Rice, P. J.,
Opinion by (after stating the facts as found in the statement of facts) :
The learned trial judge instructed the jury that the plaintiff could not recover unless the evidence satisfied them that the words were spoken of and concerning the plaintiff, and that in uttering them the defendant “ was impelled, not by his obligation of duty as a member of council, but by actual malice against the plaintiff.” We quote further from the charge: “If, on the other hand, the impelling motive which caused him to make the charge was not a desire honestly to perform his duty to the borough, but was a desire to vent his malice and spleen upon the plaintiff, then he would be liable, just as if he had not been a member of council. And that, I say, is the point of this case. Did he do it in the honest belief that it was necessary in the proper performance of his duty as a member .of council ? If he did, there can he no recovery. And in this view of the case, it does not matter whether he was a friend or enemy of the plaintiff. He was under just as much obligation to protect the borough against a party whom he did not like as to protect the borough against a party who was a friend of his. The question of their relations is only of moment here in so far as it helps to solve the question whether his impelling motive in making this declaration was a sense of duty to the borough, or was malice towards the plaintiff.” As the jury found in favor of the plaintiff, and as there was affirmative evidence outside the occurrences above narrated to warrant the submission to them of the questions of malice and good faith (see 184 Pa. 116), the question for our consideration -is, whether or not the defendant was exempt from liability to action on the ground of privilege, even though in uttering the defamatory words he was not acting in good faith but was actuated by express malice towards the plaintiff ?
[188]*188The law recognizes two classes of cases in which the occasion either supplies an absolute defense', or a defense subject to the condition that the party acted bona fide without malice. The distinction turns entirely on the question of malice. The communications last mentioned lose their privilege on proof of express malice. The former depend in no respect for their protection upon the bona fides of the defendant. The occasion is an absolute privilege, and the only questions are whether the occasion existed, and whether the matter complained o? was pertinent to the occasion. The foregoing statement of general •principles is taken from 2 Bouvier’s L. Diet. (Rawle’s ed.) 756, and is sustained by the authorities. Whether a communication is, or is not, privileged by reason of the occasion, is a question for the judge alone, where there is no dispute as to the circumstances under which it was made. If there be any doubt as to these circumstances, the jury must find what the circumstances in fact were, or what the defendant honestly believed them to be if that be the point to be determined; and then on their findings, the judge decides whether the occasion was privileged or not: Odgers on Libel and Slander, * 185 ; Briggs v. Garrett, 111 Pa. 404. The same is true where the pertinency of the utterance to the occasion is the question.
The learned trial judge decided upon the defendant’s motion for judgment non obstante veredicto that under the undisputed facts of this case the occasion was absolutely privileged, and that the defendant’s statement was pertinent to the occasion. He states the case thus: “ The words upon which the action is based, according to the undisputed testimony, by witnesses of both plaintiff and defendant, were spoken by a member of a borough council, at a meeting of the council, in the discussion of a matter regularly before the house, and with respect to a matter which was open for discussion and upon which it was the duty of council to pass. The statement was of a matter of which, if true, it was proper and important that the members of council should be informed.” This summary of the facts and the legal conclusion based thereon are attacked on the grounds : first, that the matter of the plaintiff’s claim was not regularly before the council for action, therefore the occasion was not privileged; second, that the defamatory words spoken by the defendant were not pertinent to the occasion; [189]*189and third, that the occasion was at the most, one of qualified, •not absolute, privilege, therefore the plaintiff could maintain the action upon proof of express malice.
Was the matter of the plaintiff’s claim regularly before the council for discussion and action ? In disposing of the appeal taken from the judgment of nonsuit entered on the first trial oE this case, Justice Gkeen, speaking for the Supreme Court said, that, “ even in the recognized cases of absolute privilege, it is not enough that the slanderous words were uttered in a legislative hall or in a court of justice to establish a claim to absolute privilege. A further reference must be had to the circumstances and to the occasion of the particular occurrence, before the question can be determined:” 184 Pa. 108. We have given the circumstances under which the words were uttered, and if the case rested here our duty would be plain. Upon substantially the same evidence the Supreme Court held it to be error for the trial court to assume as an undisputed fact that the words were uttered in the course of debate on a matter regularlybefore the council for discussion and action. We quote from Justice Gkeen’s opinion: “Now the question whether the slanderous words were uttered during the course of a debate in a legislative body is certainly not a question of law, If it were an undisputed question of fact, the court might pronounce upon it.” Again he says: “We have already alluded to the testimony as bearing upon the question whether the words were uttered in debate upon a pending motion. The weight of the evidence on that subject is in the negative, and hence its solution would have to be referred to the jury.” The plain implication from these remarks is that if the jury decided this question in the negative, the court could not declare as matter of law that the defamatory words were absolutely privileged even though they were uttered at a regular meeting of council and were pertinent to the matter contained in the oral report submitted by the chairman of the committee.
It is thought that the case presents a different aspect now from what it did when it was first tried, because it was shown on the trial before us for review that it was the usage in the meetings of this council to discuss matters affecting the* borough without any motion being made, and then make a motion afterwards, If is not clear that the question whether there [190]*190was or was not such a usage was not for the jury. For while one member of council testified to the effect above stated, another member testified, as we have'shown, that “there was no motion or anything before council,” thus inferentially declaring that the remarks were out of order under the usages of council. Granting, however, that there was such a usage, how does that affect the question? It is to be observed that there is no evidence that the matter of the plaintiff’s claim had been referred to the finance committee by the borough council. So far as appears their recommendation that the claim be paid was purely voluntary. It bound no one, and in legal effect upon the question now for determination was the same as if the chairman had made the recommendation upon his own responsibility. It did not of itself call for any action on the part of the borough council.
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Rice, P. J.,
Opinion by (after stating the facts as found in the statement of facts) :
The learned trial judge instructed the jury that the plaintiff could not recover unless the evidence satisfied them that the words were spoken of and concerning the plaintiff, and that in uttering them the defendant “ was impelled, not by his obligation of duty as a member of council, but by actual malice against the plaintiff.” We quote further from the charge: “If, on the other hand, the impelling motive which caused him to make the charge was not a desire honestly to perform his duty to the borough, but was a desire to vent his malice and spleen upon the plaintiff, then he would be liable, just as if he had not been a member of council. And that, I say, is the point of this case. Did he do it in the honest belief that it was necessary in the proper performance of his duty as a member .of council ? If he did, there can he no recovery. And in this view of the case, it does not matter whether he was a friend or enemy of the plaintiff. He was under just as much obligation to protect the borough against a party whom he did not like as to protect the borough against a party who was a friend of his. The question of their relations is only of moment here in so far as it helps to solve the question whether his impelling motive in making this declaration was a sense of duty to the borough, or was malice towards the plaintiff.” As the jury found in favor of the plaintiff, and as there was affirmative evidence outside the occurrences above narrated to warrant the submission to them of the questions of malice and good faith (see 184 Pa. 116), the question for our consideration -is, whether or not the defendant was exempt from liability to action on the ground of privilege, even though in uttering the defamatory words he was not acting in good faith but was actuated by express malice towards the plaintiff ?
[188]*188The law recognizes two classes of cases in which the occasion either supplies an absolute defense', or a defense subject to the condition that the party acted bona fide without malice. The distinction turns entirely on the question of malice. The communications last mentioned lose their privilege on proof of express malice. The former depend in no respect for their protection upon the bona fides of the defendant. The occasion is an absolute privilege, and the only questions are whether the occasion existed, and whether the matter complained o? was pertinent to the occasion. The foregoing statement of general •principles is taken from 2 Bouvier’s L. Diet. (Rawle’s ed.) 756, and is sustained by the authorities. Whether a communication is, or is not, privileged by reason of the occasion, is a question for the judge alone, where there is no dispute as to the circumstances under which it was made. If there be any doubt as to these circumstances, the jury must find what the circumstances in fact were, or what the defendant honestly believed them to be if that be the point to be determined; and then on their findings, the judge decides whether the occasion was privileged or not: Odgers on Libel and Slander, * 185 ; Briggs v. Garrett, 111 Pa. 404. The same is true where the pertinency of the utterance to the occasion is the question.
The learned trial judge decided upon the defendant’s motion for judgment non obstante veredicto that under the undisputed facts of this case the occasion was absolutely privileged, and that the defendant’s statement was pertinent to the occasion. He states the case thus: “ The words upon which the action is based, according to the undisputed testimony, by witnesses of both plaintiff and defendant, were spoken by a member of a borough council, at a meeting of the council, in the discussion of a matter regularly before the house, and with respect to a matter which was open for discussion and upon which it was the duty of council to pass. The statement was of a matter of which, if true, it was proper and important that the members of council should be informed.” This summary of the facts and the legal conclusion based thereon are attacked on the grounds : first, that the matter of the plaintiff’s claim was not regularly before the council for action, therefore the occasion was not privileged; second, that the defamatory words spoken by the defendant were not pertinent to the occasion; [189]*189and third, that the occasion was at the most, one of qualified, •not absolute, privilege, therefore the plaintiff could maintain the action upon proof of express malice.
Was the matter of the plaintiff’s claim regularly before the council for discussion and action ? In disposing of the appeal taken from the judgment of nonsuit entered on the first trial oE this case, Justice Gkeen, speaking for the Supreme Court said, that, “ even in the recognized cases of absolute privilege, it is not enough that the slanderous words were uttered in a legislative hall or in a court of justice to establish a claim to absolute privilege. A further reference must be had to the circumstances and to the occasion of the particular occurrence, before the question can be determined:” 184 Pa. 108. We have given the circumstances under which the words were uttered, and if the case rested here our duty would be plain. Upon substantially the same evidence the Supreme Court held it to be error for the trial court to assume as an undisputed fact that the words were uttered in the course of debate on a matter regularlybefore the council for discussion and action. We quote from Justice Gkeen’s opinion: “Now the question whether the slanderous words were uttered during the course of a debate in a legislative body is certainly not a question of law, If it were an undisputed question of fact, the court might pronounce upon it.” Again he says: “We have already alluded to the testimony as bearing upon the question whether the words were uttered in debate upon a pending motion. The weight of the evidence on that subject is in the negative, and hence its solution would have to be referred to the jury.” The plain implication from these remarks is that if the jury decided this question in the negative, the court could not declare as matter of law that the defamatory words were absolutely privileged even though they were uttered at a regular meeting of council and were pertinent to the matter contained in the oral report submitted by the chairman of the committee.
It is thought that the case presents a different aspect now from what it did when it was first tried, because it was shown on the trial before us for review that it was the usage in the meetings of this council to discuss matters affecting the* borough without any motion being made, and then make a motion afterwards, If is not clear that the question whether there [190]*190was or was not such a usage was not for the jury. For while one member of council testified to the effect above stated, another member testified, as we have'shown, that “there was no motion or anything before council,” thus inferentially declaring that the remarks were out of order under the usages of council. Granting, however, that there was such a usage, how does that affect the question? It is to be observed that there is no evidence that the matter of the plaintiff’s claim had been referred to the finance committee by the borough council. So far as appears their recommendation that the claim be paid was purely voluntary. It bound no one, and in legal effect upon the question now for determination was the same as if the chairman had made the recommendation upon his own responsibility. It did not of itself call for any action on the part of the borough council. It was to be expected, perhaps, that at that, or some subsequent meeting, a motion might be made to carry out the recommendation of the committee, but no such motion had been made, and there was no certainty that one would be made. Until it was made there was nothing before the meeting calling for the action of council, and the recommendation of the committee and the remarks of the president in support of it went for naught. Therefore, it is no clearer now than it was on the first trial that the defamatory words were uttered in the course of debate upon a pending matter upon which it was the duty of council to act. If the uncontradicted evidence had been that under the usage of this council the matter was before council for its action, as for example that a vote might be called for by the chairman or by any member without formal motion, or that his oral report was equivalent to a motion, a different question would be presented. It might then be argued with some plausibility that the privilege of the members was the same as if a formal motion had been made. But as the case stands, the court could not declare as a matter of law from the undisputed facts that the occasion had arisen in which from reasons of public policy — to secure freedom of debate upon matters pending in council affecting thecborough — the law gives to members ot' such a body absolute immunity from liability for false and defamatory utterances where the impelling motive of the same was not a sense of duty to the borough, but actual malice towards the plaintiff, [191]*191It must be always borne in mind that the rule as to absolute privilege is not to protect malicious and untruthful persons but that it is intended to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions : Munster v. Lamb, 11 Q. B. Div. 588. Or as the idea was expressed by another judge in the same case, it is better to make the rule so large that an innocent person shall never be troubled, although by making it so large persons are included who have been guilty of malice and misconduct. It is deemed better that innocent individuals shall suffer unjust defamation of character rather than that the privileges of debate should be curtailed. We do not question the wisdom of the rule as applied to debates in even such minor legislative bodies as’ borough councils. This is fully vindicated in the able opinion of the learned judge of the court below. We do however question the wisdom of extending the rule to cases not fairly within its reason. There are not many cases in which public policy forbids the plaintiff to prove that the defendant did not act under the privilege, that he did not intend honestly to discharge a duty, but maliciously availed himself of the occasion to injure the plaintiff’s reputation; nor, it has been justly said, is it desirable that there should be many. The courts refuse to extend their number: Stevens v. Sampson, 5 L. R. Ex. Div. 53: Odgers on Libel and Slander, *185. Granting that what is said in the course of debate of a pending measure in a borough council upon which the members are to vote is absolutely privileged, no reason based on public policy requires that the same immunity should be extended to everything that is said in every irregular or disorderly discussion that may arise at the meetings of council. Nor does the fact that it is customary in a particular borough council for the members to engage in such discussion of matters that may come up for action but are not then pending, and may never arise, require that the rule as to absolute privilege be extended thereto. The most that can be urged in defense of defamatory words uttered in such informal, not to say irregular and disorderly discussion of borough matters as was shown in this case is, that they are qualifiedly privileged and therefore the burden was on the plaintiff to prove that the defendant was not acting in good [192]*192faith but was actuated by express malice towards the plaintiff. It follows that there was error in entering judgment for the defendant notwithstanding the verdict.
The judgment is reversed and judgment is now directed for the plaintiff on the verdict.
W. D. Porter, J., dissents.