Holt v. Parsons , 23 Tex. 9 ( 1859 )

Roberts, J.

Mr. Starkie says, that “any writings, pictures, or signs, which derogate from the character of an individual, by imputing to him either bad actions, or vicious principles, or which diminish his respectability and abridge his comforts, by exposing him to disgrace and ridicule, are actionable, without proof of special damage; in short, that an action lies for any false, malicious, and personal imputation,- effected by such means, and tending to alter the party’s situation in society for the worse.” (Starkie on Slander, 140.) And Sir William Blackstone defines a libel to be the “ malicious defamation of any person, made public by writing, &c., in order to provoke him to wrath, or expose him to public hatred, contempt, or ridicule.” (4 Bl. Com. 150.).

The writing alleged to be maliciously published in this case, is as follows, (being a resolution adopted and recorded by the defendants as a board of trustees):

“ Whereas, Benjamin S. Parsons, former treasurer of the Galveston Presbyterian Church, did, as treasurer, collect the funds due to said church, and whereas, the said Benjamin S. Parsons did resign the office of treasurer, and did, at the same time, retain all the funds collected as aforesaid, applying them to his own use and account; and whereas, the said Parsons has been often remonstrated with, on account of his acts and doings in relation to said funds; and whereas, he has wholly disregarded our efforts to bring about an amicable adjustment of our affairs; and whereas, he has written to the Board of Trustees various disrespectful communications; therefore, be it resolved, unanimously, that the Board of Trustees of the Galveston Presbyterian Church, do censure the conduct of the said Benjamin S. Parsons, and pronounce him a defaulter to the said Presbyterian Church, in the sum of one hundred and twenty-four dollars and twenty-five cents.”

The substance of this is, that Parsons is censured for obstinately retaining in his hands the funds of the church, which he received as its treasurer, without just cause, after every importunity" had been exhausted, to induce him honestly to pay it over. Such an assertion is certainly calculated to bring him into disrepute' with his neighbors; and being charged to have been made and published maliciously, would unquestionably constitute a libel, under the definition above given.

The defendants below denied the malicious intent, and asserted the truth of the facts contained in the resolution. The verdict of the jury established the falsity of the charge against Parsons, upon evidence which appears to be entirely sufficient. The defendants below contend that it was in the nature of a privileged communication, and that, although it might not have been true, they believing it to be so, and having acted without any malicious intent, it is not libellous. This would have been a good defence had it been supported by proof.

The malicious intent is a necessary ingredient in the cause of action, and is one of the facts to be found by the jury. Where the writing is defamatory in its character, and is found to be false, that is evidence of the malicious intent, because every one is presumed to have intended what is the necessary consequence of his own act. That evidence (which is usually stated to be primd facie) may be weakened, and sometimes wholly counteracted, by its being a privileged communication. For instance, a letter is written, in England, concerning a servant, both defamatory and untrue. The fact that it was written as a letter of character by a former master, tends to rebut the presumption of malicious intent that would otherwise arise, and it will counteract it altogether, unless there is something in the style or manner of the writing which shows malice. It may still bear upon its face intrinsic evidence of a malicious intent, although it be the letter of the master; or, this malicious intent of the master, although not apparent in the'writing, may be made manifest by extrinsic facts.

To rebut and entirely remove the evidence of malicious intent, where the writing is both defamatory and false, upon the ground of a privileged communication, it must appear: 1st, That the party had a right, or was under some obligation, to give the information which was believed to be true: 2nd, The mode and style of communication must not contain intrinsic evidence of malicious intent over and above what is reasonably necessary and proper in conveying the information: 3d, It must be free from attendant and concomitant extrinsic circumstances showing a malicious intent. (Starkie on Slander, 201-212, and particularly, case of Dunman v. Bigg, cited on page 210 ; 1 Campb. R. 269.) These general principles have been discussed and settled with great ability and research in the case of Root v. King and Verplank, 7 Cowen’s Rep. 613.

The proof here does not show such a case. The board of trustees had no moral control over the former treasurer. Their relation to him was one of a business character. They had a right to form and declare their judgment as to the state of accounts between the treasurer and the board. This they had done by a previous resolution. This was as far as it was necessary and proper for any practical purpose. The tone and spirit of the resolution show that something more was designed by it, than merely to inform the church members that Parsons was indebted to the church one hundred and twenty-four dollars, and that he refused to pay it. The interviews and communications, both before and after the resolution was passed, show a disagreement of a serious and protracted character between the committee and Parsons to have existed at the time, and may have been regarded by the jury as furnishing extrinsic evidence of the malicious intent. But had there been none such, the court, from the tone of the resolution, should have left it to the jury to determine (as was done in the case of Dunman v. Bigg, above cited,) whether the expressions in the resolutions were used with a malicious intention of defaming the plaintiff (below), or with good faith to communicate facts to the church members, in relation to the pecuniary affairs under their charge.

From the views here taken, it will be perceived, that the court below did not err in refusing the charges asked by plaintiffs in error; and that the defence relied on, that the resolution was in the nature of a privileged communication, is not sustained by the evidence.

Judgment affirmed.