Wormwood v. Lee , 226 Mass. 339 ( 1917 )

Crosby, J.

This is an action for slander. The alleged cause of action arose while the plaintiff was in the employ of the defendant. One Kincaid, who was a common friend of the parties, was called as a witness by the plaintiff and testified that the defendant stated to him [Kincaid] substantially as follows: that Dodwell and Smith, two of his [the defendant’s] employees, told him there was a man at the defendant’s factory a few days before to buy some fish, and that this man asked for Wormwood, the plaintiff, “and told Dodwell and Smith (so they said) that he had bought fish from Wormwood two or three times before; that he [the defendant] would like to have Kincaid speak to the plaintiff about it as he would like to clear the matter up for his own protection, and if any one was stealing fish he wanted to know it so that he could protect himself.”

Kincaid further testified that while making this statement the defendant spoke in an ordinary tone; that he was not excited and did not show any ill feeling toward the plaintiff; that the defendant said if fish were being taken that he would like to find out who did.it so that he could protect himself in the future.

In an action for slander, upon proof that words in themselves actionable have been spoken, there is a presumption of malice as an inference of law, but if the words are spoken under such circumstances as to be privileged, the presumption of malice is rebutted and the action will not lie unless malice in fact is proved.

The jury could have found that the defendant had reasonable cause to believe that some one had been stealing his goods and that he attempted merely to discover the guilty party in order to protect himself, and that the statement to Kincaid was so made in good faith in the belief that it was true. If the jury so found, the words spoken would be privileged. Accordingly the defendant’s third request in substance should have been given. Christopher v. Akin, 214 Mass. 332. Dale v. Harris, 109 Mass. 193. Brow v. Hathaway, 13 Allen, 239.

If, however, the jury found that the statement amounted to a charge of larceny and was false, and that it was not made under such circumstances as to be privileged, then malice would be presumed and the plaintiff could recover without proof of actual malice. It follows that the defendant’s first and second requests could not have been given.

As the third request was refused, the entry must be

Exceptions sustained.