Brown v. Massachusetts Title Ins. Co.

• Decision Date: 26 February 1890
• Citation: 23 N.E. 733,151 Mass. 127
• Parties: BROWN v. MASSACHUSETTS TITLE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 127

23 N.E. 733

BROWN v. MASSACHUSETTS TITLE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1890

COUNSEL

Jerome H. Fiske, for plaintiff.

Samuel J. Elder, for defendant.

OPINION

W ALLEN, J.

Before the Statute of 1855, c. 396, the defendant, in an action for libel, could prove the truth of the alleged libel in justification and defense. That statute, as enacted in Pub.St. c. 167, § 80, provides that, in an action for a libel, the defendant may give in evidence the truth of the matter charged as libelous; "and such evidence shall be deemed a sufficient justification, unless malicious intention is proved." By "malicious intention," something different from implied malice, or the malice which may be inferred from the publication, is plainly intended. What is meant is actual, express malice,--malice in the popular sense of hatred or ill will, (Com. v Damon, 136 Mass. 441; Lothrop v. Adams, 133 Mass. 471;) or, in the words of the ruling excepted to in the case at bar, "malicious intention at the time to injure the individual." The plaintiff contends that malice may be inferred, as matter of law, from the fact and circumstances of the publication. But the malicious intention intended by the statute is a fact to be found by the jury under the instructions of the court. The question what will be sufficient to prove malicious intention as a fact is not presented in this case.

The president and the vice-president and general manager of the defendant were called by it as witnesses and were allowed to testify, against the objection of the plaintiff, that they had not, and that they did not, know that any officer or employe of the defendant had any hatred or ill will or malicious intention towards the plaintiff in the publication of the alleged libel. We think that this evidence was properly admitted. The plaintiff had offered evidence tending to show that the publication was made by the defendant with malicious intention. The malicious intention of the corporation would be shown by that of its officers and agents. The evidence was competent only upon the question whether the witness, whose act with malicious intention would be that of the defendant, had such intention. As the intention of the officers and agents of the defendant in making or permitting the publication was the fact in question, it was competent for the defendant to call each or any of its officers to...