Easley v. Moss , 9 Ala. 266 ( 1846 )

GOLDTHWAITE, J.

1. In Williams v. Bryant, 4 Ala. Rep. 44, we considered that words precisely equivalent in meaning, would not sustain a declaration in which the words charged to have been spoken, meant the same thing. In this we merely conformed to the previous decision in Cummins v. Walters, 1 Porter, 377. We then said, it is not necessary to prove all the words charged, provided such as are proved are slanderous, and all the words charged are not essential to constitute the charge. We think the plaintiff, so far as proof of the words was concerned, might safely have gone to the jury, under the rule as laid down in the case first cited, but the circumstance that he has failed to obtain a verdict, will not warrant us in departing from a rule which is entirely satisfactory with reference to this class of suits. The plaintiff was required to prove the precise words charged to have been spoken, though not all of them, if what he did prove were in themselves slanderous, and he will not be permitted to prove the substance of them, in lieu of the precise words. What is said in the subsequent case of Teague v. Williams, 7 Ala. Rep. 844, in the commencement of the opinion,. has'no reference to the point decided, but after collating the decisions of other courts, we reiterate our own rule, that the onus lay with the plaintiff, of proving that the words charged, or some of them that were actionable, were uttered. It is true, the words there spoken were charged as referring to a suit between the parties, in which their names were transposed, and we held this transposition made no difference, the words being the same in either event.

2. The rule with respect to communications from one person to another, of matter which, if published maliciously, would be actionable, is thus laid down by an approved writer on evidence: “ Whenever it appears from the plaintiff’s own showing, or in evidence on the part of the defendant, that the publication was made upon an occasion, and under circumstances, which justify a prima facie presumption, that notwithstanding the tendency of the words to defame or disparage the plaintiff, they were not spoken or published with that view, but on the contrary, in the bona fide discharge of some legal or moral duty to society, or even in the fair and honest prosecution of the rights of the party himself, or the protection of his interests, the plaintiff will fail, unless he can establish the malicious intention by extrinsic evidence.” [2 Starkie Ev. 863.] The communications by an employer to his overseer, having reference to the protection and care of the property committed to his charge, are certainly entitled tobe considered as confidential, and if made without malice, will not render the employer liable to an action of slander, although he may have entertained improper, or even unjust suspicions of the honesty of his neighbors, and expressed these opinions in terms which, if published under other circumstances, would, from their being unfounded, be deemed malicious. We think this question was properly left to the jury by the court.

Let the judgment be affirmed.