard of the rights of the plaintiff, malice in fact was made out. It is now settled that the assumption made in Gott v. Pulsifer is not law. Burt v. Advertiser Newspaper Co. 154 Mass. 238, affirming Sheckell v. Jackson, 10 Cush. 25. But on the assumption made in Gott v. Pulsifer, the decision in that case is correct. So in a case where the slanderous words uttered by the defendant on a privileged occasion are based upon what he has heard, if there is great excess in repeating what he has heard there is evidence that the defendant was not acting within the privilege which the occasion gave him, but outside it. See Clark v. Molyneux, 3 Q. B. D. 237.

Malice in fact which destroys the defence of privilege must be taken to mean that the defamatory words, although spoken on a privileged occasion, were not spoken pursuant to the right and duty which created the privilege but that they were spoken from some other motive. See in this connection Lord Blackburn in Capital & Counties Bank, Ltd. v. Henty, 7 App. Cas. 741, 787. “Duty” in this connection is not confined to obligations enforced by law. Giving information as to the character and capabilities of a former servant (for example) is not a legal obligation enforced by law. The law recognizes its existence as a social obligation which cannot be performed unless it creates a privileged occasion.

It is apparent that there are many ways of proving malice in fact in this connection, and that they cannot be enumerated in advance.

It follows from what has been said that the parts of the charge to which exceptions were taken did not properly present to -the jury the questions to be decided by them in this case.

But the objection to one part of the charge excepted to goes-deeper than that. In one part of the charge excepted to the presiding judge in effect told the jury that the defendant was liable (in case they found that the plaintiff did not in fact abuse the defendant’s child) if the defendant did not honestly believe that fact, or if believing it she did not have sufficient cause to warrant the belief but was reckless or careless in trusting to the statements made by Mrs. MacMahon and her (the defendant’s) children.

• When inquiry is made of a person as to the character and capabilities of a former servant, the person to whom the inquiry is addressed would not do his whole duty if he should confine his answer to facts which he knows to be facts of his own knowledge. Nor would he do his whole duty if he should confine himself to i giving information which he has fully investigated. Indeed he would fail in doing his full duty if he should omit to impart any material information which has come to him, even if he has not attempted to investigate it at all. And Bramwell, L. J., in Clark v. Molyneux, 3 Q. B. D. 237, 244, went even farther and laid down the proposition that “a person may honestly make on a particular [privileged] occasion a defamatory statement without believing it to be true; because the statement may be of such a character that on that occasion it may be proper to communicate it to the particular person who ought to be informed of it.” The person inquired of on a privileged occasion must be fair to the person making the inquiry as well as to the person about whom the inquiry is made. Where he has information (whether it has or has not been investigated by him), it is his duty to state in answer to the inquiry that he has the information, giving it (as the defendant did in the case at bar) as information concerning a fact as distinguished from a statement of the existence of the fact. Where the person to whom the inquiry is put makes a statement that he has information as to a fact (as distinguished from a statement that the fact exists) his privilege does not depend upon whether he in good faith believes the fact or whether he ought to have believed the fact or was reckless and careless in believing the fact. Where the person to whom the inquiry is put makes that kind of answer (namely that.he has information as to a fact) he does not state that the reported fact is or is not a fact or that he believes or does not believe the reported fact. The person who makes the inquiry is entitled to the information which has come to the person to whom the inquiry is addressed, and the statement that information has come to him, if honestly made in answer to the. inquiry, is a privileged communication. The good faith in question in that case is not good faith in believing the fact, but good faith in giving the information that the needs of the privileged occasion call for. A charge to a jury substantially the same as the charge here in question, in a case (in its legal aspects) substantially the same as the case at bar, was held to be incorrect by the English Court of Appeal in Clark v. Molyneux, 3 Q. B. D. 237.

There have been a number of cases in Massachusetts in which the question of what malice in fact means (within the rule that where malice in fact is proved the defendant is liable for false defamatory words spoken on a privileged occasion) has been discussed. See Remington v. Congdon, 2 Pick. 310; Bodwell v. Osgood, 3 Pick. 379; Swan v. Tappan, 5 Cush. 104; Brow v. Hathaway, 13 Allen, 239; Atwill v. Mackintosh, 120 Mass. 177; Gott v. Pulsifer, 122 Mass. 235; Billings v. Fairbanks, 139 Mass. 66; Wright v. Lothrop, 149 Mass. 385; Howland v. Flood, 160 Mass. 509; Squires v. Wason Manuf. Co. 182 Mass. 137; Robinson v. Van Auken, 190 Mass. 161; Crafer v. Hooper, 194 Mass. 68; Christopher v. Akin, 214 Mass. 332; and there may be others.

The decisions actually made in these cases do not seem to be in conflict. But it is not possible to harmonize all that was said when these cases were decided. This has come, to some extent at least, from an assumption that the question for the jury in such cases is always the same. But that is not so. Given the definition which has been stated above, the exact question to be passed upon by the jury in each case depends or may depend upon the form in which the defamatory words were put by the defendant, taken in connection with the knowledge or information which the defendant had as to the matter of the defamatory statements.

Take an example. Suppose that bare information of a fact had come to a defendant who was inquired of with respect to the capabilities and character of a former servant and the defendant was ignorant as to the trustworthiness of the source from which the information came; if under these circumstances he should state the existence of the fact as of his own knowledge, the question to be passed upon by the jury is a very different one from that which is presented when there is evidence that the statement made by the defendant matches exactly the information or knowledge which he had received and the accuracy of the source from which that information or knowledge came. It is manifest that there are a number of intermediate cases between these two, where there is a discrepancy between the statements made and the information and the knowledge of the defendant as to the accuracy of the information.

These discrepancies between the information and the statements are put as examples of one aspect only which may give rise to differences in the exact question to be passed upon by the jury in determining whether there was or was not that malice in fact which destroys the defence of privilege although the words were spoken on a privileged occasion. No rule can be laid down in advance to cover all cases beyond the statement of the fundamental proposition that in the case of false defamatory words spoken on a privileged occasion the defendant is not liable if he spoke the words in good faith under the right or duty which the. occasion created, and that he is liable if he spoke the words from some other motive.

The cases of Lothrop v. Adams, 133 Mass. 471; Brown v. Massachusetts Title Ins. Co. 151 Mass. 127; Fay v. Harrington, 176 Mass. 270; and Conner v. Standard Publishing Co. 183 Mass. 474, relied on by the defendant, arose under St. 1855, c. 396 (and the re-enactments of that statute), which extended to civil actions for libel the provisions which theretofore had been applicable to criminal prosecutions for libel (St. 1826, c. 107, § 1; Rev. Sts. c. 133, § 6). By the original act (St. 1855, c. 396), it was provided that in a civil action for libel, truth was a defence “unless malicious intention shall be proved.” The wording of the act has been changed, so that in R. L. c. 173, § 91, the provision is: “ The truth shall be a justification unless actual malice is proved.” These cases are not decisive here.

2. The evidence, which was excepted to, of the repetition of this (or of a substantially similar) slander made to Mrs. Eldridge and Mrs. Benson was admissible to prove malice, although it was not ground for an action because both Mrs. Eldridge and Mrs. Benson, in procuring the repetition of the slander, confessedly acted as the agent of the plaintiff and at her request. Howland v. Blake Manuf. Co. 156 Mass. 543. It is established at common law that repetition of substantially the same slander may be shown in evidence for the purpose of proving malice to enhance damages. Bodwell v. Swan, 3 Pick. 376. Baldwin v. Soule, 6 Gray, 321. Robbins v. Fletcher, 101 Mass. 115.

3. But we are of opinion that the plaintiff should not have been allowed to introduce in evidence that on applying to Mrs. Pillsbury and to Mrs. Felton for a position as nurse and on referring them to the defendant she received word in each case that her services were not required. This was admitted for the purpose of showing the defendant’s state of mind toward the plaintiff and for no other purpose. But in our opinion it was too remote. While it is a possible inference from these facts (without more) that in each case the plaintiff failed to get the position because of the reference given by the defendant, that inference is so remote that the evidence should not have been admitted. The course of the trial of this case is an example. When Mrs. Pillsbury was later put upon the stand, she testified that she did not talk with the defendant at all. Thereupon the plaintiff’s counsel stated that he would take her at her word. And Mrs. Felton testified that although she did apply to the defendant all that the defendant said was that the plaintiff had been very satisfactory for two years but the last year she had not done so well; and that this did not affect her (the witness) in deciding not to employ the plaintiff. Whether the exception to the admission of this evidence would have been sustained it is not necessary to decide. It was perhaps within the discretion of the presiding judge to admit it in evidence. This evidence ought not to be admitted at the new trial which has become necessary.

4. The ruling asked for by the defendant, that there was no evidence to warrant a finding of malice on the part of the defendant, was refused rightly. The plaintiff testified that on the day on which she left the defendant (although she had given a week’s notice of her intention to leave), the defendant first told her to “pack up and get right out as quick as you can, — in an hour if you can,” and later (while she was packing) that the defendant said to her, “ I will call up Mr. Grew; I will see whether you will go or not.” One explanation of this inconsistent conduct on the defendant’s part is that she was beside herself with anger. The fact that the defendant was angry with the plaintiff (if the jury adopted this explanation of the plaintiff’s testimony and found that she was angry with the plaintiff) was sufficient to enable the plaintiff to go •to the jury on the question whether the defendant (in making statements as to the plaintiff which were not in fact true—if the jury found that she did make statements not in fact true —) was acting under the privilege which the occasion created or outside it.

5. Although Mrs. Hobart denied it on the witness stand, the jury were at liberty to find that she refused to take the plaintiff as a nurse because of the statements .made to' her by the defendant. The exception taken to the refusal to give the third ruling requested must be overruled.

6. The sixth, seventh and eighth requests were aimed at the sufficiency of the fifth, sixth and seventh counts under the rule of practice applied in Murphy v. Russell, 202 Mass. 480. These counts would seem to be counts for maliciously and without justifiable cause preventing the employment of the plaintiff by Mrs. Hobart under the doctrine of Moran v. Dunphy, 177 Mass. 485 (a case of interference with an employment actually in existence), applied to the prevention of getting employment in place of interfering with an actual employment then in existence. With the exception of one incidental reference to these counts in the charge (which is not of consequence), the case was left to the jury as an action- of slander. That is to say the case in fact was left to the jury on the first count. We do not know whether the fifth, sixth and seventh counts (as distinguished from the first count) will be relied upon at the new trial. It is not necessary at this time to consider whether the allegations of these counts make out a case under the doctrine on which they seem to be founded.

7. It is necessary to state (on account of the contention made by the defendant in support of the exception to the judge’s refusal to direct a verdict for the defendant) that Mrs. Hobart herself testified to some of the statements set forth in the first count.

.8. The judge was wrong in charging the jury that “the burden is upon the defendant to show that they were privileged words, •for which she is not answerable.” If the occasion is a privileged one the burden is on the plaintiff to prove malice. Brow v. Hathaway, 13 Allen, 239. Clark v. Molyneux, 3 Q. B. D. 237. No exception was taken to this instruction, but it becomes necessary to refer to it in view of the fact that there is to be a new trial.

We believe that we have covered all the contentions made by the defendant. We make this statement in this way because the defendant has not addressed her argument specifically to the exceptions which she took. The entry must be

Exceptions sustained.

Memorandum.

On the twenty-seventh day of January, 1915, the Honorable James Bernard Carroll, who had been one of the Justices of the Superior Court since December 16, 1914, was appointed a Justice of this court and sat as a single Justice at Springfield on February 1, 1915, first taking his seat with the full court at Boston on March 1, 1915. '