Brow v. Hathaway
95 Mass. 239
Mass.
1866
Check Treatment
Wells, J.

Thе defendant’s wife having lost goods from her store, and having grounds to suspect that the plaintiff had stolеn them, the defendant applied to the chief of police, and, at his suggestion, went with a pоlice officer to the house where the plaintiff resided with her mother, to make inquiry into the matter. No search-warrant was taken, but a search was made by permission of the mother and the рlaintiff. No stolen goods were found. This proceeding had no authority of law, but, with the assent of the hоuseholder, there was no impropriety in it; and there is nothing in the case to show that it was resorted to, or that the attendance of the police officer was procured, otherwise than in good faith and to secure a proper investigation for the discovery of the stolen goods.

The words alleged as slanderous were spoken by the defendant on that occаsion, in reply to the inquiry of the mother as to 11 what they wanted,” and in explanation of their visit. They all related to the subject matter of ‍‌‌‌​‌‌​​​‌​‌​‌‌‌‌​‌‌‌​​​​​​​​​​​‌​‌​‌​​​​​​‌​‌​​‍the supposed theft, and the grounds which the defendant had to susрect the plaintiff. This statement furnishes the conditions which establish the legal position of “ privilege,” rebutting the presumption of malice which *242the law would otherwise imply, and making it incumbent upon the рlaintiff to show malice in fact in order to recover.

The broad general principle is сarefully ‍‌‌‌​‌‌​​​‌​‌​‌‌‌‌​‌‌‌​​​​​​​​​​​‌​‌​‌​​​​​​‌​‌​​‍stated in the case of Toogood v. Spyring, 4 Tyrwh. 582, which is referred to in nearly all the later decisions upоn this subject, and its doctrines have been quoted and approved by this court in Swan v. Tappan, 5 Cush. 104, and Gassett v. Gilbert, 6 Gray, 94. A narrower statemеnt, applicable to the facts of ‍‌‌‌​‌‌​​​‌​‌​‌‌‌‌​‌‌‌​​​​​​​​​​​‌​‌​‌​​​​​​‌​‌​​‍the present case, is made by Lord Ellenborough in Delany v. Jones, 4 Esp. 191, namely : “ If done bona fide, as with a view of investigating a fact, in which the party making it is interested, it is not libellous.” To the same effect аre Padmore v. Lawrence, 11 Ad. & El. 380, and Fowler v. Homer, 3 Camp. 294. In Blackham v. Pugh, 2 C. B. 620, Chief Justice Tindal says : “ A communication made by a person immediately concerned in intеrest in the subject matter to which it relates, for the purpose of protecting ‍‌‌‌​‌‌​​​‌​‌​‌‌‌‌​‌‌‌​​​​​​​​​​​‌​‌​‌​​​​​​‌​‌​​‍his own interest, in thе full belief that the communication is true and without any malicious motive, is held to be excused from responsibility in an action for a libel.”

. This “ privilege ” is not defeated by the mere fact that the statements were made in the presence of others than the parties immediately interested; nor that they were intemperate or excessive from over excitement. Toogood v. Spyring, cited above. Dunman v. Bigg, 1 Camp. 269.

Whether the subject matter to which the communications relate, the interest in it of the party making them, or his relations to it, are such as to furnish the excuse, is a ‍‌‌‌​‌‌​​​‌​‌​‌‌‌‌​‌‌‌​​​​​​​​​​​‌​‌​‌​​​​​​‌​‌​​‍question to be determined by the court, in the first instance, assuming that they were made in good faith, in the belief that they were true, and with no motive of malice.

If unnecessary publicity be given to the statements, or if they go beyond what is reasonable in imputing crime, these circumstances may tend to show malice in fact; as well as evidence that the defendant knew them to be false, or had no sufficient reason to believe them true, or that he improperly sought or used the occasion to utter the defamatory words. But however strong the evidence from, these sources may be, and however irresistible *243the conclusion of malicе to be drawn therefrom, it is a conclusion of fact, and is to be drawn by the jury, and not by the court. The judge who tried this cause instructed the jury that if the defendant used the words alleged, he was liable, “ although nе may have believed them to be true and may have had no malicious design to defame the plaintiff” This ruling, as it seems, must have been based upon the ground, either that the occasion was not оne which furnished the excuse of “privilege,” or that the defendant had, by some abuse of the privilege, lost the benefit of its protection. If upon the former ground, we think it was wrong as matter of law, both upon the authorities and upon principle. If upon the latter, it was a question not for the court, but for the jury.

This case must be distinguished from those in which the party pleading the excuse of “ privilege ” is guilty of making use of the occasion to utter charges of a character foreign to its legitimate purpose. As, for instance, if this defendant had, in addition to his statements in relation to the supposed theft, gone on to criminate the plaintiff generally, or to accuse her of unсhastity, it would then have been the duty of the court, in an action for uttering such charges, to instruct the jury that as to such words, not appropriate to the legitimate objects of the occаsion, it furnished the defendant no excuse whatever. But in this case the language all related to the subject of the theft which they were investigating, and it should have been left to the jury to determine, upon all the circumstances of the case, whether the defendant was guilty of actual malice.

Exceptions sustained.