Rosenberg v. Mason

• Decision Date: 17 September 1931
• Citation: 157 Va. 215
• Court: Virginia Supreme Court
• Parties: HARRY ROSENBERG v. MARY ETTA MASON.

Page 215

157 Va. 215

HARRY ROSENBERG v. MARY ETTA MASON.

Supreme Court of Virginia, Staunton.

September 17, 1931.

Present, Campbell, Holt, Epes, Hudgins and Gregory, JJ.

1. LIBEL AND SLANDER — Insulting Words — Privileged Occasion — Admissibility of Receipts in Plaintiff's Handwriting — Case at Bar. — The instant case was an action for insulting words spoken to plaintiff at the time of her discharge from defendant's employment by defendant's manager. Defendant filed a plea of not guilty but filed no plea of justification. Plaintiff claimed that upon the occasion of her discharge defendant's manager stated that he had found receipts by her not entered on the books and that he had moved her upstairs to get her away from the cash. While plaintiff was on the witness stand on cross-examination, counsel for defendant exhibited to her five receipts which defendant claimed had been given by plaintiff to customers for sums due defendant. The court refused to permit the introduction of these receipts or to allow plaintiff to be interrogated with reference to them, because the defendant had filed no plea of justification and defendant duly excepted. Later the plaintiff was examined by counsel for the defendant before the judge, in the absence of jury, with reference to these receipts and after this examination defendant again moved the court to permit him to introduce these receipts and the testimony of the plaintiff on this examination in evidence. But the court overruled the motion, to which ruling the defendant duly excepted. The refusal of the court to permit the introduction of these receipts and this testimony of the plaintiff, brought out under cross-examination, was assigned by the defendant as error.

Held: That this assignment of error was well made. The court erred in refusing to permit the introduction of such of these receipts as were known to the defendant at the time the words sued on were spoken and such other testimony of plaintiff as related to the facts which were known to the defendant at the time the words were spoken. Upon the pleadings, the testimony of plaintiff and statement of counsel it appeared that defendant's manager had knowledge of at least some of, if not all, the receipts and the facts to which plaintiff testified.

2. LIBEL AND SLANDER — Insulting Words — Privileged Occasion — Admissibility of Receipts in Plaintiff's Handwriting — Case at Bar. — The instant case was an action for insulting words by an employee against her employer. The words relied on were spoken by defendant's manager to plaintiff upon the occasion of her discharge. Defendant sought to introduce in evidence receipts to customers in the handwriting of plaintiff and plaintiff's testimony with reference thereto. The occasion upon which the words were spoken was clearly privileged; and this evidence was admissible both for the purpose of showing that the words did not exceed the scope of the privilege of the occasion, and to rebut any inference that they were spoken with actual malice.

3. LIBEL AND SLANDER — Insulting Words — Admissibility in Evidence of Receipts in Plaintiff's Handwriting — Privileged Occasion — Instructions that this Evidence could Not be Considered as Establishing Truth of Charges — Case at Bar. — The instant case was an action for insulting words by an employee against her employer. The words relied on were spoken by defendant's manager to plaintiff upon the occasion of her discharge. Defendant sought to introduce in evidence receipts to customers in the handwriting of plaintiff and plaintiff's testimony with reference thereto. No plea of the truth having been filed, the plaintiff would have been entitled to an instruction that such evidence could not be considered as establishing the truth of the charges or imputations as a bar to a recovery or in mitigation of a recovery of compensatory damages; but she was not entitled to have such of the facts as were known to the defendant excluded from the evidence where they were offered for the purpose of establishing the defense of privilege.

4. LIBEL AND SLANDER — Insulting Words — Truth and Privilege — Pleading. — In Virginia both the truth and privilege are complete defenses in bar of any action for defamation, whether it be for common law slander or libel, or for insulting words. The same rules of law with reference to the pleading and proof of these defenses apply in an action under section 5781, Code of 1919, as in an action for common law slander or libel.

5. LIBEL AND SLANDER — Insulting Words — Rule as to Necessity of Pleading Justification — Rule Has No Application to Exclude Evidence to Establish that the Occasion Was Privileged. — It is a general rule that the truth of defamatory words, written or spoken, can not be shown under the plea of not guilty, but there must be a plea of justification. But this rule has no application to exclude any evidence relevant and material to establish the fact that the alleged defamatory words constituted a privileged communication or publication, when that defense has been interposed under the general issue in good faith, and the evidence is offered for the purpose of establishing that defense under circumstances which show its relevancy and materiality for that purpose. This is true, even though such evidence may also tend to prove the truth of the charge, or be sufficient, had the truth been specially pleaded as a bar to the action, to sustain a finding by the jury that the defamatory charge is true.

6. LIBEL AND SLANDER — Insulting Words — Rule as to Necessity of Pleading Justification — Rule Has No Application to Exclude Evidence to Establish that the Occasion Was Privileged. — Where the defense of privilege has been interposed under the general issue as a defense, the test of the admissibility of evidence offered to prove the defense is its relevancy and materiality to establish that the words sued on constituted a privileged communication or publication, not whether such evidence tends to prove, or proves, the truth of the charge.

7. LIBEL AND SLANDER — Insulting Words — Privilege — Truth of Charge — Admissibility of Evidence. — It must be borne in mind that evidence is never relevant to prove privilege merely because it tends to prove, or proves, the truth of the charge. The fact that the charge is false is not alone sufficient to defeat the privilege of an occasion; nor can the fact that the charge is true ever of itself constitute the words a privileged communication or publication.

8. LIBEL AND SLANDER — Privilege — Evidence Admissible to Prove Privilege — Truth of Charge. — A careful search of the reported Virginia cases on this subject discloses no case in which, where under the general issue the defense of privilege has been in fact interposed, any evidence relevant and material to establish that defense has been held inadmissible because it tended to prove, or proved, the truth of the defamatory charge.

9. LIBEL AND SLANDER — Privileged Communications — Occasion Must Be Absolutely or Qualifiedly Privileged. — Defamatory words can not constitute a privileged communication or publication unless the occasion upon which they are used be either absolutely or qualifiedly privileged.

10. LIBEL AND SLANDER — Qualified Privilege — Essential Elements of Defense. — If the occasion be only qualifiedly privileged, three things must concur to render the communication or publication privileged (that is, to establish the defense of privilege): (1) the occasion upon which the words are used must be privileged; (2) the words used must not transcend the scope of the privilege of the occasion; and (3) the words must be used in good faith, without actual malice.

11. LIBEL AND SLANDER — Slander — Qualified Privilege — Admissibility of Evidence to Establish. — Whatever facts are relevant and material to establish any one, or more, of the three essential elements of the defense of privilege are necessarily relevant and material to the defense of privilege; and the same facts which tend most strongly to prove the truth of the charges, may also be not only relevant, but essential, to establish the defense of privilege.

12. LIBEL AND SLANDER — Privilege — Evidence — Facts and Circumstances Leading to Defamatory Words. — The facts and circumstances leading up to and surrounding the use of the alleged defamatory words are often relevant and very material upon the question of whether the occasion was privileged and to define the scope of the privilege of the occasion, if it be qualifiedly privileged. So also, the facts and circumstances surrounding the use of the words are often relevant and material to show whether the words used transcend the scope of the privilege where the occasion is only qualifiedly privileged. But the very facts which lead up to and surround the use of the words and constitute a part of the res gestae may also tend very strongly to prove the truth of the charge made.

13. LIBEL AND SLANDER — Privileged Occasion — Presence or Absence of Actual Malice. — If the evidence introduced, as a matter of law, fails to show that the occasion is privileged or shows that the words used of themselves transcended the scope of the privilege of the occasion, the defense must fail regardless of the presence or absence of actual malice; and evidence then offered tending to prove the absence of actual malice is immaterial in so far as it relates to the establishment of the defense of privilege.

14. LIBEL AND SLANDER — Privileged Occasion — Presence or Absence of Actual Malice. — Where the evidence introduced shows that the occasion is privileged and the words used do not of themselves transcend the scope of the privilege of the occasion, any evidence relevant to show that they were used in good faith, without actual malice, and particularly any evidence tending to show that the defendant believed the words to be true when he used them, is material to the issue.

15. LIBEL AND SLANDER — Insulting Words —...