TMs аction for slander was brought by the appellee, Virginia Dove, who asserts that the appellant, George Edward Thiel, falsely accused her of adultery. The jury awаrded the plaintiff $14.00 as compensatory damages and $1,400.00 as punitive damages. The appellant questions the sufficiency of the evidence and the correсtness of the count’s instructions to the jury.
Thiel, who was the municipal judge at Paragould, was standing on the sidewalk across the street from the Reynolds Apartments at about 9:30 on thе evening of July 24, 1957. He says that in' one of the apartments he saw a city policeman, Jimmy Rogers, clad only in an undershirt, and a nude woman whom he did not recognize and, in fact, has never attempted to identify. The two disappeared from view, but Thiel observed enough of their conduct to indicate that an act of sexual intercourse took place.
On the same evening, according to the evidence, Thiel met two policemen and told them what he had seen. He also went to the homе of an alderman and, in describing the incident, identified the window of the apartment as having been the first one to the left of the stairway in the building. The next day the mayor heard about the matter and discussed it with Thiel.
No formal charge appears to have been made against Rogers, the officer involved, but the city’s Police Committee met on July 26 and investigated the matter to some extent. Five days later the city council held a public hearing, which was well attended, to determine if Rogers should be suspendеd or discharged. Thiel appeared at both these meetings, by request but without subpoena, and again described what he had seen in the apartment to the left of the stairway.
The apartment in question was occupied by the plaintiff, Mrs. Dove, and her husband. Their testimony, which is amply corroborated, is that on the evening of July 24 two other tеnants in the building, Miss Potter and Miss Berry, dropped in to watch television. Nothing of an unusual or indecent nature took place. Rogers testified that he had never been in the Rеynolds Apartments at night and had never been in the plaintiff’s apartment at all. The jury evidently accepted the testimony offered by the plaintiff and concluded that thе defendant’s narrative was false.
The appellant first contends that his words did not amount to a defamation of Mrs. Dove, since he did not name her as the woman he saw and did not even know that she lived in the particular apartment. This argument is not sound. It is enough that the slanderous words be reasonably understood to refer to an ascertained or ascertainable person, who, of course, must be the plaintiff. Nowell, Slander and Libel (4th Ed.), § 214. Inasmuch as Thiel identified the man as Jimmy Eogers and fixed the placе as the apartment occupied only by Mrs. Dove and her husband, the statements strongly imply, and would reasonably be taken to mean, that Mrs. Dove was in fact the unidentified woman supposedly seen by the appellant.
Upon the theory that Thiel’s statements before the Police Committee and at the city council’s public hearing were absolutely privileged, counsel for the defense asked the trial court to instruct the jury that there could be no liability for those statements. That request was properly refused. The committee and the council were discharging a public duty in inquiring into Rogers’ fitness to act as a policeman, and in the public interest it was desirable thаt they have as much information as possible about the incident. Consequently it is true that statements taken at the hearings were privileged, but the privilege was conditional rather than absolute. Rest., Torts, § 598.
The rule governing the limited immunity that attends a conditional privilege has been stated as follows: “One who publishes false and defamatory matter of another upon a conditionally privileged occasion is liable to the other if he abuses the occasion.” Rest., Torts, § 599; Bohlinger v. Germania Life Ins. Co.,
A conditionally privileged occasion is also abused if the speaker is motivated by maliсe rather than by the public interest that calls the privilege into being. Rest., § 603; Miller v. Nuckolls,
Finally, it is insisted that the court erred in giving an instruction which reads in part: “You are instructed that malice may be inferred from the falsity and the absence of probable cause or other relevant circumstаnces, or it may be deduced from the libel or slander itself of which it forms a part.” It is argued that under our previous decisions this instruction constituted a comment upon the weight of the evidence.
This contention must be sustained. The manner in which the trial court may call certain facts to the jury’s attention has been pretty clearly outlined by а number of decisions, many of which deal with the fact of possession of recently stolen property as constituting sufficient proof of guilt. On the one hand, it is permissible fоr the court to instruct the jury that a certain fact, such, as the possession of recently stolen goods, goes to the jury for its consideration in connection with the other evidence as tending to show the guilt of the accused. See Blankenship v. State,
On the other hand, it is clearly improper for the court to tell the jury that a spеcific fact in evidence is sufficient to support an inference of guilt, negligence, or the like. Blankenship v. State, supra; Smith v. Jackson,
In the case at bar the court instructed the jury, at least in general language if not by referеnce to a specific fact, that malice may be inferred from the falsity of the statements and the absence of probable cause. In applying this charge to the proof before them the jury would necessarily understand that a finding of falsity and of the want of probable cause was, in the court’s judgment, a permissible basis for inferring the existence of malice. Hence, even though the charge was couched in general language it conveyed the same message that would have been carried by a specific narration of the facts.
The case of L. B. Price Merc. Co. v. Cuilla,
Reversed.