Clark v. Brown

• Decision Date: 12 January 1875
• Citation: 116 Mass. 504
• Parties: Frank J. Clark v. Chauncey Brown
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 504

Frank J. Clark v. Chauncey Brown

Supreme Court of Massachusetts

January 12, 1875

[Syllabus Material]

Argued October 1, 1874

Worcester. Tort for slander. The words alleged in the first count were (omitting the innuendoes): "Joseph, I accuse Frank of stealing my iron bar, and I can prove it. By God, I can prove it. He has stole my iron bar, cart pin and ox-yoke. By God it is no secret, I am going to publish it." The words alleged in the second count were, "By God, Frank stole my iron bar, and I can prove it. There ain't no privacy about it, and I am going to spread it." Answer: 1. A general denial; 2. That the words were true; and 3. That the communications were privileged.

At the trial in the Superior Court, before Allen J., the evidence tended to show that the defendant had, before the speaking of the words, lost his iron bar, ox-yoke and cart-pin, and that he went to the house of the plaintiff's father, where the plaintiff, who was a minor, resided, and there uttered the words alleged in the first count to the plaintiff's father. The defendant's evidence tended to show that he did not use the words alleged, but words substantially different. The evidence tended to show that the words alleged in the second count were uttered to one Vinton, after the occasion above referred to.

The defendant offered evidence tending to show that the plaintiff had admitted that he took the defendant's iron bar ox-yoke and cart-pin, but did not take them to steal them, but to bother or plague the defendant. The plaintiff controverted this evidence, and denied that he took or admitted the taking the property.

The defendant, upon the question of damages, called witnesses who testified that the plaintiff's reputation for honesty and integrity was bad. The defendant offered to prove by the same witnesses that the plaintiff's reputation in respect to thieving was bad. This evidence was excluded, and the defendant alleged exceptions.

The defendant asked the judge to instruct the jury as follows: "1. The words of the defendant are to be taken in connection with the extraneous facts, and the question is whether, in connection with those facts, the words spoken were intended and understood to impute the crime of larceny. 2. If the plaintiff took the defendant's iron bar, ox-yoke and cart-pin without right, with the intent to deprive the defendant of the use of them, the defendant is not liable for saying he stole them. (Or, if the judge should decline to give the last, then) 3. If the plaintiff took without right the iron bar, ox-yoke and cart-pin of the defendant, with intent to deprive the defendant of their use, the defendant is not liable for saying the plaintiff stole them, unless the defendant knew the plaintiff intended to return the articles taken, or only intended to annoy him, without wholly depriving him of the property. 4. Evidence that the defendant, at the time of the utterance of words otherwise privileged, had ill-feeling or ill-temper against the plaintiff, would not tend to prove express malice, unless such ill-will or ill-temper did not arise from the occasion itself, but was wholly independent of the occasion. 5. The words uttered to Vinton, which are relied on as the substantial slander declared on in the second count, are not to be considered as evidence to show malice in uttering the words spoken to the father."

The judge declined to give any of the above instructions, but instructed the jury in substance as follows: "The plaintiff must prove that the defendant used the words alleged, or some of them sufficient to charge the crime of larceny as alleged. The words used are to be taken in their natural and ordinary meaning, unless there was something in the language or circumstances to indicate that a different meaning was intended. The word 'steal' might or might not import a felonious taking, according to the context in which it was used. The jury must find that the defendant intended and was understood, by the words used, to charge the plaintiff with larceny. The occasion of speaking the words charged in the first count was privileged, and the plaintiff must prove express malice in the defendant, to recover on that count. If the words were spoken by the defendant in good faith, believing them to be true, and for the protection or vindication of his rights, they would not be malicious. If the defendant believed them to be true, but uttered them from motives of ill-will toward the plaintiff, and for the purpose of injuring him, they would be malicious. To sustain this count, it must appear that the charge of larceny was made, not for the protection of the defendant's rights, but from motives of ill-will toward the plaintiff and a desire to injure him. Evidence of the speaking of similar words on other occasions is competent on the question of malice. The manner of speaking the words on this occasion, though not of itself sufficient to prove malice, is competent to be considered by the jury in connection with the other evidence, so far as it tends to show the motive of the defendant in uttering the words. To justify by proof of the truth of the words, if the defendant charged a larceny, he must prove a felonious taking; if the plaintiff took the articles in joke or to plague the defendant, not intending to deprive him of the property in them, it would not be larceny."

The jury found for the plaintiff, for $ 11.75. To all the rulings of the judge, excepting the ruling that the occasion of speaking the words to the father was privileged, and the burden on the plaintiff to show malice, and to the refusal to admit the evidence as to the reputation of the plaintiff in respect to thieving, and to the refusal to give the instructions requested, the defendant alleged exceptions.

Exceptions sustained.

F. P. Goulding, (J. M. Cochran with him,) for the defendant.

A. J. Bartholomew, for the plaintiff.

Devens, J. Colt & Morton, JJ., absent.

OPINION

Devens, J.

It is argued for the defendant that, while one may be justly held responsible for slanderous utterances in respect to an innocent person wrongfully defamed, yet that if such person by some misconduct of his own, has contributed to produce a belief in the truth of the words thus uttered, he cannot complain of the person expressing it; and that, therefore, if the plaintiff wantonly took the property of the defendant as an idle jest or for the purpose of annoyance, the defendant is not liable for saying that he stole the articles, unless he knew that the plaintiff...