115 Mich. 140 | Mich. | 1897
This is an action for slander, brought by the plaintiff, a young man 18 years of age, against the defendant, who is cashier of the Commercial State Bank at St. Joseph. The bank has been in existence about five years. The plaintiff went into the employ of the bank,
“Will [meaning plaintiff] has been- tempted, and has taken some money. A dollar was there (indicating). A marked half dollar was placed under a paper, for the purpose of catching him. I placed a quarter in a paper down by the waste basket, and that was never found. Will has taken this money.”
No one was present during this lastrónversation except defendant and plaintiff’s father, and during the first conversation no one was present but the parties and Mr. Clark. These are the conversations declared upon.
It also appeared on the trial that the defendant kept a
Plaintiff introduced evidence tending to show that the defendant made the charges stated in the declaration. Defendant admitted making such statements to the plaintiff, in the presence of Mr. Clark, and to the plaintiff’s father.
At the close of the testimony, the defendant’s counsel asked the court to charge the jury:
“2. Unless the jury find that the plaintiff did not take either the twenty-five or fifty cent or one dollar pieces, they should find for the defendant.
“3. If Mr. Bradford had reasonable-ground to believe that the plaintiff took either of the three coins mentioned, they should find for the defendant.”
“6. Before the jury can return a verdict for tiie plaintiff, they must find — First, that the plaintiff did not take either of the coins; and, second, that the defendant was impelled by actual ill-will and hatred to say what he did of the plaintiff.”
“8. Under the general issue as pleaded, the defendant may show that the boy did take the coins.
“9. Under the pleadings and evidence, the jury must find for the defendant, unless they find as an affirmative fact that, the plaintiff did not take the coins in question.”
“11. The commftnications alleged to have been, made by Mr. Bradford are shown by the evidence to be what are known as ‘privileged Communications,’ — communications which the defendant had a right to make if true; and, unless you find that the defendant and Mr. Clark have testified falsely about the coins, your verdict should be for the defendant.”
The suit was commenced on Monday following the Saturday upon which these charges were made. The plea was the general issue. Plaintiff had verdict and judgment for $125. All the material testimony taken upon the trial is returned here.
It is claimed by counsel for defendant that the communications made to the father and to Mr. Clark, upon which this action is founded, were privileged. Such communications, however, cannot be classed as absolute privilege, within the definition of that term laid down by this court in Bacon v. Railroad Co., 66 Mich. 166, but rather as qualified privilege, as there defined. The defendant communicated the facts to Mr. Clark, and stated the matter to the plaintiff in the presence of Mr. Clark. No one else was present. Mr. Clark was the bookkeeper of the bank. He had a right to know what the claim made by the defendant was, as he, too, was interested in the safe-keeping of the funds of the bank. The communication was also made to the father by the defendant. No other person was present. As was said in Bacon v. Railroad Co., supra: “The question whether the occasion is such as to rebut the inference of malice if the communication be bona fide is one of law for the court; but whether bona fides exist is one of fact for the jury,”—
But counsel for plaintiff contend that the placing of the coins there was an effort on the part of the defendant to entrap the plaintiff, and induce him to commit an offense, and that there was no justification or excuse for such conduct. No motive was shown for placing the coins there, except that testified to by the defendant. He was cashier of the bank, had hired the plaintiff, and could discharge him at any moment. It is evident, therefore, that the coins were not placed for the plaintiff to take, and thus find an excuse for his discharge. The plaintiff was 18 years of age, and apparently a young man of intelligence. He was handling the money of the bank every day, and must have known that whatever money was found behind the bank counter was the money of the bank. If he took the coin placed there by the defendant, he did so with full knowledge that it was a dishonest act. He must have known that he had no more right to it than to any of the moneys he was in the habit daily of counting. • On cross-examination he testified that on several occasions he had shaken dice for cigars, and upon one occasion had played a game of poker for money, and from his testimony it appears that he was familiar with the rules of the game. It does not appear that he spent very much money in gaming, but his wages were only four dollars per week. His conduct at least shows that he had intelligence enough to know what was right in the discharge of his duties at the bank. The defendant was the cashier of the bank. The duty rested
Counsel for defendant asked the court to charge the jury that they must find for the defendant. Under the record as it is returned here, we think that charge should have been given. The only question which could arise in the case is the bona fides of the defendant in making the statements to the plaintiff in the presence of Mr. Clark, and the communication to plaintiff’s father. As we have seen, these communications were privileged; that is, the circumstances under which they were made rebut the presumption of malice, and throw upon the plaintiff the onus of proving malice in fact. In Jackson v. Hopperton, 16 C. B. (N. S.) 829, cited with approval in Bacon v. Railroad Co., supra, Mr. Justice Erie said:
“A plaintiff does not sustain the burden of proof which is cast upon him by merely giving evidence which is equally consistent with either view of the matter in issue. Where the presumption of malice is neutralized by the circumstances attending the utterance of the slander or the publication of the libel, the plaintiff must give further evidence of actual or express malice in order to maintain his action.”
There is no evidence in this case showing or tending to show malice on the part of the defendant towards the plaintiff, unless' the placing of the coins may be so considered ; but the circumstances surrounding that transaction rebut any such presumption. In Toogood v. Spy-
“If such communications are fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society, and the law has not restricted the right to make them within any narrow limits.”
We fail to find anything in the words spoken, the occasions upon which the communications wei’e made to plaintiff and Mr. Clark and to plaintiff’s father, or the circumstances surrounding the case, from which the jury would be justified in finding that the defendant was actuated by malice towards the plaintiff.
The judgment must be reversed, and a new trial awarded.