Billings v. Fairbanks

• Decision Date: 03 March 1885
• Citation: 139 Mass. 66,29 N.E. 544
• Parties: Charles A. Billings v. Jacob H. Fairbanks[3]
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 66

29 N.E. 544

Charles A. Billings v. Jacob H. Fairbanks^[3]

Supreme Judicial Court of Massachusetts

March 3, 1885

Argued November 26, 1884

Worcester.

Exceptions sustained.

G. A Torrey, for the defendant.

F. A Gaskill & H. B. Verry, for the plaintiff.

C. Allen & Colburn, JJ., absent. Holmes, J.

OPINION

Holmes, J.

This is an action for slander, which has been before this court already. 136 Mass. 177. The case for the plaintiff as presented at the second trial, after the decision cited, so far as material, was in brief as follows: On February 21, 1882, the plaintiff and one Leonard Foster went to the defendant's house. While the plaintiff was out of the room, Foster said to the defendant that the plaintiff had been charged with taking the defendant's money, asked him various particulars as to his mode of keeping his money, and whether he had any proof that the plaintiff took it. The defendant replied, that he knew he took it, the books showed it. Foster said that he should demand proof; to which the defendant made an angry answer, adding, "You'll back him, will you?" Then the plaintiff came in and told the defendant that he had accused the plaintiff of stealing his money; which the defendant denied, but then said that he knew the plaintiff took it, "and another man knows it too." Foster asked the defendant if he had any proof of it. He said, "No doubt of it; the books show it, and I can see it in the plaintiff's eye." The defendant also said, at some time during the interview, "I have no doubt he took the money," as averred in the declaration. This statement in the plaintiff's presence is the first slander relied on.

On February 27, the plaintiff, with one Frank L. Fairbanks, a nephew of the defendant, again went to the defendant's house. The plaintiff, as before, told the defendant that he had accused the plaintiff of stealing the money, which the defendant again denied. Fairbanks then told the defendant that he thought the plaintiff's position was right, and asked him if he had any proof. The defendant answered, "I know he took the money, but I can't prove it." This is the second slander relied on. In the course of the interview, the defendant showed Fairbanks his books, and how he kept his cash, and how careful he had been not to have any mistake with it.

We assume, in favor of the plaintiff, that there was evidence tending to show that the defendant did not fully believe the plaintiff guilty at the time of these talks, although that may be questionable. There is no evidence that he did not suspect him. The court ruled that the talks were privileged, and that, unless express malice was proved, the plaintiff could not recover, and further instructed the jury as follows: "Communications and statements by a person immediately concerned in duty or interest in the subject to which the communication relates, for the purposes of investigation in the matter of that duty, or protecting that interest, in the full belief that the communications are true, and without any malicious motive, are privileged. Such communications are not the less privileged if made in the presence and hearing of others than the parties immediately interested, or because the communications are expressed in a more immoderate or vehement manner than the occasion required, from excessive excitement. If a privileged communication is made with unnecessary publicity, or goes beyond what is reasonable in imputing crime, or if there is evidence that the person making the privileged communication knew that it was false, or had no sufficient reason or cause to believe it to be true, or that he improperly sought or made the occasion to utter defamatory words, these facts would tend to prove malice."

After the jury had been out two hours, they submitted the following inquiry in writing to the court: "The defendant admitted that he did not fully believe the plaintiff took the money. Did that fact make his statements in...