Henry v. Moberly

• Decision Date: 12 April 1893
• Citation: 6 Ind.App. 490,33 N.E. 981
• Parties: HENRY v. MOBERLY.
• Court: Indiana Appellate Court

6 Ind.App. 490

33 N.E. 981

HENRY

v.MOBERLY.

Appellate Court of Indiana.

April 12, 1893.

Appeal from circuit court, Owen county; J. V. Hadley, Judge.

Action by Mary R. Moberly against James R. Henry for libel. From a judgment for plaintiff, defendant appeals. Reversed.

W. R. Harrison, David E. Beem, and Willis Hickam, for appellant. Fowler & Pickens, for appellee.

DAVIS, J.

This action was instituted by appellee against appellant upon a charge of libel and slander. The complaint is in three paragraphs. The first two are based upon charges of libel; the third upon a charge of slander. To the third paragraph the court below sustained a demurrer, and the cause was tried upon the first and second paragraphs of the amended complaint charging libel. The trial resulted in verdict and judgment in favor of appellee for $2,000.

The first question which is presented for our consideration arises on the ruling of the circuit court in overruling the demurrer of appellant to the first and second paragraphs of the complaint. Each of these paragraphs charges that, prior to the commission of the grievances of which complaint is made, the appellee enjoyed a good name and reputation among her neighbors and all who knew her, and had never been suspected of dishonesty or of untruthfulness, nor had her moral character ever been called in question or suspected, and that for several years prior to June 21, 1889, appellee had been and was a school teacher, teaching school in the counties of Monroe and Owen, and in the graded schools of town of Gosport, Owen county, Ind. That at said date she was an applicant for a position as teacher in the graded school of said town of Gosport. That said James R. Henry, appellant herein, George T. Lee, and Asahel Wampler constituted the board of school trustees of said town before whom her applicationfor employment as a teacher was pending. That, when her said application came on to be heard and considered, said appellant filed his written protest before said board, objecting to and protesting against the employment of appellee by said board to teach in said schools, and in said protest uttered and published of and concerning appellee the following false, malicious, and libelous language, as set out in the first paragraph of the complaint, to wit: “Her [plaintiff meaning] character and conduct are not such as would give a right influence over her pupils;” and “for claiming wages not due her, and making statements which, in my opinion, she knew to be false, in order to obtain them;” and, as set out in the second paragraph of the complaint, the alleged libelous language is: “I, James R. Henry, submit the following as my protest against the employment of Mary R. Moberly as a teacher in the Gosport school: For claiming wages not due her, and making statements which, in my opinion, she knew to be false, in order to obtain them.” After setting out by innuendo in proper connection to each set of words pleaded in the respective paragraphs, each paragraph concludes by stating that she was employed by said board to teach in said school, and that, by reason of said libel, the license of appellee as a school teacher was revoked by the state superintendent of public instruction, and thereby she was prevented and prohibited from practicing her profession as a school teacher for one year, at which profession she could have earned the sum of $3 per day; and that by reason of said libel she has been injured in her good name and reputation,-all to her damage in the sum of $1,000. No prayer for judgment is contained in either of these paragraphs. The sole and only publication of the libel alleged in the complaint consists of the protest made by appellant to his associates on the board of school trustees on the occasion when the question as to whether appellee should be employed by them as a teacher in the public schools of the town of Gosport was under consideration. The written statements which are made the basis of the action relate to matters which it was the province of the trustees to investigate and determine. There is no averment in the complaint that either of the said defamatory expressions was ever uttered or published by appellant, or any one else, on any other occasion. The reading of the complaint discloses that the allegations relative to the revocation of the license and the loss of employment were pleaded as matters going to the question of special damages, on account of the uttering of the libel by appellant to his associates in office, and did not have reference to any subsequent or different publication or utterance of the libel. It is not alleged in either paragraph of the complaint that the libel which constitutes the basis of the action was uttered or published by appellant maliciously, or without probable cause. The only allegation bearing on this subject is that appellant, “in said protest, uttered and published of and concerning the plaintiff the following false, malicious, and libelous language.” There is no other averment in reference to the motives or intention of appellant. His good faith is not questioned in the complaint, except to such extent as may be predicated on the charge that the language was false and malicious. It is well understood that, for the writing of a libel under circumstances of absolute privilege, the law furnishes no redress. Odger, Sland. & L. (1st Amer. Ed.) 186; Garr v. Selden, 4 N. Y. 91. What circumstances constitute an absolute privilege it is not necessary to discuss, as no such question is involved in this case. There are, however, two classes of actions which may, in proper cases, be maintained for libel: (1) Where the occasion is not one of privilege; (2) where the occasion is one of qualified privilege. Odger, Sland. & L. (1st Amer. Ed.) 186, 264. In the first class of cases-an action for ordinary libel-no proof of malice is required beyond the proof of publication itself. Klinck v. Colby, 46 N. Y. 427; Odger, Sland. & L. 266, 269.

With these preliminary observations we proceed to the consideration of the question as to whether the libel mentioned in the complaint is, under the circumstances therein disclosed, privileged, and, if so, whether the complaint is sufficient. The law defining what are privileged communications has been long and definitely settled. A Minnesota authority which has been often quoted states it thus: “The rule is that a communication made in good faith, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty, is privileged; that in such case the inference of malice is cast upon the person claiming to have been defamed.” Marks v. Baker, 28 Minn. 162, 9 N. W. Rep. 679. The Pennsylvania court, in an able and elaborate resume of the authorities, quotes the above with approval. Briggs v. Garrett, (Pa. Sup.) 2 Atl. Rep. 513. The New York court, in a recent leading case, also says: “A libelous communication is regarded as privileged, if made bona fide, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, if made to a person having a corresponding interest or duty, although it contains criminating matter which, without this privilege, would be slanderous and actionable; and this, though the duty be not a legal one, but only a moral or social duty of imperfect obligation.” Byam v. Collins, 111 N. Y. 143, 19 N. E. Rep. 75. “When a person is so situated that it becomes right, in the interest of society, that he should tell a third person certain facts, then if he, bona fide and without malice, does tell them, it is a privileged communication. Davies v. Snead, L. R. 5 Q. B. 611; Townsh, Sland. & L. § 209; Harrison v. Bush, 5 El. & Bl. 344; Folk. Starkie, Sland. & L. (H. G. Wood's notes,) § 294. In this connection we quote from a number of additional authorities: The proper meaning of a privileged communication is said to be this: That the occasion on which it was made rebuts the inference arising prima facie from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact, and that the defendant was actuated by motives of personal spite or ill will, independent of the circumstances in which the communication was made.” Klinck v. Colby, supra. In the case last cited the court also says: “But, when the paper published is a privileged communication, an additional burden of proof is put upon the plaintiff, and he must show the existence of express malice.” When the communication is shown to be privileged, this fact rebuts the “inference prima facie arising from a statement prejudicial to the character of the plaintiff, and puts the burden upon him to prove malice in fact.” Townsh. Sland. & L. § 209. In discussing the libelous charge in Klinck v. Colby, supra, the court said: “The terms used are strong and plain, it is true; but, if there was no actual malice, the use of plain words does not take away the privileged character of the communication. Intent makes the libel in such case; strong words do not.” In the case of Thorn v. Blanchard, 5 Johns. 529, Clinton, senator, in the course of his decision uses this language: “The case before us cannot be considered as an ordinary libel, where malice is to be inferred from the face of the libel. It was at all events incumbent on the prosecutor to prove express malice; to demonstrate that an evil intention existed; to show, in the words of Hawkins, that the petition was entirely false, malicious, and groundless, and instituted, not with a desire to go through with it, but only to expose the defendant's character, under the show of a legal proceeding.” “Whether, within the rule as defined in these cases, a libelous...