23 Ind. 229 | Ind. | 1864
This action was brought by Skillen in the 'White Circuit Court, charging the defendant, Bhillips,
There were pleas in denial and in justification. Trial, and finding by a jury in these words: “"We, the jury, find for the defendant, on the grounds that we do not believe from the evidence that the. words were spoken slanderously and maliciously. We further do not believe the plaintiff guilty of theft, or feloniously abstracting wheat or flour from the customers.”
The evidence is not in the record, and we have simply to determine whether, under the issues, any evidence could have been received in support of the finding of the jury.
The words alleged to have been spoken implied malice in law, and the want of actual malice could not have been shown to defeat the action. The defendant, however, could show that the words were spoken, with additional words, qualifying and explaining them, so as to rebut all presumption of legal malice, and this could be done under the general issue.
In the case of Abrams v. Smith, 8 Blackf. 95. Mr. Justice Blackford, in delivering the opinion of the court, uses this language: “ The repeating or first speaking of slanderous words may be often justified, without proving them to be true; when they are spoken on a justifiable occasion, without malice, they are excusable, though false, and evidence that they were so spoken is admissible under the general issue. If they were spoken on a justifiable occasion, the plaintiff must prove express malice or he can not recover. We are not informed of the circumstances under which the words in the ease before us were spoken; but we must presume them (the circumstances) to have been such as justified the refusal of the instructions.” In Lillie v. Price, 5 Adolp. & Ellis, 645, Lord Denman, Oh. J., said : “We have consulted the other judges on this point, and are-of the opinion that the defense of privileged communication, as it goes to the very root of the matter of complaint, need not be specially pleaded.”
The proof, under the issues, of the fact that the words were either explained at the time they were used, so as to destroy the legal presumption of malice, or that they were spoken and understood as a jest, or that they were nsed in a privileged communication, would have sustained the finding of the jury. We must presume such proof to have been made.
Judgment affirmed.
