Lewis, P.,
delivered the opinion of the court.
The question to be determined is whether the letter of the defendant to the plaintiff, upon which the action is based, is a privileged communication; and that depends (1) upon whether it was written on a privileged occasion ; and if so, then (2) upon whether the occasion was used bona fide and without malice.
Ordinarily the law implies malice from the use of words defamatory or insulting. But the presumption is the other way where the occasion of the publication.is privileged, and the onus is then upon the plaintiff to prove malice in fact. Where the defendant acts in performance of a duty, legal or social, or in defence of his own interests, the occasion is privileged; and since the case of Toogood v. Spyring, 1 C., M. & R., 181, was decided, it has been settled law that a communication [557]*557made by a person in the conduct of his own affairs, where his interest is concerned, is privileged, if without malice. Whether or not such an interest exists as to make the occasion privileged is a question for the court, and if the occasion be held privileged, then it is for the jury to say whether it was used bona fide; and if found to be so, then the communication is privileged, and no action can be maintained upon it.
This was well expressed by the New York Court of Appeals in Klinck v. Colby, 46 N. Y., 427, where it is said : “ The court may determine whether the subject-matter to which the alleged libel relates, the interest in it of the defendant, or his relations to it, are such as to furnish the excuse. But the question of good faith, belief in the truth of the statement, and the existence of actual malice remains for the jury.” And in the same case it was said that where both the party making and the party receiving the communication have an interest in it, it has never been doubted that the communication, if made without actual malice, is protected.
It has been said by an eminent English judge that the rule leaving it to the court to decide whether the requisite interest or duty exists to make the occasion privileged, is an anomaly, on the ground that that question, like the question of honesty of purpose, which belongs to the jury, is purely a question of fact. But the existence of the rule was not denied, nor can it be successfully.
In some jurisdictions when the facts are uucontroverted, the court determines whether or not the communication is privileged — i. e., the case is withdrawn from the jury — but with us-the practice is to submit to the jury the question of malice,, where the occasion is privileged. Townsh. Sland. & L. (4th ed.), sec. 288; Chaffin v. Lynch, 83 Va., 106; S. C., 84 Id., 884..
It was, therefore, error on the part of the trial court in the present caseto leave to the jury the question whether the defendant had an interest in the subject matter of the communication in question; or, in the language of the instruction,. [558]*558whether he “ honestly believed he was entitled to the said notes”; for whether he had an interest or not, or, in other words, whether or not the occasion was privileged, was a question for the court to determine for itself; and we are unable to say that the jury were not misled by the instruction in the form in which it was given. If the defendant was not warranted in believing that he had an interest, the case was one of ordinary defamation, and the only question, apart from the question of damages, to be submitted to the jury was whether the words used were such as are usually construed as insulting and tending to violence and breach of the peace. Chaffin v. Lynch, supra.
But further than this, there was error in refusing to set aside the verdict, on the ground that it was not warranted by the evidence.
As a matter of fact, it is clear that the defendant honestly believed he had an interest in the notes, and that his object was to induce the plaintiff to surrender them. Indeed, some of the notes were taken for accounts due before the plaintiff became connected with the New Lira, and in which; for aught the record shows, he had no interest; and although he testified that “ these were compensated for by other accounts for subscriptions,” in which he had an interest, yet there is no proof that he was authorized to act for the defendant in any matter originating before the contract of March, 1889. It is true he says the defendant never questioned his right to collect such accounts, but che defendant knew nothing of his taking notes to himself for any such accounts before his return from Mississippi, in July, 1890, when he promptly denied the plaintiff’s right to do so.
In the next place, the letter having been written on a privileged occasion, it was incumbent on the plaintiff, according to the principles already stated, to repel the presumption that it was written with(oiif) malice, by showing that the defendant availed himself of the occasion, not for the purpose of protect[559]*559ing his interests, but to gratify some ill will independent- of the occasion, and to insult the plaintiff.
Now, there is no extrinsic evidence of malice, such as an antecedent grudge, or previous disputes, or anything of that sort, between the parties; but the contention is that the language used by the defendant is of itself evidence of malice. Undoubtedly strong or violent language disproportioned to the occasion may raise an inference of malice, and thus lose the privilege that otherwise would attach to it. But when the occasion is privileged the tendency of the courts is not to submit the words to a too strict scrutiny, but rather to view them in the light of the facts as they appeared to the defendant; for the question is, not whether the imputations are true, but whether the words are such as the defendant might have honestly employed under the circumstances. Odger’s Lib. and Sland., 277; Spill v. Maule, L. R., 4 Exch., 232; S. C., 20 L. T., 675; Clark v. Molyneux, 3 Q. B. Div., 237.
Now, in the ease at bar, the parties differed radically as to their respective rights under the contract in question. The plaintiff contended that he had a right to take notes or bonds payable to himself for all outstanding accounts, which the defendant as strenuously denied, especially as regarded accounts due before the date of the contract. Which was right, or what is the proper construction of the contract, it is not necessary to inquire, for be that as it may, under the circumstances of the ease, who can say that the defendant might not have honestly written the letter in question, wherein he speaks of a “ breach of trust,” making “ false entries,” etc. ? The plaintiff admits he made entries on the books as of “ cash received,” when in fact no money was collected, but notes were taken in his own name; and, while he explains that, in his opinion, he had the right to do this, it is equally certain that the defendant thought differently. And so when he testified that the imputations contained in the letter were “untrue and unfounded,” that was merely his own version of the matter; and, besides, if the defendant in good faith believed them to [560]*560be true, that ought to have ended the case. Chaffin v. Lynch, 84 Va., 884; Clark v. Molyneux, 3 Q. B. Div., 237.
The case of Spill v. Maule,
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Lewis, P.,
delivered the opinion of the court.
The question to be determined is whether the letter of the defendant to the plaintiff, upon which the action is based, is a privileged communication; and that depends (1) upon whether it was written on a privileged occasion ; and if so, then (2) upon whether the occasion was used bona fide and without malice.
Ordinarily the law implies malice from the use of words defamatory or insulting. But the presumption is the other way where the occasion of the publication.is privileged, and the onus is then upon the plaintiff to prove malice in fact. Where the defendant acts in performance of a duty, legal or social, or in defence of his own interests, the occasion is privileged; and since the case of Toogood v. Spyring, 1 C., M. & R., 181, was decided, it has been settled law that a communication [557]*557made by a person in the conduct of his own affairs, where his interest is concerned, is privileged, if without malice. Whether or not such an interest exists as to make the occasion privileged is a question for the court, and if the occasion be held privileged, then it is for the jury to say whether it was used bona fide; and if found to be so, then the communication is privileged, and no action can be maintained upon it.
This was well expressed by the New York Court of Appeals in Klinck v. Colby, 46 N. Y., 427, where it is said : “ The court may determine whether the subject-matter to which the alleged libel relates, the interest in it of the defendant, or his relations to it, are such as to furnish the excuse. But the question of good faith, belief in the truth of the statement, and the existence of actual malice remains for the jury.” And in the same case it was said that where both the party making and the party receiving the communication have an interest in it, it has never been doubted that the communication, if made without actual malice, is protected.
It has been said by an eminent English judge that the rule leaving it to the court to decide whether the requisite interest or duty exists to make the occasion privileged, is an anomaly, on the ground that that question, like the question of honesty of purpose, which belongs to the jury, is purely a question of fact. But the existence of the rule was not denied, nor can it be successfully.
In some jurisdictions when the facts are uucontroverted, the court determines whether or not the communication is privileged — i. e., the case is withdrawn from the jury — but with us-the practice is to submit to the jury the question of malice,, where the occasion is privileged. Townsh. Sland. & L. (4th ed.), sec. 288; Chaffin v. Lynch, 83 Va., 106; S. C., 84 Id., 884..
It was, therefore, error on the part of the trial court in the present caseto leave to the jury the question whether the defendant had an interest in the subject matter of the communication in question; or, in the language of the instruction,. [558]*558whether he “ honestly believed he was entitled to the said notes”; for whether he had an interest or not, or, in other words, whether or not the occasion was privileged, was a question for the court to determine for itself; and we are unable to say that the jury were not misled by the instruction in the form in which it was given. If the defendant was not warranted in believing that he had an interest, the case was one of ordinary defamation, and the only question, apart from the question of damages, to be submitted to the jury was whether the words used were such as are usually construed as insulting and tending to violence and breach of the peace. Chaffin v. Lynch, supra.
But further than this, there was error in refusing to set aside the verdict, on the ground that it was not warranted by the evidence.
As a matter of fact, it is clear that the defendant honestly believed he had an interest in the notes, and that his object was to induce the plaintiff to surrender them. Indeed, some of the notes were taken for accounts due before the plaintiff became connected with the New Lira, and in which; for aught the record shows, he had no interest; and although he testified that “ these were compensated for by other accounts for subscriptions,” in which he had an interest, yet there is no proof that he was authorized to act for the defendant in any matter originating before the contract of March, 1889. It is true he says the defendant never questioned his right to collect such accounts, but che defendant knew nothing of his taking notes to himself for any such accounts before his return from Mississippi, in July, 1890, when he promptly denied the plaintiff’s right to do so.
In the next place, the letter having been written on a privileged occasion, it was incumbent on the plaintiff, according to the principles already stated, to repel the presumption that it was written with(oiif) malice, by showing that the defendant availed himself of the occasion, not for the purpose of protect[559]*559ing his interests, but to gratify some ill will independent- of the occasion, and to insult the plaintiff.
Now, there is no extrinsic evidence of malice, such as an antecedent grudge, or previous disputes, or anything of that sort, between the parties; but the contention is that the language used by the defendant is of itself evidence of malice. Undoubtedly strong or violent language disproportioned to the occasion may raise an inference of malice, and thus lose the privilege that otherwise would attach to it. But when the occasion is privileged the tendency of the courts is not to submit the words to a too strict scrutiny, but rather to view them in the light of the facts as they appeared to the defendant; for the question is, not whether the imputations are true, but whether the words are such as the defendant might have honestly employed under the circumstances. Odger’s Lib. and Sland., 277; Spill v. Maule, L. R., 4 Exch., 232; S. C., 20 L. T., 675; Clark v. Molyneux, 3 Q. B. Div., 237.
Now, in the ease at bar, the parties differed radically as to their respective rights under the contract in question. The plaintiff contended that he had a right to take notes or bonds payable to himself for all outstanding accounts, which the defendant as strenuously denied, especially as regarded accounts due before the date of the contract. Which was right, or what is the proper construction of the contract, it is not necessary to inquire, for be that as it may, under the circumstances of the ease, who can say that the defendant might not have honestly written the letter in question, wherein he speaks of a “ breach of trust,” making “ false entries,” etc. ? The plaintiff admits he made entries on the books as of “ cash received,” when in fact no money was collected, but notes were taken in his own name; and, while he explains that, in his opinion, he had the right to do this, it is equally certain that the defendant thought differently. And so when he testified that the imputations contained in the letter were “untrue and unfounded,” that was merely his own version of the matter; and, besides, if the defendant in good faith believed them to [560]*560be true, that ought to have ended the case. Chaffin v. Lynch, 84 Va., 884; Clark v. Molyneux, 3 Q. B. Div., 237.
The case of Spill v. Maule, in the Exchequer Chamber, before referred to, is much in point. There the defendant, who was interested as a creditor oí a firm of which the plaintifi was a member, wrote another creditor of the firm that the plaintiff had been guilty of “ most disgraceful and dishonest ” conduct, which had resulted in materially diminishing the assets of the concern. In an action for libel it was held that although the language used was strong, yet the occasion was privileged, and therefore the defendant, in the absence of proof to the contrary, must be presumed to have honestly believed in the truth of what he wrote, and hence there could be no recovery. “It is not for us to say,” said Lord Chief Justice Coekburn, “ whether the plaintiff acted honestly or dishonestly; with propriety or disgracefully. All that we have to look to is whether or not there is a valid legal presumption that the defendant only stated that which he honestly believed; and if there be, then he would not be liable in this action, and, in the absence of positive proof to the contrary, there would be nothing to go to the jury.”
Applying this test to the present case, we are of opinion that the verdict ought to have been for the defendant; that is to say, the presumption that he acted without malice is not rebutted by the evidence. We come to this conclusion with the less hesitation because here there is no conflict of evidence, or question as to the credibility of witnesses. Only one witness was examined, and from his evidence the facts of the case appear, thus affording the appellate court the same opportunity to draw correct conclusions as the trial court and the jury possessed. Fisher v. Vanmeter, 9 Leigh, 18; Slaughter v. Tutt, 12 Id., 147, 160.
The judgment must, therefore, be reversed., and the case remanded for a new trial.
Judgment reversed.