29 N.Y.S. 427 | N.Y. Sup. Ct. | 1894
The defense interposed by the answer is that the statements contained in the letter are true, were published without malice, and that the circumstances under which the letter was written rendered it a prima facie privileged communication. There are two classes of privileged communications: (1) Those which are absolutely privileged, and for the publication of which an action cannot be maintained, no matter what the motive of the author may be. Within this class are accurate publications of the proceedings of courts of record and legislative bodies, and the statements of judges, witnesses, and jurors made on trials in courts of record. (2) Communications which are prima facie privileged. Among this class are statements necessary to protect one’s private interests, and statements of one having an interest in the - subject-matter of the communication made to another having an interest in the same-matter. Prima facie privileged communications are subdivided into two kinds: (1) Those which relate to matters of public interest, and (2) those which relate to purely private interests. The communication in this case, if it be prima facie privileged, falls within the second subdivision of the second class. In case a communication is prima facie privileged, the existence or nonexistence of malice on the part of the defendant is a question of fact, and the plaintiff, before he can recover, must affirmatively establish, to the satisfaction of the jury, that the publication complained of was made through malice. This may be shown by the communication, by the circumstances under which it was written, and it may be inferred from a variety of facts. There are two questions involved in the issue whether a communication is prima facie privileged. One is, was the occasion on which it was made privileged? (2) Did the communication go beyond what the occasion justified, or did it exceed the privilege? The communication complained of related to the introduction of a system of drainage and plumbing for two buildings, the specifications for the construction of which called for the use of the defendants’ system. In both cases other systems of drainage had been substituted, to the defendants’ loss. The communication was made to the secretary of the Mail and Express Company, which was engaged in erecting one of the buildings. The occasion was privileged. Did the publication go beyond the occasion, or, in other words, was more written than the occasion—the
“This letter related to Mr. Hill, the plaintiff, in his business capacity; and I charge you that the words therein contained are libelous per se, and that he is entitled to maintain this action; and, being entitled to maintain the action, the next question which arises is as to the damages which he has sustained.”
To this instruction the defendants excepted. In this the court erred, for, under defendants’ evidence tending in support of the letter, it could not be affirmed, as a matter of law, that the question was not privileged, and that the communication exceeded the privilege. The judgment and order should be reversed, and a new trial granted, with costs to the appellants to abide the event.' All concur.