Mayo v. Sample

Dillon, J.

1. Slander: privileged communications. I. Words ordinarily slanderous may not be so because spoken by the party in the performance of Pu^c or official duty, upon a just occasion, and wiOvout malice. (See authorities cited in edieluding portion of opinion.) Words thus spoken come within the class of privileged communications; and are not actionable unless express malice be shown. ,

The jury have found the defendant’s second plea or answer to be true in point of feet. There is no satisfactory evidence of express malice, and its existence is rebutted by the finding of the jury. The defendant, by virtue of his office as the head of the police department, and charged with the duty of seeing that the criminal laws of the State and city were duly enforced, had the right, acting in good faith from honest motives, and with probable cause or ground of suspicion, to proceed to the plaintiff’s place of business, and to state to him what others had told him in respect to stolen property being there, and that he wished to search for and obtain it. Let us not be understood as saying that he would be justified in making a wanton and malicious assault upon the plaintiff’s character; or that he could make his own official character and visit a cloak to cover malice or words maliciously spoken.

The public have rights, and so have individuals. Rules of law are founded upon good sense and due regard alike to the rights of both the public and the citizen. It not unfrequently happens, however, that an individual becomes, without any real guilt, so surrounded by circumstances as that he must suffer some inconvenience, or even injury, in order that the higher interests of the public, or the community, may be protected by the detection and punishment of offenders. (See, on this point, observations of Ewing, Ch. J., in Grimes v. Coyle, 6 B. Monr., 301-305; Opinion, Marshall, Ch. J., in Faris v. Starke, 9 Dana, 128, 130.)

We now notice, in the light of these principles, so far as requisite, the specific errors urged by the appellant.

2. - evidence. II. A bill of exceptions recites, that, in detailing the circumstances which induced him to go to the store of the plaintiff on the occasion when the alleged slanderous W01T]S were Sp0ken, the defendant testified “ that he was mayor, and the head of the police; that he received information that certain boys in the city had been engaged in stealing articles from stores, offices, &c.; that he had got one of the boys, gained his confidence, got him to disclose his comrades, and what they did with the stolen property. This boy told me (defendant) that they had stolen scrap-iron and sold it to the plaintiff in this suit, and that the plaintiff knew it to be stolen when he bought it of them. One or two of the boys told me that they had sold their stolen iron to the plaintiff, and that the plaintiff knew when he bought it that it had been stolen.” To this testimony the plaintiff objected; but the objection was overruled, and the plaintiff excepted, and now assigns this ruling as error.

Nothing can be clearer than that this evidence was proper. It tended to show that the defendant did not act wantonly or rashly; that he had probable cause for what he did and said to the plaintiff; and it thus tended to rebut the presumption or inference of malice which might, under other circumstances, be inferred from the defendant’s conduct and language. (See Kinyon v. Palmer, post, second division of opinion.) It is proper to add, that the bill of exceptions shows that the testimony was neither offered nor admitted to prove a justification.

3. - evidence of character. III. As the defendant had not attacked or questioned the good character of the plaintiff by the pleadings, or offered evidence for that purpose, it was not error in the court to refuse to allow the plaintiff to prove his character for truth, honor and honesty.

4. - words spoken by a public officer. IV. The court instructed the jury, “that the answer of the defendant contained two good counts, either of which, if true, is a complete defense.” In this, there was no error. Bona fide efforts, made by public 0fficerS) jn the line of their duty, acting upon information received from others, and without malice, with a view to discover offenders or obtain stolen property, are justifiable and proper. And a charge of crime, in connection with such efforts, where no bad motive exists, and where “the party acted in good faith, and took no advantage of the occasion to injure the plaintiff’s character or standing,” by a malicious attack, is not regarded as slanderous, without proof of malice in fact. (See, on this subject, fully supporting the above views, Washburn v. Cooke, 3 Denio [N. Y.], 110; Grimes v. Coyle, 6 B. Monr., 301; Faris v. Starke, 9 Dana, 128; 1 Hilld. on Torts, 343, 373, and authorities cited ; Rector v. Smith, 11 Iowa, 302; Bradley v. Heath, 12 Pick., 163; Bunton v. Worley, 4 Bibb [Ky.], 38; Coffin v. Coffin, 4 Mass., 1; Streeby v. Wood, 15 Barb., 105; Coombs v. Rose, 8 Blackf., 155; While v. Nicholls, 3 How. [U. S.], 266; 1 Am. Lead. Cas., 166, and authorities cited.)

The verdict of the jury establishes that the defendant did not speak the words charged, if at all, out of ill will, resentment or express malice.

This court is of the opinion that the court below did not err, in refusing to grant a new trial because of errors of law occurring at the trial, or because the verdict was contrary to the evidence.

Affirmed.