Jellison v. Goodwin , 43 Me. 287 ( 1857 )

Davis, J.

In this case the defendant admitted the speaking and publication of the words, charging the plaintiff with the crime of adultery; but he justified on the ground that the words were not uttered maliciously. And he requested the presiding judge to instruct the jury “ that the law does not recognize fixed and limited numbers and classes of privileged communications; but that the jury are authorized to decide, from all the circumstances of the speaking and publication, whether the words were maliciously spoken, notwithstanding they may-be actionable in themselves.” This instruction was not given.

The distinction between malice in law, and malice in fact, has not always been regarded sufficiently in judicial opinions; and some apparent conflict has resulted. Nor does the term “ malice” always have the same signification in law. In actions for malicious prosecution the word has a meaning and force different from what it has in actions on the case for slander. Mitchell v. Jenkins, 5 B. and A., 588.

As understood in this latter class of actions, malice in fact implies a desire and an intention to injure. But malice in laio is not necessarily inconsistent with an honest or even a laudable purpose. If one makes a false accusation against another, without knowing it to be false, but with no sufficient cause or excuse, it is legally malicious. Bromage v. Prosser, 4 B. and C., 247, 255. If he makes such an accusation, knowing it to be false, it is actually malicious. The former is a presumption of law from certain facts proved. Whether the latter existed in any given case, is a question of fact for the jury.

Legal malice alone is sufficient to support an action for slanderous words. And if the words are actionable in themselves, and are not privileged, the speaking of them is sufficient evidence of this kind of malice. The law implies such malice from the uttering of such words; and no other evidence of malice is necessary. But the plaintiff may, if he chooses, prove actual malice also, to enhance the damages. True v. Plumley, 36 Maine R., 466.

If the defendant shows that the words were spoken as privileged communications, so that there was no legal malice, it is a full justification, upon which he is entitled to a verdict in his favor. But proof that there was no actual malice goes only in mitigation of damages.

The requested instructions applied to privileged communications, making no allusion to the question of damages; and they obviously had reference only to malice in law. The question whether the words spoken were privileged communications, necessarily relates to the question of legal malice, as distinguished from actual malice. But upon the proof or admission of certain facts, whether legal malice existed, is a question of law; and is not to be “ decided by the jury, from the circumstances of the speaking and publication.” There was no error in declining to submit this question to the jury.

The counsel for the defendant has argued at some length the correctness of the first part of the request, — “ that the law does not recognize fixed and limited numbers and classes of privileged communications.”

There are certain classes of communications in regard to which the law is well settled, that they are privileged. If there are or may be other classes, not yet recognized by courts, but founded upon like reasons, and of like necessity, the defendant should have proved that the words spoken by him were embraced in such other class, and then he might properly have called for appropriate instructions. But the case does not show that any such proof was introduced or offered; nor is any intimation given as to what new kind or class of privileged commuications the court should recognize. So that, however correct the instruction might have been, as an abstract legal proposition, there being no evidence in the case to which it could apply, there was no good reason for giving it to the jury.

If by the instructions requested it was intended to assert that the question as to what kinds and classes of communications are privileged, is not a question of law to be decided by the court; but that the jury are to determine this question, and may find any kind of communications privileged, according to the circumstances of the speaking and publication, we have no hesitation in expressing the opinion that such a proposition is erroneous.

The exceptions must he overruled.