Opinion
09-24-1874
DILLARD v. COLLINS.
Wm. J. Robertson and Blakey, for the appellant. T. J. Michie and H. B. Michie, for the appellee.
1. In an action of slander, a plea that since the commencement of the action the plaintiff has been adjudicated a bankrupt, is not a good plea.
2. Under the English bankrupt act and the bankrupt act of 1841, and the present act, the rights of action which are transferred to the assignee do not include claims for personal damages.
3. The rights of action transferred to the assignee are rights of action founded upon beneficial contracts made with the bankrupt, where the pecuniary loss is the substantial and primary cause of action, and for injuries affecting his property, so far as they do not involve a claim for personal damages.
4. An assignee in bankruptcy, in many respects, stands in the same relation towards the bankrupt's estate as that of an executor towards the personal estate of his testator.
5. The proper and reasonable construction would seem to be that the statute transfers all such rights of action as would be assets in the hands of an executor for the payment of debts, and no others.
6. In every instance of slander, whether verbal or written, malice is an essential ingredient, and must be averred. But when averred, and the language, verbal or written is proved, the law will infer malice, until the proof, in the event of denial, be overthrown, or the language itself satisfactorily explained.
7. Confidential or privileged communications are an exception to this rule; and in such a case the burden is on the plaintiff to prove malice.
8. Confidential or privileged communications are of four classes: 1st. Where the author or publisher of the alleged slander acted in the bona fide discharge of a public or private duty, legal or moral, or in the prosecution of his own rights or interests. 2d. Anything said or written by a master in giving the character of a servant who has been in his employment. 3d. Words used in the course of a legal or judicial proceeding, however hard they may bear upon the party of whom they are used. 4th. Publications duly made in the ordinary mode of parliamentary proceedings.
9. These excepted instances so far change the ordinary rule with respect to slanderous or libellous matter, as to remove the regular and usual presumption of malice, and to make it incumbent on the party complaining to show malice, either by the construction of the spoken or written matter, or by facts and circumstances connected with that matter, or in the situation of the parties, adequate to authorize the conclusion.
10. R, G and J rented land of D. They were strangers in the neighborhood. C lived on his farm in the same neighborhood. On several occasions D told R, G and J that C and all his sons were horsethieves, and made their living by that means; and that they frequently harbored that kind of men. There is nothing in the relation of landlord and tenants between D and R, G and J, which raises any presumption in favor of D, that the words were spoken without malice, or brings them within the class of privileged communications.
11. On a trial in an action for slander by C against D, the slanderous words having been proved, D will not be allowed to prove by his own testimony what were his feelings and motives in making the charge, whether with any ill will against C, or only for the protection of his own interests.
12. A deposition is taken to be read on a trial at law, and the witness is asked if he was acquainted with the general character of C, the plaintiff, for honesty. If so, state what it was and is. To which he answered, as far as he could see he did not see anything against the man. He never heard anything against him by any man except by D, the defendant. To this answer the defendant excepted generally. On the cross-examination it appears that witness did know enough of C's general character to authorize him to speak of it. The exception of the plaintiff should have stated the grounds of his objection to the answer. And it appearing fro the whole deposition that the witness was competent to speak as to the character of C, the answer will not be stricken out.
13. In an action for slander, the defendant cannot enquire into the social intercourse of the plaintiff with his neighbors. And where the slander charged is for horse-stealing, the defendant cannot introduce evidence of rumors as to the plaintiff or his sons having stolen a hog.
This was an action for slander in the Circuit court of Albemarle county, brought by Zachariah Collins against George W. Dillard. The slander charged is, that Dillard spoke of Collins as follows: " He and all his sons are horse-thieves, and make their living by that means, and that they frequently harbored that kind of men." The defendant pleaded " not guilty," and also a special plea of justification; on which issues were taken.
The cause came on for trial in October 1869, when the jury found for the plaintiff, and assessed his damages at $500; and there was a judgment according to the verdict. The defendant thereupon applied to a judge of this court for a supersedeas to the judgment; which was awarded. The case is sufficiently stated by Judge CHRISTIAN in his opinion.
Wm. J. Robertson and Blakey, for the appellant.
T. J. Michie and H. B. Michie, for the appellee.
OPINION
CHRISTIAN, J.
This was an action of slander and is before us upon a writ of error to a judgment of the Circuit court of Albemarle. The first error assigned in the petition, is the refusal of the court to permit the defendant to file a plea alleging that since the action was brought the plaintiff had been adjudicated a bankrupt. The court is of opinion that there was no error in rejecting the plea. It has been held in numerous decisions, English and American, that under the English bankrupt acts and the act of congress of 1841, the rights of action which are transferred to the assignee, do not involve claims for personal damages. They are rights of action founded upon beneficial contracts made with the bankrupt where the pecuniary loss is the substantial and primary cause of action, and for injuries affecting his property, so far as they do not involve a claim for personal damages.
A right of action, such as slander, which is merely personal, and dies with the party, is not transferred to the assignee. The assignee, in many respects, stands in the same relation towards the bankrupt's estate as that of an executor towards the personal estate of his testator. The proper and reasonable construction would seem to be, that the statute transfers all such rights of action as would be assets in the hands of an executor for the payment of debts, and no others; all which could be turned to profit; for such rights of action are personal estate. Of such, the executor is assignee in law; and the nature of the office and duty of a bankrupt's assignee, requires that he should have them also. But rights of action for torts, which would die with the testator, according to the rule actio personalis moritur cum persona, and all action affecting the person only would not pass. James' Bankrupt Law, pp. 38, 39, and cases there cited.
The learned counsel for the appellant concedes in his argument, that it is clear that if the question had arisen under the English bankrupt act, or under the act of congress of 1841, the plea would have been properly rejected. But he insists that the words choses in action being inserted in the present act, and those words not being found in the former acts referred to, gave to the present act a wider scope and larger signification. We do not concur with the learned counsel in this interpretation. The words " choses in action" mean nothing more and can have no broader signification than the words " rights of action," and it has been uniformly held that these latter words, " rights of action," only include rights of action founded on contracts, or for injuries to property, and not rights of action for torts, which are purely personal, such as the action for slander, which dies with the person, and never survives to the personal representative. This interpretation of the present act seems to have received judicial sanction in the Circuit courts of the United States. See Bump on Bankruptcy, (6th ed.) 357; 5 B. R. 152; 3 C. L. N. 297.
The court is therefore of opinion that the Circuit court did not err in rejecting the plea of bankruptcy.
The court is further of opinion that the words charged in the declaration, and proved to have been spoken by the defendant, were not, under the circumstances, such as fall within the class of confidential or privileged communications. The words charged in the declaration were as follows: " He (the plaintiff) and all his sons are horse thieves, and make their living by that means, and that they frequently harbored that kind of men." Four witnesses testify that these words were spoken to them substantially as laid in the declaration. Three of them lived upon lands rented of the defendant, and were the near neighbors of the plaintiff. One of them lived at the mill, being the miller of the defendant.
One of these witnesses (Thomas J. Rowland) says in answer to the question, " Did the defendant make any statement to you and the Shropshires in regard to the plaintiff about horse-stealing? " He did at different times. I do not recollect how often. He said that Mr. Collins and his boys were horse thieves, and that they were connected with that class of men, and I had better be careful and not make any acquaintance with them, that their bad character might injure my character; that there would come strangers there frequently in the back way in a very suspicious manner, and leave in the same way, and in a day or two there would be horses missing from the neighborhood." In answer to the question, " Did Dillard make these statements to you and the Shropshires, all being present, or to you alone?" He says, " In both ways. He did to me alone, and in their presence."
Another witness (John W. Shropshire) states: " The first time I heard Dillard say anything disrespectful of Mr. Collins was about the 19th March, 1866. He then warned me and my brother Gilbert and Mr. Rowland to avoid the company of Mr. Collins, saying that Collins and his sons were horse thieves, that they made their living by stealing horses and harboring horse thieves."
Speaking of another occasion, he says: " He came past the barn where we were at work, and riding up to the door, said to us that we had better watch our horses that night, as he (Dillard) had heard two strange men enquiring the way to Collins'. He stated when he left that some one would lose some horses; that they were a part of the clan who usually assembled at Collins', and when ever they assembled there some one was sure to lose horses, and that as we had good horses we had better watch them; and on account of this warning we kept guard over our horses every night for some time after that." Witness further stated, that he afterwards learned that the men referred to by Dillard were men belonging to a slate roofing company doing business near Charlottesville, who having heard that there was a slate mine on the farm of Collins came to see the quality of the slate.
Another witness (Gilbert Shropshire) says: " My brother, myself and Mr. Rowland settled in Albemarle county, Virginia, in March 1866, on Mr. Dillard's farm. Sometime after we went there, Mr. Dillard visited us frequently, and upon some of those occasions told us we had better have nothing to do with Collins and his sons; that they were horse thieves, and we had better watch our horses, Mr. Collins or some of his guests would steal them; that they made their living that way, and harbored that kind of men; that strangers came there and soon disappeared through the back part of their farm, and that horses would be missing from the neighborhood. For a month or two after Mr. Dillard told us this, some of us slept in the stable every night, and kept a close watch of our horses, and of Collins and his family; but we gradually got acquainted with them, and found them good neighbors and gentlemen, and was then satisfied that what Dillard told us was untrue."
Another witness testified that " he was employed by defendant to attend his grist and saw mill; that defendant said to him he did not know how Collins and his sons rode such fine horses and wore such fine clothes; they could not do it by their pump-boring, for they hardly ever worked; that they got their living by horse stealing and negro-trading. That defendant told him to watch them and see that nothing was taken from the mill. Witness understood at the time that defendant told him this, that the object of his statement was to put the witness on the watch to see that nothing was taken about the mill."
It will thus appear from these extracts taken from the evidence, that the slanderous words laid in the declaration were fully proved to have been uttered to at least four witnesses. It will be observed that there were two pleas upon which issue was joined, one, " not guilty," and the other, justification. Upon these two issues the parties went before the jury, who were to decide first, whether the defendant was guilty or not guilty of speaking the slanderous words; and if they believe him guilty, they are next to consider whether he has proved that the specific words are true or not. The proof of speaking the words substantially as charged is conclusive, and there is not a particle of evidence to sustain the plea of justification.
Under the plea of " not guilty" the defendant might have shown, in mitigation of damages, under the decisions of this court, the general bad character of the plaintiff for honesty; (see McNutt v. Young, 8 Leigh 542); but in this, too, he wholly fails. He relies exclusively upon the defense that the words spoken " fall strictly within the class of confidential or privileged communications; and that they were uttered bona fide, not with the malicious purpose of injuring the plaintiff, but with a view to the protection of his own interests, or the interests of the person to whom they were spoken."
It is a familiar and well settled rule of law, that in every instance of slander, verbal or written, malice is an essential ingredient; it must in either be expressly or substantially averred in the pleadings, and whenever thus substantially averred, and the language, either written or spoken, is proved as laid, the law will infer malice, until the proof, in the event of denial, be overthrown, or the language itself be satifactorily explained. There is but one exception to this rule, and that is where the words spoken or written fall within the category of what the law characterizes as confidential or privileged communications. The legal effect of this exception is simply to change the burden of proof. Where the words spoken or written are shown to be within a confidential or privileged communication, the presumption of malice no longer exists; but the plaintiff, in such a case, must show express malice, and cannot rely on the presumption of malice which the law attaches in all other cases to the utterance or publication of the words spoken or written. But even in such a case it is for the jury to determine whether (where the words written or spoken without doubt come within the scope of confidential or privileged communication), they were uttered or published maliciously.
The appellant in this case invokes this exception to the general rule, and insists that what he said of the appellee falls strictly within the class of confidential or privileged communications recognized by the law. It becomes necessary, therefore, to enquire into the peculiar character of such communications, and the extent of their influence upon words spoken or written, as to which, apart from that character, the law will imply malice.
I know of no treatise or decision where this subject is treated with more clearness and precision than in the opinion of the Supreme court of the United States delivered by Mr. Justice Daniel in White v. Nicholls, 3 How. U. S. R. 266. After a careful and elaborate review of the authorities on the subject, he says: " The exception relied upon belongs to a class which, in the elementary treatises and in decisions upon slander and libel, have been denominated privileged communications or publications. They are as follows: 1. Whenever the author or publisher of the alleged slander acted in the bona fide discharge of a public or private duty, legal or moral, or in the prosecution of his own rights or interests. For example, words spoken in confidence and friendship as a caution, or a letter written confidentially to persons who employed A as a solicitor, conveying charges injurious to his professional character in the management of certain concerns which they had entrusted to him, and in which the writer of the letter was also interested. 2. Anything said or written by a master in giving the character of a servant who has been in his employment. 3. Words used in the course of a legal or judicial proceeding, however hard they may bear upon the party of whom they are used. 4. Publications duly made in the ordinary mode of parliamentary proceedings. These are the acknowledged exceptions to the general rule. But the term " exceptions," as applied to cases like these just enumerated, could never be interpreted to mean that there is a class of actors in transactions placed above the cognizance of the law, absolved from the commands of justice. It is difficult to conceive how in society, where rights and duties are relative and mutual, there can be tolerated those who are privileged to do injury legibus soluti; and still more difficult to imagine how such a privilege could be instituted or tolerated upon the principles of social good. The privilege spoken of in the books should, in our opinion, be taken with strong and well-defined qualifications. It properly signifies this, and nothing more: " That the excepted instances shall so far change the ordinary rule, with respect to slanderous or libellous matter, as to remove the regular and usual presumption of malice, and to make it incumbent on the party complaining to show malice, either by the construction of the spoken or written matter, or by facts and circumstances connected with that matter, or in the situation of the parties adequate to authorize the conclusion. Baldwin, J. in White v. Nicholls, supra 266, 287.
In Cockaym v. Hodgkisson, 5 Car. & Pa. 543, we find it declared by Baron Parke, in a case of libel, which applies equally to a case of slander, " That every wilful and unauthorized publication, injurious to the character of another, is a libel; but where the writer is acting on any duty, legal or moral, towards the person to whom he writes, or is bound by his situation to protect the interests of such person, that which he writes under such circumstances is a privileged communication, unless the writer be actuated by malice."
So in Wright v. Woodgate, 2 Cromp. Mees. & Rosc. R. 573, it is said " A privileged communication means nothing more than that the occasion of making it rebuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff, and throws upon him the onus of proving malice in fact, but not of proving it by extrinsic evidence only: he has still a right to require that the alleged libel itself shall be submitted to the jury, that they may judge whether there is evidence of malice on the face of it." This opinion is cited with approbation by the Supreme court of the United States in White v. Nichols, supra.
Even in the case most usually cited in the books as a case of privileged communication, that of a master giving the character of a servant, Lord Mansfield said, in Weatherstone v. Hawkins, 1 T. R. 110, that if express malice be shown, the master will not be excused; and the result of the authorities is that if the conduct of the defendant entirely consists of an answer to an enquiry, the absence of malice will be presumed, unless the plaintiff produces evidence of malice; but in the case of a master, if unasked and officiously, he gives a bad character to a servant, or if his answer be attended with circumstances from which malice may be inferred it will be a question for the jury to determine, whether he acted bona fide or with malice.
Applying these well settled principles to the case before us, we must conclude, that the words charged and proven do not come within the exceptions to the general rule, known as confidential or privileged communications. If the slanderous words could be brought within either of the four exceptions laid down by the Supreme court of the United States, they must be referred to the first exception above stated, to wit, " when the author of the alleged slander acted in the bona fide discharge of a public or private duty, legal or moral, or in the prosecution of his own rights or interests."
If the slanderous words proven had been spoken to the witness Snead alone, who was the miller of the defendant, it might be argued with some plausibility, that they were spoken confidentially and bona fide, with a view to protect the defendant's own interest, and therefore without malice. But there was certainly no " public or private duty, legal or moral," which impelled him to repeat the slander to Rowland and the Shropshires; nor can he justify himself that he was only protecting his own interests. There is nothing in the relation of landlord and tenants, which raises any presumption in his favor. These tenants were working their own horses and not the horses of the defendant. It was their own horses, and not the horses of the defendant, that these parties were guarding night after night, upon the information of the defendant that " Collins and his sons were horse-thieves and would certainly steal them." There is no evidence to show that these tenants of Dillard had in their possession any property whatever belonging to him. It cannot therefore be said, that the author of the slander in this case " acted bona fide, in the prosecution of his own rights and interest." Indeed, all the circumstances of the case, the situation and relation of the parties, the manner in which the communication was made, sometimes to one witness alone, and then publicly in the presence of all (if not of others present), repeated over and over again, imputing to the plaintiff not only a grave charge, which must destroy his reputation, but an infamous crime which the law punished at that time with death; all show that it was peculiarly a case where the law will imply malice and a wicked intent to injure. The law holds the æ gis of its protection not only over the person and property of the citizen, but vigilantly guards, as equally sacred, his personal reputation and character. And the man who assails the character of his fellow man, and would secure himself from responsibility upon the ground that what he has spoken or written was only done confidentially and with no intent to injure, and without malice, must be careful that what he has said or written comes within the well defined qualifications which the law attaches to confidential or privileged communications. In the case before us the slanderous words charged and proved do not come within that category.
Having disposed of the main question in the case, and concluding that the alleged slander does not fall within the class known as privileged or confidential communications, it follows that the court did not err in refusing to allow the defendant to answer the questions as set forth in the third bill of exceptions. The defendant was put upon the stand, and a number of questions put in various forms as to his feelings and motives in making the charge, whether with any ill will against the plaintiff, or only for the protection of his own rights and interests.
The court did not err in rejecting these questions and answers. What boots it, that a man may come forward after he is sued for damages for slander and say that what he said was not maliciously said. What have his feelings and motives to do with the controversy? Can a man who has charged another with a crime, punishable with death, come forward and say, " I made this charge, but I had no unkind feelings against the plaintiff: I was not actuated by malice." To allow this mode of proof, would be to say that while the law imputes malice to the party who utters words actionable in themselves, he may absolve himself from the commands of justice if he will say at the trial that he had no unkind feelings against the plaintiff, and that what he said was not said maliciously, but only confidentially, with a view to protect his own interests. The law will not tolerate such a subterfuge, and the court below was right in rejecting such evidence. It was held by this court in McAlexander v. Hume, 6 Munf. 465, that proof of declarations by the defendant, after the institution of suit for slander, that he did not mean to charge the plaintiff with the crime alleged by the slanderous words, or that words were spoken in heat of passion, are inadmissible. The fact that the defendant is a competent witness under the statute does not change the rule of evidence.
Another objection made by the appellant is, that the court refused to strike out from the deposition the following question and answer of the witness Rowland.
The 5th question objected to is in these words:
" 5th question by same. Did you become acquainted with the general character of Zachariah Collins for honesty? If so, state what it was and is." To which the witness answered:
" Answer. As far as I could see I didn't see anything against the man. I never heard anything against him by any man except by Mr. Dillard."
It is noted in the deposition that " the defendant by his counsel excepts to the above answer." The only objection to this answer as legal evidence is, that the witness does not state in reply to that question, that he is acquainted with the general character of the plaintiff. But the defendant, as he ought to have done, does not state the ground of his objection. If he had, the objection would have been at once removed; for in the cross-examination the witness in reply to the question, " You don't know what the plaintiff's neighbors think of his character as an honest man do you?" says " I don't know what all of them thought. I talked with a number: they all spoke favorably of his character." If the evidence of the witness had been confined to the part of the answer objected to, it ought to have been excluded, for a witness cannot give his own opinion of the character of the plaintiff. But when the witness knows the general character of the party of whom he is speaking, and proves it to be good among his neighbors, and adds to this statement, " that as far as he could see he did not see anything wrong in the man," a court will certainly not reverse the judgment because these latter words were not stricken out. The court, looking to the whole deposition, saw that the witness knew the general character of the plaintiff, and could therefore speak of it intelligently. It is not sufficient that a party objecting (in a deposition) should simply record his objection to an answer of the witness, but he must put his finger on the point of objection, so that the other party may supply the deficiency, if any; otherwise it takes the other party by surprise at the trial. But, in this case, the court looking to the whole deposition, and seeing that the witness was well acquainted with, and proved in cross-examination his knowledge of the general character of the plaintiff, did not err in refusing to strike out the answer in the examination in chief.
As to the remaining questions and answers referred to in the second bill of exceptions, it is sufficient to remark that these were not objected to at the time the depositions were taken. Not being objected to then, it was too late to move to exclude them at the trial.
As to the fourth bill of exceptions, no proper ground of error is stated. The defendant introduced a witness to whom he asked the question whether he had or had not heard of threats from the sons of the plaintiff, made since the commencement of this trial, against witnesses of the defendant who had testified or should testify against the character of the plaintiff and his sons. The court properly excluded this evidence. It was not pertinent or relevant, and could not, in any manner, affect the issues which the jury were sworn to try--those issues being not guilty and justification.
The fifth and sixth bills of exception state as ground of error, the refusal of the court to permit the defendant to propound the following questions to a witness introduced by him: 1st. What was the habit of the neighbors of the plaintiff in reference to social intercourse with him; and to what cause was that habit due? 2d. Was or was not the reputation of the plaintiff such as to affect social intercourse between him and his neighbors? If so, to what extent and how did it affect such intercourse? These questions were properly rejected by the court. It is true that it has been settled by this court that a defendant in an action of slander may, in mitigation of damages, when the pleas are not guilty and justification, offer evidence of the general bad character of the plaintiff with regard to the specific malice with which he is charged. But the enquiry as to his general bad character must be limited to that specific matter. It would certainly have been competent in this case, for the defendant to have offered evidence to prove the general bad character of the plaintiff for honesty, but all enquiries as to " the habits of his neighbors with reference to social intercourse with him," and the cause of that want of social intercourse, or whether " his reputation was such as to affect social intercourse between him and his neighbors," were properly rejected. The inquiry must be limited to his general bad character for honesty, the charge being that he was a thief.
There remains to be noticed the seventh and eighth bills of exceptions, which may be disposed of in a few words. The questions ruled out by the court below, which form the ground of these exceptions, were enquiries as to common rumors connecting the plaintiff with hog-stealing, and as to the conviction of the plaintiffs and his sons with stealing a cow from the witness. Both of these questions were properly rejected by the court. Under the pleading in the cause these were not proper subjects of enquiry. The charge was, that the plaintiff was a horse-thief. It would have been no answer, under the plea of justification, to show that the plaintiff had stolen a hog or a cow, much less would it be competent to prove common rumors in the neighborhood that he had been guilty of either of these crimes.
Upon the whole case, the court is of opinion, for the reason herein stated, that there is no error in the judgment of the Circuit court of Albemarle, and that the same should be affirmed.
JUDGMENT AFFIRMED.