15 Pa. Super. 181 | Pa. Super. Ct. | 1900
Opinion by (after stating the facts as found in the statement of facts) :
The learned trial judge instructed the jury that the plaintiff could not recover unless the evidence satisfied them that the words were spoken of and concerning the plaintiff, and that in uttering them the defendant “ was impelled, not by his obligation of duty as a member of council, but by actual malice against the plaintiff.” We quote further from the charge: “If, on the other hand, the impelling motive which caused him to make the charge was not a desire honestly to perform his duty to the borough, but was a desire to vent his malice and spleen upon the plaintiff, then he would be liable, just as if he had not been a member of council. And that, I say, is the point of this case. Did he do it in the honest belief that it was necessary in the proper performance of his duty as a member .of council ? If he did, there can he no recovery. And in this view of the case, it does not matter whether he was a friend or enemy of the plaintiff. He was under just as much obligation to protect the borough against a party whom he did not like as to protect the borough against a party who was a friend of his. The question of their relations is only of moment here in so far as it helps to solve the question whether his impelling motive in making this declaration was a sense of duty to the borough, or was malice towards the plaintiff.” As the jury found in favor of the plaintiff, and as there was affirmative evidence outside the occurrences above narrated to warrant the submission to them of the questions of malice and good faith (see 184 Pa. 116), the question for our consideration -is, whether or not the defendant was exempt from liability to action on the ground of privilege, even though in uttering the defamatory words he was not acting in good faith but was actuated by express malice towards the plaintiff ?
The learned trial judge decided upon the defendant’s motion for judgment non obstante veredicto that under the undisputed facts of this case the occasion was absolutely privileged, and that the defendant’s statement was pertinent to the occasion. He states the case thus: “ The words upon which the action is based, according to the undisputed testimony, by witnesses of both plaintiff and defendant, were spoken by a member of a borough council, at a meeting of the council, in the discussion of a matter regularly before the house, and with respect to a matter which was open for discussion and upon which it was the duty of council to pass. The statement was of a matter of which, if true, it was proper and important that the members of council should be informed.” This summary of the facts and the legal conclusion based thereon are attacked on the grounds : first, that the matter of the plaintiff’s claim was not regularly before the council for action, therefore the occasion was not privileged; second, that the defamatory words spoken by the defendant were not pertinent to the occasion;
Was the matter of the plaintiff’s claim regularly before the council for discussion and action ? In disposing of the appeal taken from the judgment of nonsuit entered on the first trial oE this case, Justice Gkeen, speaking for the Supreme Court said, that, “ even in the recognized cases of absolute privilege, it is not enough that the slanderous words were uttered in a legislative hall or in a court of justice to establish a claim to absolute privilege. A further reference must be had to the circumstances and to the occasion of the particular occurrence, before the question can be determined:” 184 Pa. 108. We have given the circumstances under which the words were uttered, and if the case rested here our duty would be plain. Upon substantially the same evidence the Supreme Court held it to be error for the trial court to assume as an undisputed fact that the words were uttered in the course of debate on a matter regularlybefore the council for discussion and action. We quote from Justice Gkeen’s opinion: “Now the question whether the slanderous words were uttered during the course of a debate in a legislative body is certainly not a question of law, If it were an undisputed question of fact, the court might pronounce upon it.” Again he says: “We have already alluded to the testimony as bearing upon the question whether the words were uttered in debate upon a pending motion. The weight of the evidence on that subject is in the negative, and hence its solution would have to be referred to the jury.” The plain implication from these remarks is that if the jury decided this question in the negative, the court could not declare as matter of law that the defamatory words were absolutely privileged even though they were uttered at a regular meeting of council and were pertinent to the matter contained in the oral report submitted by the chairman of the committee.
It is thought that the case presents a different aspect now from what it did when it was first tried, because it was shown on the trial before us for review that it was the usage in the meetings of this council to discuss matters affecting the* borough without any motion being made, and then make a motion afterwards, If is not clear that the question whether there
The judgment is reversed and judgment is now directed for the plaintiff on the verdict.