Opinion
May Term, 1896.
T.F. Hamilton, for the appellant.
J.W. Houghton, for the respondent.
The defendant said to the excise commissioner of the town in which both the plaintiff and the defendant lived, in substance, that the plaintiff kept a house of ill-fame, and that upon that account the defendant protested against the board of excise granting to the plaintiff a hotel license to sell liquor. The question of granting the license was before the board, or about to come before it. The words were not spoken in the hearing of any other person. The words were actionable per se, unless privileged. The presumption arising from the occasion, from the defendant's relation to the subject and his interest in it, from the official character of the person to whom the communication was made, is that the communication was privileged. ( Decker v. Gaylord, 35 Hun, 584; Van Wyck v. Aspinwall, 17 N.Y. 193; Lewis v. Chapman, 16 id. 369; Fowles v. Bowen, 30 id. 20; Klink v. Colby, 46 id. 427; Hamilton v. Eno, 81 id. 116; Moore v. Mfrs. National Bank, 123 id. 420; Hemmens v. Nelson, 138 id. 517.)
"Where a person is so situated that it becomes right in the interests of society that he should tell to a third person certain facts, then if he, bona fide and without malice, does tell them it is a privileged communication." BLACKBURN, J., in Davies v. Snead (L.R. [5 Q.B.C.] 611), quoted and approved in Moore v. Mfrs. National Bank ( supra).
But if instead of speaking the words in good faith, and in the public interest, the defendant speaks them maliciously and with the intent to injure the plaintiff, then the privilege is lost and the defendant stands before the court as a common slanderer, and, unless he can prove the truth of his words, he has not a complete defense, however much he may prove in mitigation of their severity, for he cannot be permitted to pose before the court as the champion of public virtue when his real purpose is to injure the plaintiff.
The words being upon the evidence presumptively privileged, the burden then rested upon the plaintiff to prove that the defendant did speak them maliciously. This could not be done by simply showing that the words were false, because the presumption of good faith, which privilege supplies, repels the idea of malice, the presumption being that the defendant is only honestly in error. (Cases, supra.)
The plaintiff attempted to prove express malice by showing such words and conduct of the defendant in respect to other matters as tended to show that his enmity to the plaintiff was settled and of long standing. If such was the case it might be that the alleged defamatory words were a new expression of the old enmity, and hence the evidence was admissible. ( Decker v. Gaylord, Fowles v. Bowen, supra.) Such evidence was considered in Hemmens v. Nelson ( supra), no question being made as to its competency.
The case does not appear to have been submitted to the jury upon the basis that the words were privileged unless the jury should find from the evidence that the defendant was guilty of express malice in speaking them. The learned trial court did not give any reason for setting the verdict aside — apparently the court thought it excessive.
Under the circumstances we are inclined to think that it is better that there should be a new trial, and, therefore, we affirm the order. As the trial judge did not charge the defendant with costs of the trial, as a condition of granting a new trial, we do not charge the plaintiff with the costs of this appeal.
All concurred.
Order affirmed, without costs.