Doane v. Grew

• Decision Date: 20 January 1915
• Citation: 107 N.E. 620,220 Mass. 171
• Parties: DOANE v. GREW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

220 Mass. 171

107 N.E. 620

DOANE v. GREW.

Supreme Judicial Court of Massachusetts, Suffolk.

January 20, 1915

Jan 20, 1915.

COUNSEL

John H Casey and Frederic J. Muldoon, both of Boston, for plaintiff.

Warren, Garfield, Whiteside & Lamson, of Boston (Alex. Whiteside and Cleveland Bigelow, both of Boston, of counsel), for defendant.

OPINION

LORING J.

1. The defendant's exceptions to the charge of the presiding judge raise questions as to a defendant's liability for false defamatory words spoken on a privileged occasion.

If the occasion on which slanderous words are spoken is a privileged one and the defendant (in saying what he said) was acting under the privilege created by the occasion, a defense is made out even if what he said was not in fact true. Where inquiries are made as to the character and capabilities of a former servant, the occasion is a privileged one. Of that there is no question. It is the typical case of a privileged occasion.

Where the occasion is a privileged one the plaintiff can hold the defendant liable if he proves that (in saying what he said of the plaintiff) the defendant did not in fact use his privilege. That is to say: Although the defendant (in answering questions as to the character and capability of a former servant) is protected if he was 'acting in bona fide answer to the needs of the occasion,' yet if malice in fact is proved the defendant is liable. By malice in fact is meant 'the willful doing of an injurious act without lawful excuse.' In this connection it means that (although the occasion was a privileged one) the defendant, in saying what he said of the plaintiff, was acting outside his privilege and not under it. To prove malice in fact (that the defendant was acting outside his privilege and not under it) the plaintiff may introduce direct evidence that the defendant made the untrue defamatory statements out of hatred for the plaintiff. That is perhaps the most common way of proving malice in fact in this connection.

But it is not the only way of proving malice in fact in this connection, namely, that the defendant was acting not under, but outside, his privilege. In Gott v. Pulsifer, 122 Mass. 235, 23 Am. Rep. 322, it was assumed that publishers of newspapers, in making statements of facts which were not true, stand on the same footing as persons asked as to the character and capabilities of a former servant. On that assumption it was there held (in effect) that if an article in the defendant's newspaper containing an untrue statement of fact was written for the sake of writing a brilliant article in reckless disregard of the rights of the plaintiff malice in fact was made out. It is now settled that the assumption made in Gott v. Pulsifer is not law. Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N.E. 1, 13 L. R. A. 97, affirming Sheckell v. Jackson, 10 Cush. 25. But on the assumption made in Gott v. Pulsifer, the decision in that case is correct. So in a case where the slanderous words uttered by the defendant on a privileged occasion are based upon what he has heard, if there is great excess in repeating what he has heard there is evidence that the defendant was not acting within the privilege which the occasion gave him, but outside it. See Clark v. Molyneux, 3 Q. B. D. 237.

Malice in fact which destroys the defense of privilege must be taken to mean that the defamatory words, although spoken on a privileged occasion, were not spoken pursuant to the right and duty which created the privilege but that they were spoken from some other motive. See in this connection Lord Blackburn in Capital and Counties Bank v. Henty, 7 App. Cas. 741, 787. 'Duty' in this connection is not confined to obligations enforced by law. Giving information as to the character and capabilities of a former servant (for example) is not a legal obligation enforced by law. The law recognizes its existence as a social obligation which cannot be performed unless it creates a privileged occasion.

It is apparent that there are very many ways of proving malice in fact in this connection, and that they cannot be enumerated in advance.

It follows from what has been said that the parts of the charge to which exceptions were taken did not properly present to the jury the questions to be decided by them in this case.

But the objection to one part of the charge excepted to goes deeper than that. In one part of the charge excepted to the presiding judge in effect told the jury that the defendant was liable (in case they found that the plaintiff did not in fact abuse the defendant's child) if the defendant did not honestly believe that fact, or if believing it she did not have sufficient cause to warrant the belief but was reckless or careless in trusting to the statements made by Mrs. MacMahon and her (the defendant's) children.

When inquiry is made of a person as to the character and capabilities of a former servant, the person to whom the inquiry is addressed would not do his whole duty if he should confine his answer to facts which he knows to be facts of his own knowledge. Nor would he do his whole duty if he should confine himself to giving information which he has fully investigated. Indeed he would fail in doing his full duty if he should omit to impart any material information which has come to him, even if he has not attempted to investigate it at all. Bramwell, L. J., in Clark v. Molyneux, 3 Q. B. D. 237, 244, went even farther and laid down the proposition that:

'A person may honestly make on a particular [privileged] occasion a defamatory statement without believing it to be true; because the statement may be of such a character that on that occasion it may be proper to communicate it to the particular person who ought to be informed of it.'

The person inquired of on a privileged occasion must be fair to the person making the inquiry as well as to the person about whom the inquiry is made. Where he has information (whether it has or has not been investigated by him), it is his duty to state in answer to the inquiry that he has the information, giving it (as the defendant did in the case at bar) as information concerning a fact as distinguished from a statement of the existence of the fact. Where the person to whom the inquiry is put makes a statement that he has information as to a fact (as distinguished from a statement that the fact exists) his privilege does not depend upon whether he in good faith believes the fact or whether he ought to have believed the fact or was reckless and careless in believing the fact. Where the person to whom the inquiry is put makes that kind of answer he does not state that the fact is or is not a fact or that he believes or does not believe the fact. The person who makes the inquiry is entitled to the information which has come to the person to whom the inquiry is addressed, and the statement that information has come to him, if honestly made in answer to the inquiry, is a privileged communication. The good faith in question in that case is not good faith in believing the fact, but good faith in giving the information that the needs of the privileged occasion call for. A charge to a jury substantially the same as the charge here in question, in a case (in its legal aspects) substantially the same as the case at bar, was held to be incorrect by the English Court of Appeal in Clark v. Molyneux, 3 Q. B. D. 237.

There have been a number of cases in Massachusetts in which the question of what malice in fact means (within the rule that where malice in fact is proved the defendant is liable for false defamatory words spoken on a privileged occasion) has been discussed. See Remington v. Congdon, 2 Pick. 310, 13 Am. Dec. 431; Bodwell v. Osgood, 3 Pick. 379, 15 Am. Dec. 228; Swan v. Tappan, 5 Cush. 104; Brow v. Hathaway, 13 Allen, 239; Atwill v. Mackintosh, 120 Mass. 177; Gott v. Pulsifer, 122 Mass. 235, 23 Am. Rep. 322; Billings v. Fairbanks, 139 Mass. 66, 29 N.E. 544; Wright v. Lothrop, 149 Mass. 385, 21 N.E. 963; Howland v. Flood, 160 Mass. 509, 36 N.E. 482; Squires v. Wason Mfg. Co., 182 Mass. 137, 65 N.E. 32; Robinson v. Van Auken, 190 Mass. 161, 76 N.E. 601; Crafer v. Hooper, 194 Mass. 68, 80 N.E. 2; Christopher v. Akin, 214 Mass. 332, 101 N.E. 971, 46 L. R. A. (N. S.) 104; and there may be others.

The decisions actually made in these cases do not seem to be in conflict. But it is not possible to harmonize all that was said when these cases were decided. This has come, to some extent at least, from an assumption that the question for the jury in such cases is always the same. But that is not so. Given the definition which has been stated above, the exact question to be passed upon by the jury in each case depends or may depend upon the form in which the defamatory words were put by the defendant, taken in connection with the knowledge or information which the defendant had as to the matter of the defamatory statements. Take an example. Suppose that bare information of a fact had come to a defendant who was inquired of with respect to the capabilities and character of a former servant and the defendant was ignorant as to the trustworthiness of the source from which the information came; if under these circumstances he should state the existence of the fact as of his own knowledge, the question to be passed upon by the jury is a very different one from that which is presented when there is evidence that the statement made by the defendant matches exactly the information or knowledge which he had received and the accuracy of the source from which that information or knowledge came. It is manifest that there are a number of intermediate cases between these two, where there is a discrepancy between the statements made and...