47 W. Va. 766 | W. Va. | 1900
This was an action of trespass on the case, brought by Ira Ward against Taylor Ward, his brother, in the circuit court of Barbuur County, on the 26th of December, 1896, claiming damages to the amount of twenty-five thousand dollars on account of certain defamatory words alleged to-have been uttered by the defendant in regard .to the plaintiff’s pecuniary condition. The words alleged to have been tittered by the defendant, as set forth in plaintiff’s declaration, are as follows: “That he (meaning plaintiff) was broke up (meaning that tne plaintiff had become so involved financially as not to be able to continue as theretofore his business, and that he had become insolvent, and unable to pay his debts); that he (meaning plaintiff) was-broke up, and could not pay his debts (meaning that plaintiff had become insolvent); that he (meaning plaintiff) was broken up worse than Joe Smith, and could never pay his debts (meaning that plaintiff had failed in business, become more insolvent than Joe Smith, and would never, by
During the trial, the court at the instance of the plaintiff, .gave the jury the following instructions: “No. 1. The court instructs the jury that slander is the defamation of .a man with respect to his character, or his trade, profession, or occupation, and in this case has reference only to his trade and business, by word of mouth; and if they believe, from the evidence, that the defendant, Taylor Ward, uttered any or all of the slanderous words charged in the plaintiff’s declaration, maliciously intending to damage the plaintiff, Ira Ward, in his trade, profession, or occupation,
Can we sustain the action of the court in giving to the jury said instruction No. 1? In it the court omits any ref
Instruction No. 2 is erroneous in that it tells the jury that “if tbey believe, from the evidence, that the defendant has failed to show' that said words were privileged, then they should find for the plaintiff. The error consists in the fact that the question as to whether the words uttered were privileged was not a question for the jury, but was one of law for the court upon the facts proven. See quotation above given from 13 Am. & Eng. Ene. Law, p. 429. The utterance in the case at bar comes within the purview of what the law considers a qualified priviledge. Newell, Defam. p. 389. The onus lies on the plaintiff of proving actual malice, and the court erred in telling the jury, in instruction No. 2, that “if they believed, from the evidence,. that the slanderous words, or any of them, charged in plaintiff’s declaration, were uttered by the defendant against or about the plaintiff, the law will presume'that the said words were uttered maliciously, and with intent to injure the plaintiff,” without at the same time telling them that said presumption would be overthrown if the circumstances showed that the utterances were privileged, and in such case the onus of proving malice would be upon the plaintiff.
Instruction No. 6 is erroneous in that it fails to inform the jury as to the result of the words charged in the declaration to have been uttered were privileged. Whenever, in answering an inquiry, the defendant is acting bona fide in the discharge of any legal, moral, or social duty, his answer will be privileged. Id. p. 494, § 88. The defendant may, under the general issue, show that the alleged defamation consisted in a communication on matters of business made by or to persons interested in the subject-matter of the communications, although they affect the character or credit of the plaintiff. Id. p. 788. Green-leaf on Evidence (volume 2, § 421), under “Defense under the General Issue,” says: “So, if a person having information materially affecting the interests of another, hon
Having reached the conclusion that instructions Nos. 1, 2, and 6, for the above reasons, were erroneous, and should not have been given to the jury, I consider it unnecessary to discuss the testimony, or the questions raised by the action of the court in overruling the motion to set aside the verdict. The judgment is reversed, the verdict set aside, and a new trial awarded.
Reversed.