Humfrey now moved for a new trial, on the ground of misdirection.[[422]]
Alderson, B. In this case, had there been no by-standers who could understand the words as imputing felony, or who knew all about the affair respecting which they were uttered, the judge’s direction would have been wrong, for it would then be damnum absque injuria, the injuria being the having no lawful occasion to impute felony.
Parke, B. The witness appears to have been well acquainted with the affair to which the words related. If the by-standers were equally cognizant of it, the defendant would have been entitled to a verdict; but here the only question is, whether the private intention of a man who utters injurious words is material, if by-standers may fairly understand them in a sense and manner injurious to the party to whom they relate, e. g., that he was a felon.
Some doubt being suggested as to the facts proved, the court conferred with Rolfe, B.; and the next day,
Pollock, C. B., said, We find from my Brother Rolfe that there were several by-standers who not only might but must have heard the expressions which form the subject of this action. That disposes of the case as to the matter of law. Words uttered must be construed in the sense which hearers of common and reasonable understanding would ascribe to them, even though particular individuals better informed on the matter alluded to might form a different judgment on the subject.
Rule refused.[[423]]
BROMAGE v. PROSSER
In the King’s Bench, Easter Term, 1825.
Reported in 4 Barnewall & Cresswell, 247.
Bayley, J., now delivered the judgment of the court.[[424]] This was an action for slander. The plaintiffs were bankers at Monmouth, and the charge was, that in answer to a question from one Lewis Watkins, whether he, the defendant, had said that the plaintiff’s bank had stopped, the defendant’s answer was, “It was true, he had been told so.” The evidence was, that Watkins met defendant and said, “I hear that you say the bank of Bromage and Snead, at Monmouth, has stopped. Is it true?” Defendant said, “Yes, it is; I was told so.” He added, “It was so reported at Crickhowell, and nobody would take their bills, and that he had come to town in consequence of it himself.” Watkins said, “You had better take care what you say; you first brought the news to town, and told Mr. John Thomas of it.” Defendant repeated, “I was told so.” Defendant had been told, at Crickhowell, there was a run upon plaintiff’s bank, but not that it had stopped, or that nobody would take their bills, and what he said went greatly beyond what he had heard. The learned judge considered the words as proved, and he does not appear to have treated it as a case of privileged communication; but as the defendant did not appear to be actuated by any ill will against the plaintiffs, he told the jury that if they thought the words were not spoken maliciously, though they might unfortunately have produced injury to the plaintiffs, the defendant ought to have their verdict; but if they thought them spoken maliciously, they should find for the plaintiff: and the jury having found for the defendant, the question upon a motion for a new trial was upon the propriety of this direction. If in an ordinary case of slander (not a case of privileged communication), want of malice is a question of fact for the consideration of a jury, the direction was right; but if in such a case the law implies such malice as is necessary to maintain the action, it is the duty of the judge to withdraw the question of malice from the consideration of the jury: and it appears to us that the direction in this case was wrong. That malice, in some sense, is the gist of the action, and that therefore the manner and occasion of speaking the words is admissible in evidence to show they were not spoken with malice, is said to have been agreed (either by all the judges, or at least by the four who thought the truth might be given in evidence on the general issue) in Smith v. Richardson, Willes, 24; and it is laid down in 1 Com. Dig. action upon the case for defamation, G 5, that the declaration must show a malicious intent in the defendant, and there are some other very useful elementary books in which it is said that malice is the gist of the action, but in what sense the words malice or malicious intent are here to be understood, whether in the popular sense, or in the sense the law puts upon those expressions, none of these authorities state. Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally and without just cause or excuse. If I maim cattle, without knowing whose they are; if I poison a fishery, without knowing the owner, I do it of malice, because it is a wrongful act, and done intentionally. If I am arraigned of felony, and wilfully stand mute, I am said to do it of malice, because it is intentional and without just cause or excuse. Russell on Crimes, 614, N. 1. And if I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not, and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces? And I apprehend the law recognizes the distinction between these two descriptions of malice, malice in fact and malice in law, in actions of slander. In an ordinary action for words, it is sufficient to charge that the defendant spoke them falsely, it is not necessary to state that they were spoken maliciously. This is so laid down in Style, 392, and was adjudged upon error in Mercer v. Sparks, Owen, 51; Noy, 35. The objection there was, that the words were not charged to have been spoken maliciously, but the court answered, that the words were themselves malicious and slanderous, and, therefore, the judgment was affirmed. But in actions for such slander as is prima facie excusable on account of the cause of speaking or writing it, as in the case of servant’s characters, confidential advice, or communications to persons who ask it, or have a right to expect it, malice in fact must be proved by the plaintiff, and in Edmonson v. Stevenson, 1 Term Rep. 110, Lord Mansfield takes the distinction between these and ordinary actions of slander. In Weatherstone v. Hawkins, Bull. N. P. 8, where a master who had given a servant a character, which prevented his being hired, gave his brother-in-law, who applied to him upon the subject, a detail by letter of certain instances in which the servant had defrauded him; Wood, who argued for the plaintiff, insisted that this case did not differ from the case of common libels, that it had the two essential ingredients, slander and falsehood; that it was not necessary to prove express malice; if the matter is slanderous, malice is implied, it is sufficient to prove publication; the motives of the party publishing are never gone into, and that the same doctrine held in actions for words, no express malice need be proved. Lord Mansfield said the general rules are laid down as Mr. Wood has stated, but to every libel there may be an implied justification from the occasion. So as to the words, instead of the plaintiff’s showing it to be false and malicious, it appears to be incidental to the application by the intended master for the character; and Buller, J., said, this is an exception to the general rule, on account of the occasion of writing. In actions of this kind, the plaintiff must prove the words “malicious” as well as false. Buller, J., repeats in Pasley v. Freeman, 3 T. R. 61, that for words spoken confidentially upon advice asked, no action lies, unless express malice can be proved. So in Hargrave v. Le Breton, 3 Burr. 2425, Lord Mansfield states that no action can be maintained against a master for the character he gives a servant, unless there are extraordinary circumstances of express malice. But in an ordinary action for a libel or for words, though evidence of malice may be given to increase the damages, it never is considered as essential, nor is there any instance of a verdict for a defendant on the ground of want of malice. Numberless occasions must have occurred (particularly in cases where a defendant only repeated what he had heard before, but without naming the author), upon which, if that were a tenable ground, verdicts would have been sought for and obtained, and the absence of any such instance is a proof of what has been the general and universal opinion upon the point. Had it been noticed to the jury how the defendant came to speak the words, and had it been left to them as a previous question, whether the defendant understood Watkins as asking for information for his own guidance, and that the defendant spoke what he did to Watkins, merely by way of honest advice to regulate his conduct, the question of malice in fact would have been proper as a second question to the jury, if their minds were in favor of the defendant upon the first; but as the previous question I have mentioned was never put to the jury, but this was treated as an ordinary case of slander, we are of opinion that the question of malice ought not to have been left to the jury. It was, however, pressed upon us with considerable force, that we ought not to grant a new trial, on the ground that the evidence did not support any of the counts in the declaration, but upon carefully attending to the declaration and the evidence, we think we are not warranted in saying that there was no evidence to go to the jury to support the declaration; and had the learned judge intimated an opinion that there was no such evidence, the plaintiff might have attempted to supply the defect. We, therefore, think that we cannot properly refuse a new trial, upon the ground that the result upon the trial might have been doubtful. In granting a new trial, however, the court does not mean to say that it may not be proper to put the question of malice as a question of fact for the consideration of the jury; for if the jury should think that when Watkins asked his question the defendant understood it as asked in order to obtain information to regulate his own conduct, it will range under the cases of privileged communication, and the question of malice, in fact, will then be a necessary part of the jury’s inquiry; but it does not appear that it was left to the jury in this case, to consider whether this was understood by the defendant as an application to him for advice, and if not, the question of malice was improperly left to their consideration. We are, therefore, of opinion, that the rule for a new trial must be absolute.
Rule absolute.[[425]]