Kent v. Bongartz

• Decision Date: 26 June 1885
• Parties: KENT v. BONGARTZ et al.
• Court: Rhode Island Supreme Court

22 A. 1023

15 R.I. 72

KENT

v. BONGARTZ et al.¹

Supreme Court of Rhode Island.

June 26, 1885.

Exceptions to court of common pleas, Providence county.

Action for libel by Alfred J. Kent against John J. Bongartz and others. Judgment for defendants. Plaintiff excepted. Exceptions overruled.

Pane & Owen, for plaintiff Edward C Dubois, John H. Bongartz, William W. B. Hallett, Charles F. Baldwin, and George N. Bliss, for defendants.

DURFEE, C. J. This is an action on the case for libel. The plaintiff is a citizen of the town of East Providence, and was, when the alleged libel was published, a police officer or constable of the town. The alleged libel is a petition which purports to be signed by the defendants, as citizens of East Providence, and which is addressed to the town council, the body having power to appoint and remove the town constables. It asks the town council to remove the plaintiff from his office for the following reasons, which are set forth in the petition, and which the plaintiff complains of as false and defamatory, to-wit: "Reasons: Firstly,that said Kent is a man utterly devoid of principle, and uses his office more for the purpose of wreaking his personal spite than for the peace and harmony of the community; secondly, that Kent aforesaid is wholly ignorant of the duties of his office; thirdly, that said Kent has at various times heretofore maliciously and wickedly assaulted and arrested sundry persons who were entirely innocent of the charges charged by him against them." At the trial the plaintiff introduced testimony tending to prove that the petition was signed by some of the defendants, that it was published by presentation to the town council, and that the "reasons" were false. It is not claimed that there was any testimony other than that afforded by the charges contained in the "reasons," and the proof of their falsity, to show any actual or express malice to wards the plaintiff on the part of the defendants. At the conclusion of the plaintiff's testimony, the defendants moved for a nonsuit, on the ground that the petition was a privileged communication, and that the plaintiff could not maintain his action thereon without proof of express malice. The court granted the motion, and the plaintiff excepted. The plaintiff admits that the petition is of the class of communications which are conditionally, not absolutely, privileged, and consequently that the burden was on him to show by affirmative evidence that it was malicious. He contends, however, that the question of malice is a question of fact for the jury, and that, if the case had been left to the. jury, there was evidence from which they might have found express malice, namely, the grossness of the charges and the testimony to their falsity The question, then, is whether the charges themselves are of such a character that actual malice can be inferred from them simply on proof of their falsity. It is well settled that falsity alone is not enough. The author or authors of the communication may make it, and press it upon the attention of others, honestly believing it to be true, and acting from the purest and highest motives, when in fact it is false, and therefore actual malice is not to be inferred from mere falsity. Somerville v. Hawkins, 10 C B. 583; Harris v Thompson, 13 C. B. 333; Hart v Gumpach, L. R. 4 P. C. 430; Laughton v. Bishop of Sodor, Id. 495; Lewis v. Chapman, 16 N. Y. 369; Fowles v Bo wen, 30 N. Y. 20; Ormsby v. Douglass, 37 N. Y. 477; Shurtleff v....