Page images

Nos. 5, 6.

Toogood v. Spyring; Hemmings v. Gasson. — Notes.

to sell him goods, Sunderlin v. Bradstreet, 46 New York, 188; 7 Am. Rep. 323, citing the principal case. A paper stating that defendant had been “ robbed and swindled” by plaintiff and agreeing to share the expense of a criminal prosecution against him, Klink v. Colby, 46 New York, 427; 7 Am. Rep. 360, citing the principal case. A resolution, of an association of clergymen, of which both parties were members, adopted at the instance of defendant, imputing to plaintiff unclerical conduct, and inviting him to defend himself, Shurtleff v. Stevens, 51 Vermont, 501; 31 Am. Rep. 698, citing the principal case, and Clark v. Molyneux, L. R., 3 Q. B. Div. 237. A statement of the superintendent of the United States Naval Academy giving his reasons, required by law, why his proffered resignation should be accepted, Maurice v. Worden, 54 Maryland, 233; 39 Am. Rep. 384. A report of a committee of a lodge of Odd Fellows recommending the expulsion of plaintiff for perjury, Kirkpatrick v. Eagle Lodge, 26 Kansas, 384; 40 Am. Rep. 316. A petition to a town superintendent of schools protesting against his licensing the plaintiff as a teacher on the ground of his unfitness and bad character, Wieman v. Mabee, 45 Michigan, 484 ; 40 Am. Rep. 477; citing Dickeson v. Hilliard, L. R., 9 Ex. 79; Harrison v. Bush, 5 E. & B. 344. To the same purport, Bodwell v. Osyood, 3 Pickering (Mass.), 379; 15 Am. Dec. 229; Harwood v. Keech, 4 Hun (New York), 389. A list of discharged employees, giving reasons for discharge, circulated among other employees, Missouri Pac. Ry. Co. v. Richmond, 73 Texas, 568; 15 Am. St. Rep. 795. (Contra: Bacon v. Mich. C. R. Co., infra.) An account given by a clergyman, at the instance of friends of a girl said to have been seduced by plaintiff, of the conduct of plaintiff while the clergyman knew him, Rude v. Nass, 79 Wisconsin, 321 ; 24 Am. St. Rep. 717, citing the principal case. A statement by a former employer to an existing or prospective employer of plaintiff that he had stolen from him, Fresh v. Cutter, 73 Maryland, 87 ; 25 Am. St. Rep. 575, citing Rogers v. Clifton, 3 Bos. & P. 587 ; Pattison v. Jones, 8 B. & C. 586. A statement by a cashier of a bank to a stockholder therein, respecting the financial standing of a surety on an official bond to the bank, Rothholz v. Dunkle, 53 New Jersey Law, 438 ; 26 Am. St. Rep. 432, citing Lawless V. Anglo-Egyptian Oil Co. L. R., 4 Q. B. Div. 262; Philadelphia R. Co. v. Quigley, 21 Howard (U. S. Sup. Ct.), 202; Waller v. Lock, 45 L. T., N. S., 243: JESSEL, M. R.: “If an answer is given in the discharge of a social or moral duty, or if the person who gives it thinks it to be so, that is enough; it need not even be an answer to an inquiry, but the communication may be a voluntary one." A letter to a Catholic priest stating that plaintiff is no longer a Catholic, Gough v. Goldsmith, 44 Wisconsin, 262; 28 Am. Rep. 579. A complaint by a church member that another member had committed perjury, made to bring about a trial, Remington v. Congdon, 2 Pickering (Mass.), 310. A letter written by a citizen concerning the fitness of a person for public office, and read at a meeting held to inquire concerning candidates, Briggs v. Garrett, 2 Atl. Rep. 527, citing the principal case, and Quinn v. Scott, 22 Minnesota, 456. A communication to the Governor of a State for the purpose of influencing his action on a legislative bill, Woods v. Wiman, 122 New York, 445; Larkin v. Noonan, 19 Wisconsin, 82. A memorial to the post-office department, charging plaintiff with fraud,

- 6


Nos. 5, 6.

Toogood v. Spyring ; Hemmings v. Gasson. — Notes.

Cook v. Hill, 3 Sandford (New York Superior Ct.), 341. The report of a committee of the College of Pharmacy in New York, in respect to the importation of spurious and adulterated drugs, Van Wyck v. Aspinwall, 17 New York, 190. A letter to the President complaining of a customs officer and requesting his removal, White v. Nicholls, 3 Howard (U. S. Sup. Ct.), 266. A “caution to the public,” in a report of directors of an incorporated society against trusting a former agent, since dismissed, Gassett v. Gilbert, 6 Gray (Massachusetts), 94, the Court observing: “The precise limits within which the publication of defamatory matter is allowed, as being privileged by the occasion, are best defined by Baron Parke in the leading case of Toogood v. Spyring." A petition to a town council asking the removal of a constable because ignorant, unprincipled, spiteful, and violent, Kent v. Bongartz, 15 Rhode Island, 72; 2 Am. St. Rep. 870, citing Hart v. Gumpach, L. R., 4 P. C. 439; Laughton v. Bishop, &c., L. R., 4 P. C. 495. A reply to an inquiry by a post-office inspector concerning the fitness of an applicant for a post-office appointment, Posnett v. Marble, 62 Vermont, 481 ; 22 Am. St. Rep. 126, the Court observing : “ The selection of suitable persons for the performance of official service is essential to the interests of both the government and the citizen. These interests can be protected only by the communication of information and by free discussion concerning the fitness of applicants. It would tend to repress this necessary freedom, and would be a manifest injustice to the citizen, if communications of this character subjected the persons making them to the payment of damages in the event of an honest mistake. But these considerations disclose no necessity for a privilege broad enough to cover charges which are unfounded and malicious.”

The first principal case is cited as “the leading case,” with many others, in Chaffin v. Lynch, 83 Virginia, 118; 84 ibid. 887.

The following have been held not privileged : A libellous letter written by a clergyman to an association of clergymen of which he is not a member, concerning one of its members, Shurtleff v. Parker, 130 Massachusetts, 293; 39 Am. Rep. 454. A letter from a minister to a woman, who was formerly but not then his parishioner, cautioning her not to marry the plaintiff, Joannes v. Bennett, 5 Allen (Mass.), 169; 81 Am. Dec. 738. Byam v. Collins, 111 New York, 143; 7 Am. St. Rep. 727, is to the same purport, cites the principal case and reviews many other English and American cases.

One judge dissented. A list of discharged employees, stating reasons for discharge, furnished by defendant to its employees, Bacon v. Asichigan C. R. Co., 55 Michigan, 224; 54 Am. Rep. 372. (Contra : Mo. P. Ry. Co. v. Richmond, supra.) A declination to serve on a church committee to prepare a Christmas festival on the ground that another member had a venereal disease and had been intimate with plaintiff, York v. Johnson, 116 Massachusetts, 482. A false report of financial standing, furnished by a mercantile agency to subscribers generally without request, Pollasky v. Minchener, 81 Michigan, 280; 21 Am. St. Rep. 516; King v. Patterson, 49 New Jersey Law, 417; 60 Am. Rep. 622; Johnson v. Bradstreet Co., 77 Georgia, 172; 4 Am. St. Rep. 77; Bradstreet Co. v. Gill, 72 Texas, 115; 13 Am. St. Rep. 768. A libellous letter in answer to a claim presented by plaintiff's attorneys, Alabama, &c. Ry. Co.

Nos. 5, 6. — Toogood v. Spyring; Hemmings v. Gasson.


v. Brooks, 69 Mississippi, 168; 30 Am. St. Rep. 528, citing the principal case. A statement of a farming landlord to his tenants that a neighbouring farmer was a horse thief, Dillard v. Collins, 25 Grattan (Virginia), 343. A false charge of larceny by a relative of defendant of the defendant's property, Moore v. Butler, 48 New Hampshire, 161 ; citing Pattison v. Jones, 8 B. & C. 580. A letter from a creditor to the husband of his debtor, a rich man, informing him of her bad conduct, for the purpose of compelling her to pay an ante-nuptial debt which she had ungratefully repudiated, Beals v. Thompson, 149 Massachusetts, 405. A letter from one dealer to another cautioning him to look out for a third because he will not pay, Brown v. Vannaman, 85 Wisconsin, 451 ; 39 Am. St. Rep. 860; “It does not appear that the defendant had any legitimate interest in the business conducted by the plaintiff, nor in the purchases made by him from the person to whom the letter was addressed, nor was he under any obligation or duty to make the communication, nor was the communication made in the interest of the public or good morals, but on the contrary, the defendant wrote and published the letter as a mere volunteer, acting from motives of personal gain to be secured through the injury of a rival in business. It certainly does not answer the description of either the second, third, or fourth kinds of privileged communications mentioned by Mr. Justice DANIEL, and held by the Supreme Court of the United States in the case cited. We think it is equally clear that it does not fall within the first kind there defined."

In St. James Military Academy v. Gaiser, 125 Missouri, 517; 28 Lawyers' Rep. Annotated, 667, it was held that a publication, in newspapers, by the resident clergyman of Macon, in respect to an academy where dancing was practised at receptions and a dancing school taught, to the effect that they “ regarded the institution under such administration as harmful to the moral and religious interests” of the community, and that they urged members of their churches and friends of good morals to absent themselves from and discountenance all receptions and other gatherings at the academy as long as dancing is allowed in the building, is sufficient to sustain an action for libel.

Mr. Justice DANIEL, in While v. Nicholls, 3 Howard (U. S. Sup. Ct.), 266, citing Wright v. Woodgate, 2 C. M. & R. 577, laid down the following as the recognized occasions of privileged communications :

“ The exception relied upon belongs to a class which, in the elementary treatises and in decisions upon slander and libel, have been denominated privileged communications or publications. They are as follows: 1. Whenever the author or publisher of the alleged slander acted in the bonâ fide discharge of a public or private duty, legal or moral, or in the prosecution of his own rights or interests. For example, words spoken in confidence or friendship as a caution, or a letter written confidentially to persons who employed A. as a solicitor, conveying charges injurious to his professional character in the management of certain concerns which they had entrusted to him, and in which the writer of the letter was also interested. 2. Anything said or written by a master in giving the character of a servant who has been in his employment. 3. Words used in the course of a legal or judicial proceeding, however hard they may bear upon the party of whom they are used. 4. Pub

Nos. 5, 6. — Toogood v. Spyring ; Hemmings v. Gasson. — Notes.

lications duly made in the ordinary mode of parliamentary proceedings. These are the acknowledged exceptions to the general rule.”

There is more difficulty as to the second branch of the Rule, there being difference as to the admissibility of such evidence with regard to the words being spoken before or after suit, and as to whether they may be allowed to affect the damages.

The second principal case is cited in Newell on Defamation, p. 778, and to the doctrine laid down in the second branch of the Rule the first principal case is cited in Garrett v. Dickerson, 19 Maryland, 450, with other English cases, and the following observations: “In passing upon the question of express malice, evidence of any other words or acts having reference to the subject-matter of the actionable words, may be submitted to the jury for the same purpose, whether such other words or acts were spoken and done before or after suit brought.”

In Kennedy v. Gifford, 19 Wendell (New York), 296, the Court spoke of “the propriety with which such evidence has been allowed by the cases, to prove the quo animo, so long as the subsequent conversations were confined to the subject of the original defamation.”

In Wallis v. Mease, 3 Binney (Penn.), 546, it was held that the plaintiff may prove other words, actionable in themselves, and spoken since suit brought, to show malice, but not to enhance damages. One Judge said: “ The speaking of the same words after suit brought, would raise a presumption in support of what was alleged, that such words had been spoken before suit brought; and on the same principle, would raise a presumption that they had been spoken maliciously.” Another said : “ If it were not so settled, I should very much doubt the propriety of such evidence, because it may take the plaintiff by surprise ; nor does it seem clear that the malice of the defendant's heart at the time of speaking the words for which the suit is brought, can be fairly inferred from words spoken at a subsequent time, no way relating to those which are the cause of action."

In Duvall v. Griffith, 2 Harris & Gill (Maryland), 30, it was held that subsequent words, of a similar purport to those declared on, might be proved to show malice. See Markham v. Russell, 12 Allen (Mass.), 573 ; Van Derveer v. Sutphin, 5 Ohio State, 293; Beals v. Thompson, 149 Massachusetts, 405.

The republication of a newspaper article, after the commencement of an action charging it to be libellous, with comments thereon by defendant, may be evidence of malice. Welch v. Tribune Pub. Co., 83 Michigan, 661; 21 Am. St. Rep. 629.

Where a physician sued a priest for slander, it was held proper to prove, in aggravation of damages, that after the action was brought, the defendant referred to it in presence of his congregation, and said, “ We shall see if the church shall destroy the vermin or the vermin the church.” Morasse v. Brochu, 151 Massachusetts, 567; 21 Am. St. Rep. 474, citing Beals v. Thompson, 149 Massachusetts, 405.

In Bodwell v. Swan, 3 Pickering (Mass.), 376, the Court observed : “As to the admission of evidence on the part of the plaintiff, of a repetition of the slanderous words even after the commencement of the suit, it is a diffi

Nos. 5, 6.

Toogood v. Spyring ; Hemmings v. Gasson.


cult question. Lord Kenyon in Charlter v. Barret, Peakes Cas. 22, admitted such evidence. In the case of Mead v. Daubigny, p. 125 of same book, he refused it. Again in Lee v. Huson, ibid., 166, he admits other libels to be proved. Lord ELLENBOROUGH, in Rustell v. Macquister, 1 Campb. 48, note, admitted it, saying, the judge must tell the jury not to give damages for it. SPENCER, J., in 7 Johns. R. 270, disapproved of the rule. TilgumAN, C. J., in Finnerty v. Tipper, 2 Campb. 75, zealously opposes the general doctrine, and yet seems to admit that all the cases were decided right.”

“ According to MANSFIELD, C, J., a repetition of the same words, or the same libel, may be proved, to show that the first was not heedless, but malicious; and we think that so far we may go; but we cannot agree, that if a man sue another for calling him a thief, he may prove that at another time afterwards he called him a murderer. This is a distinct calumny, for which the plaintiff has a right to his action, and though it may tend to prove malice as to the first words, so also will it necessarily go to enhance the damages ; for no jury can say how much or how little of the damages were given on account of this second charge. The words proved in the case before us to have been spoken after the first and since the commencement of the suit, were of similar import with those charged in the declaration, and therefore may be considered as a repetition, and so admissible in evidence.”

In Frazier v. McCloskey, 60 New York, 337, the Court said : “ We think that the Court below erred in admitting evidence of slanderous words uttered by the defendant after the commencement of this action. It was claimed that this evidence was admissible for the purpose of showing malice and enhancing the damages for the speaking of the words charged in the complaint. It has been decided that a repetition of the words charged in the complaint, or the speaking of them at times other than those stated in the complaint, may be shown; but in all these cases, the occasions on which the slanders were uttered were before the commencement of the action. In Root v. Lowndes (6 Hill, 518, 519) the admissibility of the evidence was placed, by Bronson, J., upon the ground that the judgment would be a bar to another action.

In Tilus v. Sumner, (44 N. Y. 266), evidence was admitted that the same slanderous charge was made by the defendant at times prior to those laid in the complaint; but the ruling was sustained by the Commission of Appeals solely on the ground that at the time of the trial an action for such prior slander was barred by the statute of limitations. The same decision was made, and for the same reason, in Inman v. Foster (8 Wend., 602). The plaintiff should never be permitted to give in evidence words which might be the subject of another action. (6 Hill, 518, supra, per Bronson, J.; De Pries v. Davis, 7 C. & P., 112, per TINDAL, Ch. J.) The reason is obvious; the defendant might be compelled to pay damages twice for the same injury. In the present case, the words allowed to be proven, being actionable per se, and having been spoken after the commencement of the action, a second action would have been clearly maintainable for them. They were spoken in Sept. 1872. This action was commenced in February, 1871. In Keenholts v. Becker (3 Denio, 346), it was expressly adjudicated that words spoken after the commencement of the action were not admissible to aggravate the damages; and we see no reason to question the correctness of that decision."

« PreviousContinue »