Noonan v. Orton

| Wis. | Jan 15, 1873

DixoN, C. J.

Where the language spoken or written concerning partners in their partnership business is actionable per se, either partner may sue separately to recover damages for the injury sustained by him. The authorities in some instances go even much farther than this in upholding the right of separate action, but so far, at least, we think there can be no doubt. Townshend on Slander and Libel, § 185.

The first count of the complaint charges the speaking of words which, if spoken without excuse or justification, are actionable per se; and the second count charges the writing of similar words. The insinuation of the words in the first count alleged to have been spoken, was, that the plaintiff had committed the crime of arson. Such is the innuendo of the pleader, and we think it is sustained by the words charged.

Tbe publication set out in tbe second count, and alleged to bave been made by tbe defendant, clearly insinuated that tbe plaintiff bad perpetrated tbe crime of perjury, and sucb is tbe innuendo of tbe pleader.

Tbe joinder of a count in libel with one in slander is clearly proper.

But it is objected that tbe language complained of in eacb count was, as appears from tbe averments of tbe complaint, in tbe nature of a privileged communication, and that it is not alleged that tbe same was maliciously spoken or written. Tbe words complained of as slanderous were spoken to an agent of tbe insurance companies whose policies covered the property destroyed by tbe fire, and which agent was interested in tbe question of sucb destruction and in knowing how tbe fire originated, and especially if it was caused or procured by tbe willful or criminal misconduct of tbe plaintiff. Tbe publication charged as false and libelous was a communication in writing addressed and made to tbe president of one of the same insurance companies, who was in like manner interested in knowing the truth or falsity of tbe proofs of loss which bad been made by the oaths or affidavits of tbe plaintiff and of his copartner, McNab.

The communications thus made were privileged, or of tbe kind more properly denominated conditionally privileged. An absolutely privileged communication is one in respect of which, by reason of tbe occasion upon which it is made, no remedy can be bad in a civil action of slander or libel. Townsbend, § 209. Of such are tbe words spoken or written by judges in the exercise of their judicial functions, by legislators in tbe performance of their duties, and man}*- others. “A conditionally privileged publication is a publication made on an occasion which furnishes a prima facie legal excuse for the making of it; and which is privileged unless some additional fact is shown, which so alters the occasion as to prevent its furnishing a legal excuse. Tbe additional fact which in the majority of cases is required to be shown to destroy this conditional privilege, is malice, meaning bad intent, in tbe publisher, i. e., an intent to injure tbe person whom or whose affairs tbe language concerns; and therefore by a conditionally privileged publication is very generally understood one which rebuts the presumption of malice, meaning absence of legal excuse, which, in cases where no legal excuse is apparent, arises from the mere fact of publication.” Townshend, supra.

Communications are of the latter kind when they are made in good faith to those having an interest in them and a right to know and act upon the facts stated. “ Where words imputing misconduct to another are spoken by one having a duty to perform, and the words are spoken in good faith and in the belief that it comes within the discharge of that duty, or where they are spoken in good faith to those who have an interest in the communication and a right to know and act upon the facts stated, no presumption of malice arises from the speaking of the words, and therefore no action can be maintained in such cases, without proof of express malice.” Such is the language of Shaw, C. J., in Bradley v. Heath, 12 Pick., 164, and which no doubt correctly enunciates the principles of law governing this subject. See also Townshend, § 241, and authorities there cited.

The first count of the complaint charges that the paper mill, with all the machinery and fixtures, was “ totally consumed by fire” on the 6th day of July, 1869. The second count refers to the first, and alleges that the “property was consumed by fire as hereinbefore stated.” It is not averred in either count that the burning was accidental, or that it occurred without fault on the part of the plaintiff or of his copartner, Mc-Nab. The first count charges that the defendant, “well knowing the premises, and designing and intending to injure, ” etc., “did speak,” etc. In the second count the averment is, “of all which facts the said defendant had due notice and knowledge at the time of the composing and publication of the libelous words and matter hereinafter stated.” Had the complaint dis-tinctlj averred the destruction by fire to have been accidental, then the averrments of knowledge on the part of the defendant of all the facts, including that one, at the time he spoke the words alleged to have been “ false, scandalous and defamatory,” and when he made the publication alleged to have been “false,” might have been regarded very probably as sufficient aver-ments of malice. The making of a false accusation, knowing it to be false, could hardly be regarded as otherwise than malicious. But the making of a false accusation not knowing it to be such, but in good faith, supposing or believing it to be true, may, under some circumstances, be both innocent and commendable. It is so when made in the honest endeavor to perform one’s duty, or when the communication is to one interested in it, and who has a right to act upon the information given.

It has been said that the law respects communications made in confidence, notwithstanding they may be false and erroneous and prove injurious to the party, and that this rule applies equally to words written and spoken. It is meant to protect the communications of business, and the necessary confidence of man in man. Wyatt v. Gore, 1 Holt’s Nisi Prius Cases, 299, note (3 E. C. L., 114). In such cases the presumption of malice is rebutted by reason of the occasion upon which the words were spoken or written, even though the same may appear to have been false, unless they were so to the knowledge of the speaker or writer. The occasion. operates to justify or excuse until such knowledge or bad faith or malice be shown, the burden of which rests upon the plaintiff.. The general language of the authorities is, that the plaintiff must aver and prove malice, and the pleading here is defective in not containing that or any other equivalent averment.

By the Court — - Order reversed, and cause remanded for further proceedings according to law.