Ashcroft v. Hammond

Gaynor, J. :

The published matter is libelous per se if not protected by privilege. The non-suit was granted at the close of the plaintiff’s case on the ground that the alleged defamatory communication was privileged. This ruling does not seem to have taken into consideration the law of privilege. In the case_qf an unprivileged publication which is libelou£p¿)6K s^-the law psresumes-it.jo be false, and unless the defendemt>pieads"as~a clefenc"e' that it is tnie*, its falsity is not in issue, a,nd no~evidance-on that head is permissible. The pub- i lication has, to be taken(as false during the trial,-and the only ques- j tion is onenUdamage^LTf the truth.bo..pleaded as a defence,.the i burden is of course on'the defendant to make it out. But in the case of a qualifiedly pmulepTd^ommunication, the law is the reverse. The occasion of qualified privilege out of which the publication arose does away with the presumption of falsity, and raises a presumption of good faith in the defendant; and therefore if the defence of such qualified privilege be pleaded, and the occasion of qualified privilege be shown, either on the plaintiff’s case or afterwards, the burden is put upon the plaintiff of destroying the privilege in order to recover. This he may do by showing that the published matter was false and the publication malicious. Having proved the matter false, he proves malice by showing that the defendant knew it was false, or did not have probable cause to believe it to be true; for there is no privilege to lie — except the case of absolute privilege, which has a very limited application, and with which we are not now dealing. If the defence of the truth be pleaded and proved, the defence of qualified privilege is unnecessary; it does not need to be invoked ; but if the defence of the truth be not made out, or be not pleaded (as is the case here), but only the defence of privilege, the burden jsjyijh^plaintiff.to defeai-the privilege, when the privileged occasion is shown, in the way stated in the foregoing (Hume v. Kusche, 42 Misc. Rep. 414, 421).

Applying these rules to this case, it is apparent that the non-suit was error.

1. Assuming that the evidence for the plaintiff showed that the occasion of the communication was one of qualified privilege, the case was nevertheless for the jury, for there was also evidence tending to destroy the privilege, viz., that the published matter was false, and that the defendant knew it was false, or did not have probable cause to believe it to be true. A trial Judge may not take a case from the jury unless the facts be undisputed, and not then unless different inferences may not be drawn therefrom in respect of the ultimate fact or facts to be found. The defendant, and Mr. Clemens, to whom the defamatory communication was addressed, had corresponding pecuniary interests in the company as stockholders ; but that was only lawful occasion for them to address communications to each other honestly and in good faith for the welfare or protection of such interests (Odgers on Libel & Slander, ch. 9, p. 234, sub. II; Broughton v. McGrew, 39 Fed. Rep. 672; Scullin v. Harper, 78 id. 460); and whether the defendant’s communication was of that character was the controlling fact which should have been submitted to the jury, if the rule of qualified privilege was applicable.

2. But as the case stood, viz., on the evidence of the plaintiff’s side only, no occasion of qualified privilege was shown. It appeared that a new board of directors favorable to the plaintiff had been elected, that the defendant was engaged with others in the enterprise of trying to keep it out and the old board in, and that he sent the defamatory telegram in furtherance thereof. That only a minority of the stock of the corporation was voted on at the election of the directors did not make the election illegal; the stockholders attending or represented make a quorum (Stock Corporation Law, § 20; Matter of Rapid Transit Ferry Co., 15 App. Div. 530). The law of privilege does not cover unlawful objects or purposes. It may be that the defendant is able to establish the invalidity of the said election, in which case an occasion of qualified privilege would appear. This matter must be left for careful consideration on the new trial.

3. The sending of the communication by telegraph was not such a disclosure of it to others as destroyed the privilege. That is a usual means of communication, and the facts of this case do not constitute an exception to the rule (Klinck v. Colby, 46 N. Y. 427; Edmondson v. Birch & Co., 1 K. B. Div. [1907] 371).

The judgment should be reversed.

Woodward, Jenks, Burr and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.