194 Mass. 68 | Mass. | 1907
1. The second paragraph of the first ruling asked for evidently was copied from the opinion in Swan v. Tappan, 5 Cush. 104, 111. The defendant’s counsel overlooked the fact that that was a case where special damage had to be shown. In the case at bar the slander consisted in charging the plaintiff with a crime. In such a case special damage does not have to be shown to make out a case. For this reason the exception to the refusal to give this ruling must be overruled.
2. The second ruling asked for is in these words: “If one who has lost goods by theft goes to the house of the person whom he suspects to have stolen them, and there, in reply to questions put as to the object of his visit, accuses that person of the theft and states the grounds of his accusation, the communication is privileged, if made in good faith, with the belief that it is true, and without express malice, although made in the presence of others, and although it may have been intemperate and excessive from excitement.”
The presiding judge gave this ruling, adding at the end of it: “ provided the excitement was such as would naturally be aroused by the circumstances.”
If the jury found as a fact that there was intemperance and excess in the defendant’s communication beyond such as naturally would be aroused by the circumstances, that was a fact which they were bound to consider in connection with the defence of privilege and the express malice which destroys that defence. If they believed that this excess did not in fact come from the heat and excitement of the situation, that fact would at least be evidence of express malice, the proving of which destroys the defence of privilege. Fryer v. Kinnersley, 15 C. B. (N. S.) 422. Atwill v. Mackintosh, 120 Mass. 177.
■ 4. The defendant excepted to that part of the charge in which the presiding judge said that “ There was no right to search the plaintiff Crafer against his will and if he submitted under the suggestion that there would be a prosecution if he did not, and that suggestion came from the defendant Hooper, you would be justified in inferring that there was malice.” Taken by itself this might be misunderstood. Taken in connection with what followed it, the charge is correct. The judge went on to say: “ You will not infer malice in this aspect of which I am now speaking unless it is your conclusion that the search was in consequence of a purpose on Hooper’s part to humiliate the plaintiff Crafer, and was submitted to because of apprehension of a prosecution.” What the judge meant was that if the defendant made the accusations of theft to humiliate the plaintiff and not for the purpose of recovering the missing money, that would destroy the defence of privilege; that in passing on that fact they could consider the search made, and, if they found that it was made against the will of the plaintiff under threats of prosecution, they could consider that fact in determining whether the real motive of the defendant in making the accusations was to humiliate the plaintiff.
Exceptions overruled.
The instruction referred to contained the statement “ Any indirect motive other than a sense of duty is what the law calls malice ” and also contained the statement “If the defendant, that is Hooper, gave unnecessary publicity to his statements, by making them in the hearing of the plaintiff’s fellow-workmen, you have a right to take that into consideration as evidence of malice.”