On plaintiff's case, it appears that defendant communicated the information he had received of an alleged crime to the district attorney in good faith, without personal ill-will, malicious or guilty motive. The burden is not on defendant to show that he had reasonable grounds for making the charge. The burden is on plaintiff to prove actual malice. The contrary appears. "This kind of malice which overcomes and destroys the privilege is ofcourse quite distinct from that which the law, in the firstinstance, imputes with respect to every defamatory charge,irrespective of motive. It has been defined to be an `indirect and wicked motive which induces the defendant to defame the plaintiff.' Unless we can find in the record in this case some proof which would warrant the jury in finding the existence of such wicked motive, on the part of the defendant, when he made the charge in question, then the direction of the learned trial judge was correct and the judgment must stand. The question is not whether the charge is true or false, nor whether the defendant had sufficient cause to believe that the plaintiff sent the letter, or acted hastily, or in a mistake, but the question is, the occasion being privileged, whether there is evidence for the jury that he knew or believed it to be false. The plaintiff may have arrived at conclusions without sufficient evidence, but the privilege protects him from liability on that ground until the plaintiff has overcome the presumption of good faith by proof of a malicious purpose to defame her character, under cover of the privilege. The plaintiff must be able to point to some evidence in the record that would warrant the jury in imputing this *Page 325 guilty motive to the defendant before her appeal can be sustained. As malice was an essential element of her case, not to be implied from the charge itself, but quite the contrary from the occasion on which it was made, the burden of establishing that fact was upon her. The record discloses no motive whatever on the part of the defendant for any charge against the plaintiff which he knew to be false, or did not believe to be true." (Hemmens v. Nelson, 138 N.Y. 517, 523, 524; Joseph v.Baars, 142 Wis. 390.)
"Evidence of malice. The judge must decide whether the occasion is or is not privileged, and also whether such privilege is absolute or qualified. If he decide that the occasion was one of absolute privilege, the defendant is entitled to judgment, however maliciously and treacherously he may have acted. If, however, the privilege was only qualified, the onus lies on the plaintiff of proving actual malice. This he may do either byextrinsic evidence of personal ill-feeling, or by intrinsic evidence, such as the exaggerated language of the libel, the mode and extent of publication, and other matters in excess of the privilege." (Odgers on Libel Slander [5th ed.], 685.) The rule laid down in the prevailing opinion is properly applied only to cases of reckless statements based on nothing in the way of information. The nonsuit was proper.
The judgment should be affirmed, with costs.
HISCOCK, Ch. J., HOGAN and CARDOZO, JJ., concur with ANDREWS, J.; POUND, J., reads dissenting opinion, in which MCLAUGHLIN and CRANE, JJ., concur.
Judgments reversed, etc. *Page 326