Wharton v. Wright

Garnett, P. J.

The Circuit Court was of opinion that the letter which is made the foundation of this suit was a privileged communication, and for that reason directed a verdict for defendants. Privileged communications are of two kinds; absolute and qualified. The absolute are those where the public interest requires the defendant should be allowed to speak or write fully and freely, even though the speaking or writing is knowingly false and malicious. The qualified privilege only protects the speaker or writer so far as it is done honestly for the common good; and though the occasion be one of qualified privilege, the person defamed may recover damages, if he can prove that the occasion was used by the defendant in bad faith to wilfully and knowingly traduce the plaintiff. When there is no dispute about the circumstances under which the communication was made, it is a question for the court whether the occasion was privileged. He having decided that'the occasion was privileged, the question of malice then became important. Odger on Slander and Libel, 183, 184, 266.

If malice be proved, the qualified privilege attaching to the occasion is lost at once. Ib. 267. There can be no better evidence of malice than the writing of that which the writer knew to be untrue. Elam v. Badger, 23 Ill. 501; Clark v. Molyneux, L. R., 3 Q. B. D. 247.

The burden of proving malice in such cases is on the plaintiff. He may prove the fact by extrinsic evidence, for example, by showing there were former disputes between defendant and himself, or that the defendant entertained any ill feeling against him at any time, either before or after the date of the publication. The rule as to the admission of evidence to show malice is very broad and liberal.

In fact, the plaintiff is not confined to extrinsic evidence, but may rely on the words of the libel itself, and the circumstances attending its publication. If the expressions employed appear uncalled for and in excess of the occasion, there is enough evidence to go to the jury. Odger on Slander and Libel, 270, 271, 276, 280.

Here the appellees seek protection under the qualified privilege, and we are clearly of opinion that there was evidence tending to prove that the publication of the letter complained of was attended by malice and the court should have submitted the case to the jury with proper instructions.

The judgment is reversed and the cause remanded.

Reversed and remanded.