Dale v. Harris , 109 Mass. 193 ( 1872 )

Colt, J.

In an action for slander, malicious intent is an inference of law which arises from the speaking of the words alone, whenever the words spoken are in themselves actionable. This inference is rebutted when the occasion and circumstances of the speaking are such as to exclude the idea of malice, as when the communication was made in good faith, in the performance of a duty, and with the honest and. reasonable purpose of protecting the interest of the party using the words. When that is the case, the plaintiff must prove malice in fact, or he fails to establish a necessary element in his cause of action. It is a question for the court, whether the statement, if made in good faith and without malice, is thus privileged. But the plaintiff has the right, notwithstanding the privileged character of the communication, to go to the jury, if there be evidence tending to show actual malice, as when the words unreasonably impute crime, or the occasion of their utterance is such as to indicate, by its unnecessary publicity or otherwise, a purpose wrongfully to defame the plaintiff. Brow v. Hathaway, 13 Allen, 239. Somerville v. Hawkins, 10 C. B. 583. Gassett v. Gilbert, 6 Gray, 94.

These are elementary principles; and, looking at this case as it appears upon the exceptions, we cannot say, upon the whole, that the jury were not correctly instructed in their application to tile facts, or that any necessary instruction was omitted. The defendant claimed exemption from liability, on the ground that his statement was privileged; and asked several instructions with reference to it. It is stated that full instructions were given on these points, but those instructions are not reported. It is evident that the whole history of the trial is not before us, and we must presume that the familiar rules of law as to proof of malice were stated in a manner not open to objection. Taken in connection with these rules, neither the first nor the second instruction asked for, as modified by the judge, is erroneous. The instruction which was given in place of the third instruction re quested embraced all the elements desired by the defendant, and, as applied to the evidence reported, was certainly sufficiently favorable to him. In reference to the fourth instruction asked, we'do not see any evidence in the case which made it necessary to give it in addition to the other instructions to the jury which were given.

Exceptions overruled.