(dissenting). I do not agree with the decision of the majority in this case. In my opinion the judgment of the Superior Court should be reversed and judgment entered for defendant.
The basis of plaintiff’s action is a statement made by Matthews, the chief executive officer of defendant, to an investigating officer of the State Police to the effect that the handwriting on plaintiff’s check was similar to that on several forged checks which had been paid by defendant. The statement was qualifiedly privileged. There is no extrinsic evidence of any kind of malice. The only evidence which could possibly have any bearing at all on the question of malice was Matthews’ comment to the investigating officer. The majority say that the extreme coarseness and offensive nature of this language might be attributed to a strong feeling of resentment and anger which might have been the result of plaintiff’s desire to prejudice the investigating officer against plaintiff, thus leaving to the jury the question of determining whether or not express malice had been proven. The majority also say that the use by Matthews of the offensive language complained of is not excusable as having been said “under the severe excitement of the moment”— as expressed in some of the authorities cited in the opinion of the majority — because this language was not used under such circumstances.
Before considering the merits of these two points, I pause first to say that to me they seem to be somewhat inconsistent. In the first, the jury is permitted to infer that because of the anger and resentment built up in Matthews’ mind he may have been led to use the language complained of to injure plaintiff by persuading the investigating officer to issue a warrant for her arrest. In the second, the majority say that the use of this offensive language is not excusable because it was not used in the “excitement of the moment.” I am unable to reconcile these two statements.
*195Offensive language, of itself, is not always sufficient to prove actual malice in a case where, as here, the statement complained of is privileged. Nor will the fact that Matthews may have felt indignation and resentment towards plaintiff necessarily destroy the qualified privilege. Kroger Grocery & Baking Company v. Yount, 8 Cir., 66 F. 2d 700, 92 A. L. R. 1166. See Prosser on Torts, Ch. 19, Section 95, and Restatement of the Law of Torts, Section 603. A trial court will in each case look to the primary motive or purpose by which a defendant is inspired. Murphy v. Johns-Manville Products Corp., 45 N. J. Super. 478, 133 A. 2d 34. If the purpose in this case was solely to proceed with the investigation of the forged checks, as would seem to be the case, the defense of privilege would not be lost.
Matthews at no time accused plaintiff of forgery. The investigating officer to whom Matthews made his complaint testified (and his testimony is uncontradicted) that after his conversation with Matthews on the day in question he took complete responsibility for everything which he did. In this setting the evidence proves nothing more than a natural reaction of anger and resentment, expressed, it is true, in the language of the man of the street, by one who has been led to believe from the facts presented to him that the handwriting on the checks was similar.
I think that in view of the circumstances above set forth Matthews’ statement may very well have been made in the heat of anger. Plaintiff had endeavored to cash a check for $150 when she had forty-nine cents in the bank. After the matter had been called to Matthews’ attention, he noticed a similarity between the handwriting on the check of plaintiff and several forged checks in his possession. This similarity was verified a very short time later by two other employees of defendant. All these facts occurred within a very short time prior to Matthews’ meeting with the investigating officer. In fact, when the investigating officer called, Matthews still had the checks in his hand. I think that the cases cited in the opinion of the majority as authority for the statement that offensive language is sometimes regarded *196as excused by the excitement of the moment and therefore insufficient proof of express malice are applicable here.
I question whether it is always true that one is excused for the use of offensive language only in those cases where it is used during the excitement of the moment. Necessarily it would not be true in every case involving writings or publications. See annotation in 166 A. L. R. 114, 144. There is always a tendency on the part of the courts when the occasion is privileged not to submit the words used to a too strict scrutiny but to consider them in the light of the facts as they appear to defendant. Peoples Life Insurance Co. of Washington v. Talley, 166 Va. 464, 186 S. E. 42; Sylvester v. Armstrong, 53 Wyo. 382, 84 P. 2d 729; Bereman v. Power Pub. Co., 93 Colo. 581, 27 P. 2d 749, 92 A. L. R. 1024. Considering the fact that extrinsic evidence of malice is wholly wanting in this case, that there is no evidence of ill will, spite or grudge against the plaintiff and that prior to the time plaintiff called at the bank on the date in question Matthews did not even know plaintiff, the facts of this case are at least as consistent with the non-existence of malice as with its existence. Under such circumstances a trial judge should direct a verdict for defendant. Montgomery Ward and Co. v. Watson, 4 Cir., 55 F. 2d 184, 187; Kroger Grocery & Baking Company v. Yount, supra.
I should reverse the judgment for plaintiff and enter judgment for defendant.