14 Mich. 471 | Mich. | 1866
Chandler sued Edwards upon a charge of libel, in writing to Henry Kip, Superintendent of the United States Express Company, a letter reflecting upon the character of Chandler, as agent of that company, at the village of Hillsdale, and complaining of his conduct in such agency.
Edwards pleaded the general issue, and with it gave notice that the letter was of such a character, and written under such circumstances, as to make it a privileged communication. The notice also set forth several facts going to prove the truth of many of the allegations in the letter, but not purporting to cover all of them.
As the letter was clearly privileged, and was so held by the court below, the only questions to be considered are such as apply to that class of instruments.
Upon the trial, after the plaintiff below had closed his ease, and after the defendant had introduced proof upon the specific facts detailed in the notice appended to his plea, the latter offered to prove additional facts not contained in the notice, going to establish the truth of his letter. Objection being made, the court declined to permit this, and held that no evidence should be received on the subject, except of facts alleged.
In this the court was very clearly in error. Where a communication is privileged, the plaintiff cannot recover without proving affirmatively not only the falsehood of its contents, but also that it was published with express malice. Unless he can prove both of these points he must fail. The falsehood being a necessary part of the case to be made out by the plaintiff, the truth is but a contradiction of that case, and may be made out under the general issue, therefore, without resort to a special plea or notice. Upon this question there seems to be no conflict of authority, and it is in accordance with the general doctrine of pleading, that the defendant may deny, under the general issue, whatever the plaintiff is obliged to prove as an essential part of his own case.
The same rule of pleading, therefore, which requires a special plea in the one case, renders it inapplicable in the other; and so it has been determined.—Remington v. Congdon, 2 Pick. 310; 2 Greenl. Ev. § 421; 2 Starkie on slander, 103, 104; Bradley v. Heath, 12 Pick. 163; Fairman v. Ives, 5 B. & Ald. 642; Child v. Affleck, 9 B. & C. 403; Somervill v. Hawkins, 3 L. & Eq. 503; Fountain v. Boodle, 3 Q. B. 5.
It is also alleged as error that parol evidence was improperly introduced to show the authority of one Calvin Cone. Having already testified without objection that he had charge of the Express Company’s agents and business in Michigan and Ohio, and that he issued a certain table of rates, and the rules and regulations attached, he proceeded to say that he had authority to issue and promulgate the same; and this last statement was objected to.
The objection is a general one, and its validity is, therefore, questionable under any circumstances, but we do not perceive that it has any special force. We cannot know judicially that his action was not accepted and followed by the company, and if so, it can make no odds whether he had or had not any original authority, nor whether it was verbal or written.
It is also alleged as error that the court improperly charged the jury that they would be warranted in inferring from the letter sued on, a charge of embezzlement, or of misapplying or appropriating the funds of the express company or their customers to the use of Chandler. The language supposed to justify this inference was this: “ It is wondered at how he can live in more than ordinary style, as he does, while having merely the honorable receipts of his agency to live upon.” The letter had previously accused him of vexatious acts,
The language does not necessarily imply that he had embezzled or stolen, but it is ambiguous, and we are not prepared to say that a jury could not draw such an inference without unreasonably stretching or perverting the sense. Such language must be construed by the jury, and not by the court. —Lewis v. Chapman, 16 N. Y. 371. But the Court in this case did not direct the jury to draw the inference. They were told that “ if such toas their inference from the language in the letter,” they would be warranted in drawing it. This left it entirely to the jury, and we cannot say that it was done in such a way as to mislead them into supposing it to be an obligatory inference.
There being error in the exclusion of testimony, the judgment must be reversed, with costs, and a new trial granted.
