28 Iowa 51 | Iowa | 1869
There was, under the circumstances, no error in rejecting the testimony, and, least of all, any of such prejudicial nature as to justify a reversal of the judgment.
If the jury had been told, as in Newell v. Davis (8 Blackf. 523), that a want of probable cause was sufficient evidence of malice, there would have been some ground for the objection now under consideration. For such is not the law. We so held in Ritchy v. Davis, supra; and see Mitchell v. Jenkins, 5 Barn, and Adol. 588.
The action of the court below, as already suggested, was in accord with these authorities, and not obnoxious to the objection stated.
And see the preceding case of Shaul v. Brown, infra.
The criticism is unfair which says that, under this language, the jury was bound to find for plaintiff, though it was found that defendant was forced to answer the question, if it was also believed that he did not “ like plaintiff,, and had malice.” The words “without malice” relate to the speaking, to the specific act, to the state of mind at that time, to the motive influencing these, and not to defendant’s likes or dislikes, his motives generally, nor to his malice generally. It is not objected that the words are too broad, not properly qualified or limited, but, in effect, that any witness on the stand might be liable in slander, though compelled to use slanderous words against another, if it appeared that he entertained dislike or malice to the person mentioned. Now, suppose defendant used the words in malice, and did not believe them to be responsive to the questions asked, would protection be claimed for him ? The occasion, the place, the circumstances, may have afforded prima facie evidence to repel the inference of malice. And this is conceded. But if the jury believed that defendant’s purpose in speaking the words was malignant, and that he took that opportunity to gratify his malice with impunity, he would unquestionably be liable. 2 Stark. Ev. 464; 2 Greenl. Ev. 622; Somerville v. Hawkins, 3 Eng. L. and E. 503; York v. Rose, 2 Gray, 282. And, in such a case, the occasion would not afford protection. The true rule, in other words, is, that what was said pertinent and material to the matter in controversy being privileged, the legal idea of malice is excluded; but if not pertinent, and not uttered l>ona fide, but for the purpose of defam
The instructions under consideration do not conflict with these views. And thus having examined the points relied upon to reverse this case, and finding no error, the judgment below must stand.
Affirmed.