Howard v. Dickie

• Decision Date: 23 May 1899
• Citation: 79 N.W. 191,120 Mich. 238
• Court: Michigan Supreme Court
• Parties: HOWARD v. DICKIE.

79 N.W. 191

120 Mich. 238

HOWARD v. DICKIE.

Supreme Court of Michigan

May 23, 1899

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

Action by Henry Howard against Samuel Dickie. There was a judgment for defendant, and plaintiff brings error. Affirmed.

T. E Barkworth, for appellant.

Parkinson & Campbell, for appellee.

MONTGOMERY J.

This is an action for verbal slander. The circuit judge, at the close of the plaintiff's case, directed a verdict for the defendant, and plaintiff brings error.

The plaintiff and defendant were trustees of the Methodist Episcopal Church of Albion. A quarterly conference was called for the purpose of electing trustees for the ensuing year. The defendant was an official member of such conference, and entitled to a vote. The trustees were, in accordance with the church discipline, nominated by the pastor. Among the names proposed was that of the plaintiff. The defendant thereupon moved that the name of F. W. Freese be substituted for that of plaintiff. A member of the board arose, and asked respondent for his reason for making the motion. The testimony is not entirely agreed as to what defendant said in response to the inquiry, but the disagreement is not, perhaps substantial. If it were, the statement bearing most strongly against the plaintiff must be assumed to have been made. This is that the plaintiff was dishonest; he was untruthful in his business dealings; that he was not only dishonest in his business, but also in the church he failed to live up to the vows he took when he joined; that this was common talk; that he (defendant) frequently heard it on the street. Defendant also stated that he was sorry Howard was not there; that he would prefer to say whatever he said in the presence of Mr Howard. He also said his personal relations with Mr. Howard had always been pleasant. Another witness testified that defendant, on a previous occasion, had referred to a charge that plaintiff had not kept his word in regard to the purchase of the college farm; that he had refused to carry out a verbal contract for the purchase of the farm. The plaintiff was called as a witness in his own behalf, and testified that he had not been guilty of dishonesty and deceit in his business dealings. The circuit judge was of the opinion that the occasion was privileged, that there was no proof of express malice, and that, therefore, the plaintiff was not entitled to recover. The ruling is challenged on both grounds. It is urged that the occasion was not privileged for the reason that, if the defendant believed that the plaintiff was wanting in integrity, or that he failed to live up to his vows as a member of the church, it was defendant's duty to take steps to expel plaintiff from the church, rather than to attempt to prevent his election to an office in the church. We cannot assent to this view. The defendant was called on to vote for or against the plaintiff, and it was certainly his duty, or at least his privilege, to make known, in response to an inquiry from another member of the conference, any facts within his knowledge which bore upon the question of plaintiff's fitness for the place; and if this was done without malice and in good faith, we have no doubt it was privileged. O'Donaghue v. McGovern, 23 Wend. 26; Dial v. Holter, 6 Ohio St. 238; Shurtleff v. Stevens, 51 Vt. 501; Kirkpatrick v. Eagle Lodge, 26 Kan. 384; Howard v. Thompson, 1 Am. Lead. Cas. 193. The question whether there is any evidence justifying an inference of malice is more difficult of determination. The rule is well settled that when it appears that the occasion is privileged the plaintiff has the burden of proving actual malice. The rule is stated in Howard v. Thompson, 1 Am. Lead. Cas. 193: "The showing of privileged occasion prima facie removes the quality of malice, and puts upon the...