Crafer v. Hooper

• Decision Date: 25 February 1907
• Citation: 194 Mass. 68,80 N.E. 2
• Parties: CRAFER v. HOOPER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 68

80 N.E. 2

CRAFER v. HOOPER.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1907

COUNSEL

Jas E. Young, Wilfrid J. Gaffrey, and Fredk. J. Daggett, for plaintiff.

Dewey & Allen, for defendant.

OPINION

LORING J.

1. The second paragraph of the first ruling asked for evidently was copied from the opinion in Swan v. Tappan, 5 Cush. 104, 111. The defendant's counsel overlooked the fact that that was a case where special damage had to be shown. In the case at bar the slander consisted in charging the plaintiff with a crime. In such a case special damage does not have to be shown to make out a case. For this reason the exception to the refusal to give the ruling must be overruled.

2. The second ruling asked for is in these words: 'If one who has lost goods by theft goes to the house of the person whom he suspects to have stolen them, and there, in reply to questions put as to the object of his visit, accuses that person of the theft and states the grounds of his accusation the communication is privileged, if made in good faith, with the belief that it is true, and without express malice although made in the presence of others, and although it may have been intemperate and excessive from excitement.'

The presiding judge gave this ruling, adding at the end of it 'Provided the excitement was such as would naturally be aroused by the circumstances.'

If the jury found as a face that there was intemperance and excess in the defendant's communication beyond such as naturally would be aroused by the circumstances, that was a fact which they were bound to consider in connection with the defense of privilege and the express malice which destroys that defense. If they believed that this excess did not in fact come from the heat and excitement of the situation, that fact would at least be evidence of express malice, the proving of which destroys the defense of privilege. Fryer v. Kennerley, 15 C. B. (N. S.) 422; Atwill v. Mackintosh, 120 Mass. 177.

3. The defendant's next contention is that the definition of express malice given by the presiding judge was wrong. It seems to be in accordance with the English law on the subject. See Lord Blackburn in Capital & Counties Bank v. Henty, 7 App. Cas. 741, 787; Bramwell, B., in Clark v. Molyneux, 3 Q. B. D. 235, 245; Pollock on Torts, 260, 261; Odgers on Libel & Slander (4th Ed.) 320 321. Whether it was or was not right under our decisions need not be decided. None of the rulings asked for by the defendant contained a definition of express malice, and no...