King v. Patterson

• Decision Date: 31 March 1887
• Citation: 9 A. 705,49 N.J.L. 417
• Parties: KING and another v. PATTERSON.
• Court: New Jersey Supreme Court

9 A. 705

49 N.J.L. 417

KING and another

v. PATTERSON.

Court of Errors and Appeals of New Jersey.

March Term, 1887.

(Syllabus by the Court.)

In error to the supreme court.

The plaintiff below, Emma Patterson, was a trader engaged in the retail clothing business at Red Bank, in this state. The defendants, King and Douglas, in connection with others, conduct a mercantile agency in New York city. Mrs. Patterson sued the defendants for the publication of defamatory words affecting her circumstances and financial condition. The defense was that the publication in question was a privileged communication. The assignment of errors was upon the rulings and the charge of the trial judge.

Philemon Woodruff and Thomas McCarter, for plaintiff in error.

Flavel McGee, contra.

DEPUE, J. Defamatory words uttered in a privileged communication are not actionable unless there be proof of actual malice. If such words are uttered bona fide, on a privileged occasion, in an honest belief that they are true, the party injured is remediless. Spill v. Maule, L. R. 4 Exch. 232; Clark v. Molyneux, 3 Q. B. Div. 237. A wrong or malicious motive is essential to the action, where the communication is privileged. On the other hand, where the publication imputes a crime, so as to be actionable per se, or is actionable only on averment and proof of special damages, if the publication is not justified by proof of its truth, or by the privileged occasion of publication, the law conclusively presumes malice such as is essential to the action. In such cases good faith and an honest belief in the truth of the publication will be no defense. The absence of a malicious motive may protect against exemplary damages, but will not bar the action. In a legal sense, malice, as an ingredient of actions for slander or libel, signifies nothing more than a wrongful act done intentionally, without just cause or excuse. Cooley, Torts, 209, and note. A defamatory publication, under the pretext of a privileged communication, where the privilege does not exist, is a publication without just cause or excuse, and in a legal sense malicious, and therefore actionable, though it be made without a malicious motive. The burden of proving that the occasion of publication was privileged is on the defendant. The issue whether the words were published in good faith, or from a malicious motive, so as to give or take from them the protection of the occasion, arises only when it has been shown that the occasion of speaking or publishing is one that is privileged. Where the occasion is privileged it is for the plaintiff to establish that the statements complained of were made from an indirect or improper motive, and not for a reason which would otherwise render them privileged. Clark v. Molyneux, supra; Pol. Torts, 227, 234.

The fundamental question in this case upon which the issue hinges is whether the notification sheet of November 5, 1884, containing a false statement on which the action is founded, was published and issued under such circumstances, and in such a manner, as to bring it within the class of communications which the law denominates "privileged communications."

The occasions which give rise to the privilege of speaking or publishing words which otherwise would be defamatory and actionable are various. Thus, memorials to officers of state respecting the conduct of magistrates and officers; comments by electors upon the character of candidates for office; communications in matters of public interest, in which the public generally is concerned; communications in the interest of third persons, or for the protection of the party's own interest; communications respecting the character of servants, or the credit and responsibility of tradesmen, or made in the performance of social, moral, or legal duties,—come within the class of privileged communications. Whether the privilege is available as a defense depends upon the circumstances of the particular case, the situation of the parties, the persons to whom, the circumstances under which, and the manner in which, the communication was made. A publication which in one case would be justifiable, in another case would be without justification. A criticism of the public acts of a candidate for office may be inserted in a public newspaper, or be proclaimed by a circular; but such publicity given to comments derogatory to the character of a servant, or to the financial standing of a trader, would be illegal. A person with a view of obtaining information on a subject in which he has a personal interest, or in offering a reward for bills of exchange lost out of his possession, may in some cases justifiably insert in a newspaper an advertisement containing imputations upon the character of others; as in Delany v. Jones, 4 Esp. 191, and Finden v. Westlake, Moody & M. 461. He may justifiably advertise in that public manner the discharge of an agent whose employment had been that of a general collection agent, as in Hatch v. Lane, 105 Mass. 394; but such publicity to the discharge of his cook or his butler would be without justification. In some instances a voluntary imparting of information will be justified; in other cases the privilege applies only to information in response to inquiries. The subject may be one that is privileged, and a communication on that subject be unprivileged if the restraints and qualifications imposed by law upon the publicity to be given the communication be not observed. If such restraints and qualifications are disregarded, the communication is unprivileged and actionable, though made from the best of motives. In such cases good faith and honest belief will be of no defense. The act of communicating defamatory matter to persons with respect to whom there is no privilege is an act without legal justification or excuse, and therefore actionable.

When the restraints and qualifications imposed by law upon the publicity to be given to the publication are shown to have been observed, it is then, as was said by the court in Laughton v. Bishop of Sodor and Man, L. R. 4 P. C. 509, "all we have to examine is whether the defendant stated no more than he believed, or might reasonable believe; if he stated no more than this, he is not liable." Expressions of similar import are frequent in judicial opinions, but they have uniformly been preceded or accompanied by a judicial determination that the matter of publication was such as to make the communication privileged. No judicial precedent has ever treated good faith and honest belief, standing alone, as a justification of defamatory words.

The plaintiff was engaged in the retail clothing business at Red Bank, in the county of Monmouth. The defendants conduct a mercantile agency in the city of New York. Their business consists in collecting information as to the credit and financial standing of dealers throughout the country. Four times a year they publish a book of ratings called the "Reference Book," and twice in each week a notification sheet, called the "Mercantile Agency Notification Sheet." In the Notification Sheet of November 5, 1884, there was published this information: "New Jersey. Red Bank. Patterson, Emma. Chattel mortgage, Samuel Ludlow, $1,385. Clothing." The publication was false, and for the injury to the plaintiff's business occasioned by it this suit was brought.

The suit is an action by a trader for false statement concerning her credit, and the defense that the publication was privileged must be decided upon those legal rules that give a privilege to communications of that character. The trial judge charged that a communication made bona fide, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it may contain criminatory matter which, without this privilege, would be slanderous or libelous, and actionable. This instruction was taken from the opinion of the queen's bench in Harrison v. Bash, 5 El. & Bl. 344. It conforms to the rule adopted in Whiteley v. Adams, 15 C. B. (N. S.) 392, and in Laughton v. Bishop of Sodor and Man, L. R. 4 P. C. 495, in every respect material to this suit, and accords with the decision of the court of exchequer in Toogood v. Spyring, 1 Cromp. M. & R. 181.

In the latter case the defendant, a tenant of the earl of Devon, required some work to be done on the premises occupied by him, and the plaintiff, who was generally employed by Brinsdon, the earl's agent, as a journeyman was sent by him to do the work. He did it, but in a negligent manner, and during the progress of the work became intoxicated, and some circumstances occurred which induced the plaintiff to believe that he had broken open the cellar door, and so obtained access to his cider. The court held that the communication of these facts to Brinsdon, the agent of the earl, who, in virtue of his employment had a duty to perform in the premises, was privileged; but that a communication at another time to one Taylor, a third person, who had no interest in the subject-matter, and no duty to perform in reference to it, was not privileged.

The judgment of the court in Toogood v. Spyring sanctions the rule adopted by the trial judge in this case. The defendants were engaged of their own volition, and for their own profit, in the business of collecting and disseminating information as to the character, credit, and pecuniary responsibility of traders throughout the United States. Their course of business was to transmit a copy of the Record Book and the semi-weekly Notification Sheet, containing the information they collected to each of their subscribers, who paid the required annual subscription, and signed a contract to hold such communications as confidential, without regard to the existence or non-existence of an interest by the subscribers in the information communicated. The number of subscribers to whom...