Kutcher v. Post Printing Co.

• Decision Date: 29 June 1915
• Docket Number: 796
• Citation: 147 P. 517,23 Wyo. 178
• Parties: KUTCHER v. POST PRINTING CO., ET AL
• Court: Wyoming Supreme Court

147 P. 517

23 Wyo. 178

KUTCHER v. POST PRINTING CO., ET AL

No. 796

Supreme Court of Wyoming

June 29, 1915

23 Wyo. 178 at 199.

Original Opinion of April 12, 1915, Reported at: 23 Wyo. 178.

Rehearing denied.

Fred H Blume and H. N. Gottlieb, on petition for rehearing.

The publication in the absence of express malice is conditionally privileged; it was incumbent upon plaintiff to plead express malice. (Cadle v. McIntosh (Ind.), 99 N.E. 779; Dickenson v. Hathaway (La.), 48 So. 136; Ranson v. West, 123 Ky. 457, 101 S.W. 885; Henry v Moberly, 6 Ind.App. 490, 33 N.E. 981; Liles v Gaster, 42 O. S. 631.) Express and implied malice are distinguished by the authorities. (Hemmens v. Nelson, 139 N.Y. 524, 34 N.E. 342.) Privilege is unnecessary, when truth is proven. The only use of privilege is in cases where the truth of the statement cannot be proved. (Newell Slander & Libel, p. 325.) Truth is privileged, but if the publication was made in good faith or upon probable cause, then it is privileged without reference to its actual truth. (Coleman v. McLellan, supra; Redgate v. Rousch, 61 Kan. 480, 59 P. 1050, 48 L. R. A. 236; State v. Balch, 31 Kan. 465, 2 P. 609; Marks v. Baker (Minn.), 9 N.W. 678; Herringer v. Ingberg, 91 Minn. 71, 97 N.W. 460; Peterson v. Steenerson (Minn. ), 129 N.W. 147; Gatewood v. Garrett (Va.), 56 S.E. 335; State v. Burnham, 9 N.H. 34, 31 A. D. 217; Palmer v. Concord, 48 N.H. 211, 97 A. D. 605; Briggs v. Garrett (Pa.), 2 A. 513; Myers v. Longstaff (S. D.), 84 N.W. 233; Boucher v. Clark P. Co. (S. D.), 84 N.W. 237; Ross v. Ward (S. D.), 85 N.W. 162; Schull v. Hopkins (S. D.), 127 N.W. 550; Shurtleff v. Stevens, 51 Vt. 501, 31 A. R. 698; O'Rourke v. Daily &c., 89 Me. 310, 36 A. 398; Tanner v. Stevenson (Ky.), 128 S.W. 879; Crane v. Water, 10 F. 619; Miner v. Post & Tribune Co. (Mich.), 13 N.W. 773; Lauder v. Jones (N. D.), 113 N.W. 907.

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

ON PETITION FOR REHEARING.

BEARD JUSTICE.

Counsel for defendants in error have filed a petition for a rehearing in this case, in which it is urged that the court erred in failing to decide the question of pleading malice; that the decision on the question of privilege is indefinite and confusing; that the court erred in holding that no privilege existed or exists in connection with the publication complained of; and that the judgment of the court is contrary to law. In the opinion handed down it is stated: "For the purpose of determining the questions presented by the demurrer, all matters well pleaded must be taken as admitted and for that purpose in this case the demurrer admits that plaintiff was Mayor of the City of Sheridan; that the statements contained in the published article were false, and were published maliciously." By that statement it was intended to express the opinion of the court that the allegation that the article was published maliciously was sufficient to admit evidence of express malice, if proof of that fact upon proper issue joined is necessary to entitle plaintiff to maintain the action. (Viele v. Gray, 18 How. (N. Y.) at 550 at 569.) With reference to the question of privilege, if we did not make our meaning clear we will try again. It is not contended that this publication was one of absolute privilege, but is of that class known as conditionally or qualifiedly priviledged. That is, it had reference to the acts of a public officer and with respect to his official conduct in which the public was interested. Such publication, when false, is privileged only when made in good faith and without malice. "Where the occasion upon which the words were published was a privileged one, the existence of malice shows that the party was not acting in the discharge of a duty, or in the exercise of a right which the law, upon the ground of public policy, would otherwise presume to have been the fact. The protection which the occasion affords is founded upon the just and rational principle, that one who is not a volunteer, but whose duty or right it becomes to discuss or speak of the character of another, is not to be restrained by the fear of an action for defamation, but may freely declare what he honestly and truly believes. The law presumes that he did so, and that presumption exempts him from all liability, though what he said was unfounded in fact, and though its effect may have been highly detrimental; but the existence of malice removes this presumption, and places him upon the footing of a mischievous and malicious defamer." (Viele v. Gray, 18 How. (N. Y.) 550, 567.) In the case here the publication is directly alleged to have been made maliciously, that is, without just cause or excuse, and is entirely inconsistent with the contention of counsel that the petition discloses that the publication was conditionally privileged. The publication of false defamatory matter when published maliciously is...