Washburn v. Cooke

3 Denio 110

• Court: New York Supreme Court
• Decided: May 15, 1846
• Status: Published

Opinion

By the Court, Bronson, Ch. J.

If the letter was not a privileged communication.—if there was nothing in the occasion of writing it to distinguish this from the ordinary case of making a slanderous charge against another—the judge was clearly right in his instruction to the jury. In the common case of a libellous publication, or the use of slanderous words, the charge of malice in the declaration calls for no proof on the part of the plaintiff, beyond what may be inferred from the injurious nature of the accusation. The principle is a broad one. In all cases where a man intentionally does a wrongful act, without just cause or excuse, the law implies a malicious intent towards the party who may be injured; and that is so, even though the wrongdoer may not have known at the time on whom the blow would fall. But in actions for defamation, if it appear that the defendant had some just occasion for speaking of the plaintiff, malice is not a necessary inference, from what, under other circumstances, would be a slanderous charge; and it will often be necessary for the plaintiff to give other evidence of a malicious intent. There may be many of these privileged communications ; as where the charge is made in giving the character of a servant; or in a regular course of discipline between members of the same church; in answering an inquiry concerning the solvency of a tradesman, or banker; or where the communication was confidential, between persons having a common interest in the subject to which it relates. In these, and other cases of the same nature, the general rule is, that malice is not to be inferred from the publication alone. The plaintiff must go further, and show that the defendant was governed by a bad motive : that he did not act in good faith, but took advantage of the occasion to injure the plaintiff in his character or standing. These principles are sufficiently exemplified in the cases cited by the defendant’s counsel.

In this case, it may be collected from the evidence given, and that which was offered and rejected, that the sheriff had made a levy upon certain cattle, which had afterwards been wrongfully driven away, in consequence of which the sheriff was likely to suffer damage: that the sheriff thereupon employed the defendant to ascertain and inform him of the facts in relation to the wrong which had been done, and to advise what course it was best to pursue: and that the defendant wrote the letter-in question to his employer, concerning the subject matter of his employment. It was the communication of an agent to his principal, touching the business of his agency, and not going beyond it. The charge of larceny, of which the plaintiff complains, was directly pertinent to the matter in hand; and I think the letter must be regarded as a privileged communication. The occasion upon which it was written sufficiently rebuts the-inference of malice, which, under other circumstances, would-have arisen from the injurious nature of the charge. In such a, case, although there may be no proof of the truth of the accusation, and even though it may be shown to be false, the jury are not to render a verdict for the plaintiff as a matter of course. They must first be satisfied, on looking at the whole case, that-the defendant did not act honestly and in good faith, but intended to do a wanton injury to the plaintiff.

Although the defendant was neither an attorney nor counsellor at law, he may have been quite competent to ascertain the facts concerning the driving off of the cattle, and to express an opinion upon the question whether the taking was felonious.

It follows from what has been said, that the evidence offered by the defendant should not have been rejected.

New trial granted.