CLARK, C. J., and WALKER and CONNOR, J. J., concurring.
At the conclusion of the evidence, upon an intimation from his Honor that he would charge the jury that, if they believed the evidence, the mailing of the postal card declared upon was qualifiedly (39) privileged, that the burden of showing malice was upon the plaintiff, and that there was no evidence of actual malice, the plaintiff, having duly excepted, submitted to a nonsuit and appealed.
As gathered from the record, the facts upon which the plaintiff bases his right of action are as follows: The plaintiff was the treasurer of Yadkin County at the time the cause of action arose, having been elected to said office at the regular election on 6 November, 1904. As such treasurer he had in his hands, belonging to said county, the sum of $4,139.09 and other moneys in cash, and had the same securely locked in an iron safe in his store in the town of Yadkinville, the county-seat of Yadkin; and on the night of 6 September, 1904, the storehouse in which the said safe was located was broken into and said safe, containing said funds and moneys, was blown open by unknown parties, supposed to be burglars, and robbed of its contents. On 9 September, 1904, the defendant J. D. Hodges wrote a postal card to one A. J. Martin and sent same through the United States mails from some point in Davie County to Longtown postoffice, in Yadkin County, the contents of the card being as follows:
DEAR SIR: — From conversation I have had with a gentleman from Davie County who was in Yadkinville the day after the robbery, I believe the guilty men live in Yadkinville. Turn your searchlights on your treasurer and the man that boards with him and the postmaster, and you will find where the money went.
Yours truly, J. D. HODGES.
Augusta, N.C. 9 Sept., 1904.
(40) The defendant was at that date superintendent of public instruction and a resident of Davie County, and the addressee of the postal card, Martin, held the same office in Yadkin County.
1. That the words written upon the postal card are of such character as makes them actionable per se is hardly debatable. They plainly imply the commission of a crime which not only involves moral turpitude and is punishable by imprisonment, which is sufficient to make
words actionable per se, but, under the law of this State, constitutes a felony, punishable by imprisonment in the State's Prison. Odger Libel and Slander, p. 2, 53-56; Brayne v. Cooper, 5 M. W., 249; Posnett v. Marble,62 Vt. 486, and cases cited.
2. That there was a publication of the libel is proven by the testimony of the addressee, who testifies he received it in the mail, as well as by the testimony of the carrier and others. Communications in the nature of telegrams and postal cards containing defamatory matter, transmitted in the usual manner, are necessarily liable to be communicated to all the clerks through whose hands they pass. Newell on Slander and Libel, p. 233. The exact question was decided by the Supreme Court of Tennessee. In that case a clerk in one bank wrote on a postal card and mailed it to a correspondent bank in reference to a draft held for collection by the former for the latter: "Bowdie in the hands of a notary." The Court held it to be a publication, and that the words, being false, were libelous and actionable per se, without proof of special damage. This case is cited with approval by Newell, supra, note, p. 233. Besides it is to be noted that the very method of making this communication adopted by defendant is prohibited by law and made a crime against the United States, for the evident reason of its publicity. While the Government may legislate against the reading of postal cards by those through whose hands they pass, it, nevertheless, recognizes the frailty of human nature, and prohibits the mailing of postal cards containing defamatory matter, under severe (41) penalties. United States Complied Statutes 1901, Vol. II, p. 1661.
3. The occasion of the publication was neither absolutely nor qualifiedly privileged. It is contended by the learned counsel for defendant that the occasion was qualifiedly privileged, because the communication concerned a public official of the county of Yadkin and was written in the public interest. We admit the general proposition that it is the duty of all who witness or have knowledge of the misconduct of any public officer to bring such misconduct to the notice of those whose duty it is to inquire into it, but the complaining party must be careful to apply to some person who has jurisdiction to entertain the complaint, or power to redress the grievance, or some duty to perform, or interest in connection with it. Newell on Slander and Libel, pp. 504 and 505; Neyley v.Farrow, 60 Md. 158; Lansing v. Carpenter, 9 Wis. 540; Hamilton v. Eno.,81 N.Y. 116. To illustrate: Words charging a party with theft, spoken in good faith, under a belief of their truth and with probable cause, to apolice officer employed to detect the robber, are in the nature of a privileged communication. Smith v. Kerr, 1 Edm. N.Y. Select Cases, 190. So, a letter accusing a school mistress of unchastity, written
in good faith to the school committee, is privileged, so as to put the burden on plaintiff to show actual malice. Bodwell v. Osgood, 3 Pick. (Mass.), 379.
The A. E. Enc. states the law as follows: "A communication in regard to the character or conduct of a public official is privileged if addressed to a functionary having the authority to redress grievances or to remove the official from office, and, for the purpose of making such communication, every citizen is regarded as having an interest or duty in the subject-matter. But a communication addressed to a third person having no such authority is not privileged." (42) 18 A. E. Enc. (2 Ed.), p. 1040. The author has there collected many adjudications on the subject. In commenting on the subject Mr. Odger says: "But in seeking redress the defendant must be careful to apply to some person who has jurisdiction to entertain the complaint or power to redress the grievance. Statements made to some stranger who has nothing to do with the matter cannot be privileged." Page 222. Newell, p. 475; Folkard Starkie, sec. 294, p. 356. Bryan v.Collins, 11 N.Y. 150, is a full and instructive, case. To the same effect are the rulings of the English courts. Dickerson v. Hilliard, 9 Exchequer L. R., 79.
In Bragg v. Sturt, it was held by the Court of Queen's Bench, in an action for libel, that a letter to the Secretary of State by an inhabitant of a borough, imputing corruption in office to a person who is town clerk and clerk to the justices of the borough, is not a privileged communication. 593 C. L., 899. Lord Denman, delivering judgment, said: "We are of opinion that the defendant was not exempt from responsibility for that which would otherwise be a libel by reason of its being an application to a competent tribunal for redress, because the Secretary of State has no direct authority in respect to the matter complained of, and was not a competent tribunal to received the application."
In Harrison, v. Bush, 5 Ellis and Black (Q. B.), 344, the rule is thus stated: "A communication made bona fide
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CLARK, C. J., and WALKER and CONNOR, J. J., concurring.
At the conclusion of the evidence, upon an intimation from his Honor that he would charge the jury that, if they believed the evidence, the mailing of the postal card declared upon was qualifiedly (39) privileged, that the burden of showing malice was upon the plaintiff, and that there was no evidence of actual malice, the plaintiff, having duly excepted, submitted to a nonsuit and appealed.
As gathered from the record, the facts upon which the plaintiff bases his right of action are as follows: The plaintiff was the treasurer of Yadkin County at the time the cause of action arose, having been elected to said office at the regular election on 6 November, 1904. As such treasurer he had in his hands, belonging to said county, the sum of $4,139.09 and other moneys in cash, and had the same securely locked in an iron safe in his store in the town of Yadkinville, the county-seat of Yadkin; and on the night of 6 September, 1904, the storehouse in which the said safe was located was broken into and said safe, containing said funds and moneys, was blown open by unknown parties, supposed to be burglars, and robbed of its contents. On 9 September, 1904, the defendant J. D. Hodges wrote a postal card to one A. J. Martin and sent same through the United States mails from some point in Davie County to Longtown postoffice, in Yadkin County, the contents of the card being as follows:
DEAR SIR: — From conversation I have had with a gentleman from Davie County who was in Yadkinville the day after the robbery, I believe the guilty men live in Yadkinville. Turn your searchlights on your treasurer and the man that boards with him and the postmaster, and you will find where the money went.
Yours truly, J. D. HODGES.
Augusta, N.C. 9 Sept., 1904.
(40) The defendant was at that date superintendent of public instruction and a resident of Davie County, and the addressee of the postal card, Martin, held the same office in Yadkin County.
1. That the words written upon the postal card are of such character as makes them actionable per se is hardly debatable. They plainly imply the commission of a crime which not only involves moral turpitude and is punishable by imprisonment, which is sufficient to make
words actionable per se, but, under the law of this State, constitutes a felony, punishable by imprisonment in the State's Prison. Odger Libel and Slander, p. 2, 53-56; Brayne v. Cooper, 5 M. W., 249; Posnett v. Marble,62 Vt. 486, and cases cited.
2. That there was a publication of the libel is proven by the testimony of the addressee, who testifies he received it in the mail, as well as by the testimony of the carrier and others. Communications in the nature of telegrams and postal cards containing defamatory matter, transmitted in the usual manner, are necessarily liable to be communicated to all the clerks through whose hands they pass. Newell on Slander and Libel, p. 233. The exact question was decided by the Supreme Court of Tennessee. In that case a clerk in one bank wrote on a postal card and mailed it to a correspondent bank in reference to a draft held for collection by the former for the latter: "Bowdie in the hands of a notary." The Court held it to be a publication, and that the words, being false, were libelous and actionable per se, without proof of special damage. This case is cited with approval by Newell, supra, note, p. 233. Besides it is to be noted that the very method of making this communication adopted by defendant is prohibited by law and made a crime against the United States, for the evident reason of its publicity. While the Government may legislate against the reading of postal cards by those through whose hands they pass, it, nevertheless, recognizes the frailty of human nature, and prohibits the mailing of postal cards containing defamatory matter, under severe (41) penalties. United States Complied Statutes 1901, Vol. II, p. 1661.
3. The occasion of the publication was neither absolutely nor qualifiedly privileged. It is contended by the learned counsel for defendant that the occasion was qualifiedly privileged, because the communication concerned a public official of the county of Yadkin and was written in the public interest. We admit the general proposition that it is the duty of all who witness or have knowledge of the misconduct of any public officer to bring such misconduct to the notice of those whose duty it is to inquire into it, but the complaining party must be careful to apply to some person who has jurisdiction to entertain the complaint, or power to redress the grievance, or some duty to perform, or interest in connection with it. Newell on Slander and Libel, pp. 504 and 505; Neyley v.Farrow, 60 Md. 158; Lansing v. Carpenter, 9 Wis. 540; Hamilton v. Eno.,81 N.Y. 116. To illustrate: Words charging a party with theft, spoken in good faith, under a belief of their truth and with probable cause, to apolice officer employed to detect the robber, are in the nature of a privileged communication. Smith v. Kerr, 1 Edm. N.Y. Select Cases, 190. So, a letter accusing a school mistress of unchastity, written
in good faith to the school committee, is privileged, so as to put the burden on plaintiff to show actual malice. Bodwell v. Osgood, 3 Pick. (Mass.), 379.
The A. E. Enc. states the law as follows: "A communication in regard to the character or conduct of a public official is privileged if addressed to a functionary having the authority to redress grievances or to remove the official from office, and, for the purpose of making such communication, every citizen is regarded as having an interest or duty in the subject-matter. But a communication addressed to a third person having no such authority is not privileged." (42) 18 A. E. Enc. (2 Ed.), p. 1040. The author has there collected many adjudications on the subject. In commenting on the subject Mr. Odger says: "But in seeking redress the defendant must be careful to apply to some person who has jurisdiction to entertain the complaint or power to redress the grievance. Statements made to some stranger who has nothing to do with the matter cannot be privileged." Page 222. Newell, p. 475; Folkard Starkie, sec. 294, p. 356. Bryan v.Collins, 11 N.Y. 150, is a full and instructive, case. To the same effect are the rulings of the English courts. Dickerson v. Hilliard, 9 Exchequer L. R., 79.
In Bragg v. Sturt, it was held by the Court of Queen's Bench, in an action for libel, that a letter to the Secretary of State by an inhabitant of a borough, imputing corruption in office to a person who is town clerk and clerk to the justices of the borough, is not a privileged communication. 593 C. L., 899. Lord Denman, delivering judgment, said: "We are of opinion that the defendant was not exempt from responsibility for that which would otherwise be a libel by reason of its being an application to a competent tribunal for redress, because the Secretary of State has no direct authority in respect to the matter complained of, and was not a competent tribunal to received the application."
In Harrison, v. Bush, 5 Ellis and Black (Q. B.), 344, the rule is thus stated: "A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained criminatory matter which, without this privilege, would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation."
This has been generally approved by judges and text-writers since. In Toogood v. Springs, 1 Cr., M. R. (Ex.), 181, quoted in Bryanv. Collins, supra, and commended by Folger, J., in Klench v. Colby, 46 N.Y. 427, and in Hamilton v. Eno, 81 N.Y. 116, it is said (43) that the law considered a libelous "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 and in matters where his interest is concerned."
As privileged communications are exceptions to the general rule which implies malice in a libelous publication and infers some damage, it rests with the party claiming the privilege to show that the case is brought within the exception. In this case the defendant has wholly failed to show such facts and circumstances as will give him the protection of either and absolute or a qualified privilege.
4. The defendant having failed to plead justification, that defense is not open to him, even if he had any evidence to support such a plea. It therefore follows that his Honor erred in his intimation. He should have instructed the jury that if the evidence is believed by them to be true, and the facts found as testified to by the witnesses, the plaintiff is entitled to recover some damages. Of course, upon all the authorities, the defendant having pleaded his good faith and lack of actual malice in mitigation of damages, it is open to him to offer testimony of that character, as well as other competent and pertinent facts tending to mitigate the damage. Damages may be mitigated by showing the general bad character of plaintiff, by showing any circumstances which tends to disprove malice, but do not tend to prove the truth of the charge. In his valuable work on slander and libel, Mr. Newell has published the headnotes of a large number of cases which admirably illustrate how this rule of mitigation of damages has been applied, and what facts and circumstances have been admitted in evidence under it. In actions for libel juries have great latitude in the matter of damages. They may, and sometimes do, award nominal damages only, and then again substantial damages, and in some cases exemplary damages by way of punishment.
In such actions juries are authorized to give such exemplary (44) damages as the circumstances justify when the evidence shows that the publication (as expressed by the Supreme Court of the United States) "was the result of that reckless indifference to the rights of others which is equivalent to the intentional violation of them." (R. R.,v. Arms, 91 U.S. 489), or "when the act complained of was conceived in the spirit of mischief or of criminal indifference to civil obligations."R. R. v. Quigley, 21 How., 213.
New trial.