Garn v. Lockard

• Decision Date: 16 January 1896
• Citation: 108 Mich. 196,65 N.W. 764
• Court: Michigan Supreme Court
• Parties: GARN v. LOCKARD.

65 N.W. 764

108 Mich. 196

GARN v. LOCKARD.

Supreme Court of Michigan

January 16, 1896

Error to circuit court, Eaton county; Clement Smith, Judge.

Action by Leah V. Garn against Arthur M. Lockard. There was a judgment for defendant, and plaintiff brings error. Reversed.

Powers & Stine and Garry C. Fox, for appellant.

Lyman H. McCall and McPeek & Jones, for appellee.

MONTGOMERY J.

The plaintiff prosecuted defendant in an action of slander. The words complained of charged, in effect, that plaintiff was the keeper of a brothel, and are charged as having been uttered in the presence and hearing of Lewis Briggs and others. Substantially the language imputed to defendant was proven to have been used by him in the presence and hearing of Mr. Briggs, who testified that he heard a part of the conversation between Lockard and Pollock, in which the name of Mrs. Garn was mentioned, and stated that it was "on Sunday, right down in front of the post office, and Herb Pollock and Os Pierce, and some one else, I think, was also there." The evidence shows that Mr. Pierce was at the time city marshal, and that in the course of the conversation, defendant expressed a desire to have the marshal watch plaintiff's house, and secure evidence against her, and upbraided the officers for not doing their duty in suppressing such crimes in the city. The circuit judge was of the opinion that this statement was privileged, and that there was no proof of actual malice, and for these reasons directed a verdict for the defendant.

1. There can be no doubt at this day that a communication made to a public officer whose duty it is to act in reference to the matter, if made bona fide, and with the purpose of aiding in the detection or prosecution of offenses against the law is privileged, in the absence of express malice. Wieman v. Mabee, 45 Mich. 484, 8 N.W. 71. And it is also true as contended by defendant's counsel, that the question whether the occasion was privileged is for the court. Bacon v. Railroad Co., 66 Mich. 166, 33 N.W. 181. It is likewise a recognized rule that the presence of disinterested persons at a time when a communication is made respecting a crime which one has a right to make does not ordinarily and per se operate to remove the privilege. Toogood v. Sprying, 4 Tyrw. 594; Dunman v. Bigg, 1 Campb. 269, note; Brow v. Hathaway, 13 Allen, 242; Moore v. Thompson, 92 Mich. 498, 52 N.W. 1000. But, when the occasion is such that an inference of malice may be drawn from the circumstances, it is the province of the jury to determine whether malice exists. As was said in Bacon v. Railroad Co., supra: "The occasion determines the question of privilege. The language is only proper to be considered in connection with the question of malice." In that case it was also said: "The jury may find the existence of actual malice from the language of the communication itself, as well as from the extrinsic evidence." This statement should be taken subject to the qualification that if, upon the face of the publication, there be no intrinsic evidence whatever of malice, the court may determine this as a matter of law. Townsh. Sland. � L. � 288. But the circumstances of the publication in the present case are not such that we are able to say that there is no intrinsic evidence in the circumstances themselves from which a jury might draw an inference of malice. The publication was in a public place, in the presence of others than the officers. Under such circumstances, it is generally held to be a question for the jury whether or not the defendant was actuated by malice. Indeed, the cases cited by defendant's counsel fully support this view. In Toogood v. Spyring, supra, it was said: "Where, indeed, an opportunity is sought for of making such a charge before third persons which might have been made in private, it would afford a strong evidence of a malicious intention, and thus deprive it of that immunity which the law affords to such a statement when made with honesty of purpose; but the mere fact of a third person being present does not render the communication absolutely unauthorized, though it may be a circumstance to be left with others, including the style and character of the language used, to the consideration of the jury, who are to determine whether the defendant has acted bona fide in making the charge, or been influenced by malicious motives." So, in the case of Brow v. Hathaway, supra, it is said: "If unnecessary publicity be given to the statements, or if they go beyond what is reasonable in imputing crime, these circumstances may tend to show malice in fact." And in Padmore v. Lawrence, 11 Adol. & E. 380, it was held, under the circumstances of that case, that it should be left to the jury to say whether the charge was made recklessly and unwarrantably, and repeated before more...