Chapman v. Calder

• Decision Date: 27 December 1850
• Parties: Chapman <I>versus</I> Calder.
• Court: Pennsylvania Supreme Court

14 Pa. 365

Chapman versus Calder.

Supreme Court of Pennsylvania.

December 27, 1850.

ERROR to the Common Pleas of Wayne county.

COPYRIGHT MATERIAL OMITTED

The case was argued by Wm. H. Dimmick and J. M. Porter, for plaintiff in error; and by G. Mallery, for defendant in error.

The opinion of the court was delivered, Dec. 27, 1850, by ROGERS, J.

This is an action on the case, for a libel charging plaintiff with violence, fraud and perjury. Plea, not guilty. The paper, containing the libel, was addressed to the Rev. R. Scott, preacher in the Methodist church in Chenango and Deposit circuits, stating the charge and accusations against the defendant. On these charges there was a trial before an ecclesiastical court, regularly constituted, according to the rules and discipline of the church, which resulted in a report that the charges were not sustained. In 5 W. & Ser. 364, Petrie v. Rose, it is ruled that it is incompetent to a defendant in an action of slander, to give evidence, in mitigation of damages, of facts and circumstances which induced him to suppose the charge to be true at the time it was made, if such facts and circumstances tend to prove the charge, or form a link in the chain of circumstances to establish justification, even though he expressly disavows justification.

To the same point is Kay v. Fredrigal, 3 Barr 21, which recognises Petrie v. Rose, and rules that where the evidence goes to prove the truth of words charged as slanderous, it cannot be received, unless with a plea of justification.

In 9 Barr 313, Minesinger v. Kerr, it is said that, in Pennsylvania, it is now settled that, without the plea of justification, it is incompetent to a defendant in slander, to give evidence of particular facts which induced him to believe the charge true at the time it was made, if such facts are of a nature to establish the accusation, or may form links in a chain of circumstantial testimony tending to fasten guilt on the plaintiff. Justice Bell gives the true reason for the rule. You shall not, says the law, attack indirectly, if you fear to do it directly, by placing on the record an avowal of your intent, and thus put him on his guard. And in Updegrove v. Zimmerman, 1 Harris 619, the same point is ruled. In an action of slander, as is there decided, circumstances which do not amount to a justification, and from which the jury could not infer or presume that the party charged was guilty of the offence, may be given in evidence, on the plea of not guilty, in mitigation of damages, because they weaken the proof of malice. But where they lead directly toward the proof of guilt, they cannot be given in evidence on that plea.

If, then, this was a case of an ordinary action of slander or libel, (on the authority of the cases cited,) there would be no difficulty in supporting the decision of the court, excluding the evidence contained in the first and second bill of exceptions. But this is the case of a privileged communication. The charges which are the subject-matter of complaint, were addressed to, and acted upon in the ecclesiastical council, or forum, to which they were addressed. And the question is, whether the same rules are applicable, in such a state of facts, as in ordinary actions of slander or libel.

In one respect, the two classes of cases, which must be kept separate and distinct, are essentially different. In an ordinary action for a libel, probable cause although receivable in mitigation of damages, is not in bar of the action. Nothing but proof of the truth of the charge, under a plea of justification, is an answer to the suit. Whereas, in the case of a privileged communication, which this undoubtedly is, probable cause is in bar of the suit, as fully appears in the cases hereafter cited. This principle is expressly recognised and settled in Gray v. Pentland, 2 Ser. & R. 23. That was the case of an accusation preferred to the governor against a person in office. It was the case of a privileged communication. It was held that the defendant was answerable, if the charges did not originate in malice, and without probable cause. If there were probable cause, no action could be sustained, notwithstanding the charges were untrue. Justice YEATES says he has no doubt, that one, who, maliciously, wantonly, and without probable cause, asperses the character of a public officer, is liable. BRACKENRIDGE, J., says, the defendant must either prove the truth, or show reasonable ground or probable cause for their truth. TILGHMAN, C. J., says, any thing which satisfies the jury that the proceedings did not originate in malice, and without probable cause, is sufficient to excuse him.

The law was so laid down in the case of McMillan v. Birch, 1 Bin. 178, where the words for which plaintiff brought his action...