78 F. 460 | 7th Cir. | 1897
This was an action of slander. The trial resulted in a verdict and judgment for the plaintiff. Matters of inducement and innuendo omitted, the several counts of the declaration charge the utterance of the following words: “He is a dangerous man.': “He is a perjurer.” “He is a perjurer and a blackmailer.” “He belongs to a gang that is organized in East St. Louis to extort money from our street railroad.” “He went to Springfield, and swore to a lot of lies.” “Another member of the gang is a relative of his, a Dr. Anthony, and between them they worked up a scheme, and got a judgment against us.” These things, it is alleged, were said by Scullin, the plaintiff in error, concerning Harper, the defendant in error, in the presence and hearing of divers persons, on the 27th day of July, 1893, at East St:. Louis. Error is assigned upon the rulings of the court in excluding evidence, and in giving and refusing instructions to the jury. Prior to July 27, 1893, Harper, who is a carpenter, had been in the employment of the East St. Louis Ice & Cold Storage Company as foreman of the ice gang, and shortly before that date had gone to Springfield as a witness for the plaintiff in a case in the United States circuit court against the East St. Louis Electric Street-Railroad Company, in which the plaintiff in error was interested as a stockholder, and had testified adversely to the company. The plaintiff in error, who resides in St. Louis, was also interested in the East St. Louis Ice & Cold Storage Company, owning a large amount of the stock, hut was not an officer, agent, or manager of the company. W. S. Hodges, also a resident of St. Louis, was a director and the secretary and treasurer of the company, and in the absence of the president had supervision of its affairs; and it was in a conversation with him, and in the hearing of none other, on July 23, 1893, at St. Louis, that the plaintiff in error uttered concerning the defendant in error any of the obnoxious expressions complained of. Hodges, the only witness called to prove that the words were spoken, testified that between 11 and 12 o’clock on that morning Scullin came to his office in St. Louis, and requested him to go with him after, dinner to the ice factory, saying “that there was a bad man there he wanted to get rid of”; that thereupon he named Harper, and used concerning him some of the expressions set out in the declaration; that two hours later he met Scullin, went with him across the river to East
The question of malice or good faith was an essential part of the issue, and it was certainly competent for the defendant, when called as a witness, to testify, if he would, that what he had said of the plaintiff was said upon information, without malice, and in the belief that it was true. If the truth of the proffered testimony was questionable, it was the province óf a cross-examination into the source of the alleged information to expose the attempt at imposture. It is equally clear, because pertinent to the question of malice, that the witness should have been allowed to state any relevant part of his conversation with Hodges. If he told Hodges the source of his information, or what his information was, that was relevant and competent. It was, of course, not competent for the witness to state what Hodges understood, but the other questions were proper. The objection that what was said in the office at East St. Louis was not a part of the conversation testified to by Hodges as having occurred at St. Louis is not sound. Upon Hodges’ own testimony, when the conversation began in St. Louis, it was in the contemplation of the parties to go to East St. Louis in reference to the subject of the interview, and according to Scullin it was not until after an examination of the time book at East St. Louis
The letter of Hodges, which was first admitted in evidence and afterwards excluded, was competent, brought out as it was upon the cross-examination, for the purpose of affecting the credibility of the witness. 1 Greenl. Ev. § 463, and notes.
The court was asked but refused to give a number of special instructions to the effect ihat as a shareholder in the East St. Louis Ice & Storage Company the plaintiff in error was privileged to speak freely with Hodges, a managing agent, concerning an employé of the company, and that his words, unless spoken with actual malice, of which the burden of proof was with the plaintiff, were not actionable. Whether these requests for special instructions were all un-objeetionabiy worded, we have not considered. Upon the undisputed facts it is clear that the communications in question were of a privileged character. “So are all communications by members of corporate bodies, churches, and other voluntary societies, addressed to the body, or any official thereof, and stating facts which, if true, it is proper should be thus communicated.” Cooley, Torts, 252. This doctrine the court ignored entirely in its charge, and, after stating that the “imputations” alleged “are actionable in and of themselves,” told the jury “that if the defendant spoke and published the slanderous words as charged in the declaration, or any set or portion of them, actionable in themselves, then the plaintiff is entitled to recover.” This expression, two or three times repeated, in substance, in the course of the charge, besides excluding the question of privilege, is objectionable because it left to the jury to determine whether any portion or any set of the words charged was actionable. See Railroad Co. v. Meyers, 22 C. C. A. 268, 76 Fed. 443. That the words, “he is a dangerous man,” are not actionable in themselves is clear. The nearest approach to a recognition of the doctrine of privilege was in the instruction that the defendant was not prevented, by the legal presumption of malice, from showing that the words were not spoken maliciously; but this itself involves error. The words having been spoken under privileged circumstances, the presumption was that they were spoken without malice.