MASSEE v. WILLIAMS, 207 F. 222

SATER, District Judge (after stating the facts as above).

Exception to the competency of the evidence offered as to the respective morning and afternoon conversations held at the office of the Hatchers was sufficiently reserved on the grounds, that any communication made by the defendant at either of such meetings (1) was privileged on account of the mutual interest of the parties in the matter under ’discussion, and (2) was not a publication, although made in the presence of the Hatchers, who were plaintiff’s attorneys, and (3) the parties were endeavoring to compromise the pending action for breach of contract, and, as the conversations related to such subject-matter, they were both privileged.

Exception was also taken to that part of the charge to the jury as erroneously locating the burden of proof in which the court said, regarding the second conversation, that the burden was on the defendant to establish by a preponderance of' the evidence that the words employed by him, which otherwise would be slanderous, were uttered in good faith, without malice, and within the scope of the compromise negotiations, and that, if he thus made proof in the respects named, his communications were privileged and afforded no ground of recovery against him, even if his statements were made in the presence of plaintiff’s counsel; but if he failed to make such proof, and if the greater weight of the evidence showed that his statements went beyond any attempt at compromise and were in the nature of threats and intimidation to cause the plaintiff to- dismiss his suit, they were not then privileged.

The evidence of both parties shows that the second interview was for the purpose of effecting a compromise. It therefore was the duty of the court to declare the occasion qualifiedly privileged. Newell. Slander and Libel (2d Ed.) 392, 770; Folkard’s Starkie, Slander and Libel, § 674. The subject-matter of discussion was also privileged. Whether the defendant’s utterances on that occasion were made in good faith was a question for the jury. Folkard’s Starkie, Slander and Libel, § 674; Robinson v. Van Auken, 190 Mass. 161, 166, 76 N. E. 601.

If the defendant’s utterances, delivered as they were at a meeting on which all of the parties had agreed, were actionably slanderous, was there, on account of the presence of the plaintiff’s counsel, such a publication of them as to confer a remedy by civil actionr' To constitute an actionable publication, it is essential that it be made to some third person or in such public manlier as to reach third persons ; that is, to some person other than the author or publisher and the party whom or whose affairs the language concerns. Sylvis v. Miller, 96 Tenn. 94, 95, 33 S.

W. 921; Townsend, Slander and Libel, §§ 93, 95; Fry v. McCord Bros., 95 Tenn. 691, 33 S. W. 568; Cooley on Torts (3d Ed.) p. 366; Newell, Slander and Libel, 756. Sending a libelous letter or speaking defamatory words to a plaintiff’s agent, solicitor, or counsel is a sufficient publication to a third person. Odgers, Libel and Slander (5th Ed.) 161; Townsend, Slander and Libel, 439, 440; Tuson v. Evans, 12 A. & E. 175; Huntley v. Ward, 1 F. & F. 552, cited with approval in Brewer v. Chase, 121 Mich. 526, 534, 80 N. W. 575, 46 L. R. A. 397, 80 Am. St. Rep. 527; Hancock v. Case, 2 F. & F. 711; Jacobs v.

Lawrence, 4 L. R. Ir. 579; Clerk & Lindsell on Torts (4th Ed.) 568; Folkard’s Starkie, Slander and Libel, § 308; Middleby v. Effler, 118 Fed. 261, 263, 264, 55 C. C. A. 355 (C. C. A. 1), approving Brow v. Hathaway, 13 Allen (Mass.) 239, 242; Commonwealth v. Pavitt, 2 Del. Co. Rep. (Pa.) 16. The inference to be drawn from Railroad v. Delaney, 102 Tenn. 289, 52 S. W. 151, 45 L. R. A. 600, points iti the same direction.

In that case Delaney’s agent solicited and procured, with knowledge of its contents, a letter of recommendation for him as a former employe from the company’s superintendent to enable him to get employment with another road. The court held that the case did not present such language as constituted a libel per se; and, there being no- special damages alleged, the action could not he sustained. We are unable to-reconcile this statement and the court’s discussion of the rule of damages with the theory that a libelous communication made on a privileged occasion to a party’s agent is not a publication. Dickinson v.

Hathaway, 122 La. 644, 48 South. 136, 21 L. R. A. (N. S.) 33, is expressly in conflict with the conclusion above reached; but with great deference to the court that decided it, we do not think it states the better rule.

Our conclusion is that, if the words attributed to the defendant were in excess of his privilege, there was a publication notwithstanding their utterance was in the presence of only the plaintiff and his counsel, and that, although the subject-matter under discussion was the compromise of the then pending suit, evidence of what defendant said was admissible for the reason that under the circumstances of the case the question as to whether or not the language was in excess of the privilege was for the determination of the jury.

Did the burden of proof rest on the defendant to show that he did not exceed his privilege, or on the plaintiff to show that it was abused ? A privileged communication comprehends all bona fide statements in the performance of any duty, whether legal, moral, or social, even though of imperfect obligation, when made with a fair and reasonable purpose of protecting the interest of the person making them or the interest of the person to whom they are made. Post Pub. Co. v. Hallam, 59 Fed. 530, 540, 8 C. C. A. 201 (C. C. A. 6); Merchants’ Ins. Co. v. Buckner, 98 Fed. 222, 223, 39 C. C. A. 19 (C. C.

A. 6); Newell, Slander and Libel, 388, 389. A conditionally privileged communication is a publication made on an occasion which furnishes a prima facie legal excuse for the making of it and which is privileged .unless some additional fact is shown which so alters the character of the occasion as to prevent its furnishing a legal excuse. Cooley v. Calyon, 109 Tenn. 1, 9, 10, 70 S. W. 607, 60 L. R. A. 139, 97 Am. St. Rep. 823; Townsend, Slander and Libel, 347. The defendant’s answer was a denial of all slanderous utterances.

Plis contention was, as stated by the court, and there is evidence tending to sustain it, that his statements were made in good faith, without malice, and with reference to the attempted compromise of the then pending suit, and that under all the circumstances, and in view of the previous dealings of the parties, whatever statements he made were, on account of plaintiff’s misconduct in such dealings, believed to be true.

He had a right at such interview for his own protection to state his defenses to the action brought against him, although his statements involved fraud and misconduct on the part of the plaintiff or were intemperate or excessive from overexcitement (Brow v.

Hathaway, 13 Allen [Mass.] 239, 242; Newell, Slander and Libel, 510); and if, in good faith and from reasonable cause, he believed that he had a valid defense to the action for breach of contract, resting, on plaintiff’s embezzlement, misappropriation of funds, and obtaining money under false pretenses, knowledge of such defense was a matter of interest to both the plaintiff and his counsel and, under such circumstances as the defendant claims, might properly be communicated to them, although the. communicatión necessarily contained criminatory matter which, but for the privilege, would be slanderous and actionable.

Missouri Pac. Ry. Co. v. Richmond, 73 Tex. 568, 11 S. W. 555, 4 L. R. A. 280, 15 Am. St. Rep. 794, 800; Folkard’s Starkie, Slander and Libel, § 671; Newell, Slander and Libel, 509. Plonest indignation and want of sound judgment on the part of the defendant and his employment of strong words, if he thought them justified, were not evidence of malice. Odgers, Libel and Slander, 345; Newell, Slander and Libel, 324.

He was privileged to say what a due regard to his interest necessitated and to employ such words as the situation compelled; and it was the duty of the jury under proper instructions to look at the circumstances as they presented themselves to the mind of the defendant at the time of the publication, not what may have been proved at the trial to have been the true facts of the case, and then ask: Did the defendant act honestly and under a sense of duty, using such language as he might bona fide have employed under the circumstances? Did he in good faith believe the statements he made were true?

Odgers, Libel and Slander, 352. An affirmative answer to these questions would repel the legal inference of malicious intent on the part of the defendant and would exonerate him from liability. Newell, Slander and Libel, 392; Hebner v. Great Northern Ry. Co., 78 Minn. 289, 80 N. W. 1128, 79 Am. St. Rep. 387, 389.

If, however, he obtained a conference, not for the purpose of a compromise, but as an opportunity to defame the plaintiff, and having so done indulged in defamatory language not germane to the transaction of the business for which the meeting was held, or if in good faith he obtained a conference to negotiate a settlement and in the course of the negotiations made slanderous criminatory accusations against the plaintiff which were not pertinent, and yet could have done all that his duty or interest demanded without thus slandering him (Newell, Slander and Libel, 509; Smith v. Smith, 73 Mich. 445, 41 N.

W. 499, 3 L. R. A. 52, 16 Am. St. Rep. 594), or if having thus induced a conference, without an honest effort to compromise, from a spiteful and malicious feeling, he accused the plaintiff of criminal wrongdoing and resorted to intimidation and threats to secure a dismissal of the then pending suit, he abused the occasion and destroyed the privilege, and a malicious intent in the making of his statements would be inferable by law. The occasion being privileged, the communication did not amount to actionable defamation until it appeared that it had its origin in actual malice. Lea v.

White, 4 Sneed (Tenn.) 111, 113; Newell, Slander and Libel, 391. It was therefore incumbent on the plaintiff to show such malice in addition to injurious utterances, and that the defendant seized upon the occasion as a pretext or otherwise availed himself of it maliciously in fact to slander him. Crockett v. McLanahan, 109 Tenn. 517, 522, 72 S. W. 950, 61 L. R. A. 914; Shadden v. McElwee, 86 Tenn. 146, 151, 5 S. W. 602, 6 Am. St. Rep. 821; Folkard’s Starkie, Slander and Libel, § 670; Townsend, Slander and Libel, 349, 350; Newell, Slander and Libel, 389; Dunn v. Winters, 2 Humph. (Tenn.) 512; Mattson v.

Albert, 97 Tenn. 232, 36 S. W. 1090; White v. Nicholls, 3 How. 266, 11 L. Ed. 591; National Cash Reg. Co. v. Sailing, 173 Fed. 22, 28, 97 C. C. A. 334 (C. C. A. 9). In Saunders v. Baxter, 6 Heisk. 382, the Tennessee court thus quotes with approval the clear statement made in Wright v. Woodgate, 2 Cromp.

M. & R. 573: “A privileged comnnmication means nothing more than the occasion oí making it rebuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff, and throws upon him the onus of proving malice in fact, but not of proving it by- extrinsic evidence only; he lias still the right to require that the alleged libel itself shall be submitted to the jury that they may judge whether there is evidence of malice on the face of it.” The presumption of freedom from malice running in favor of the ■defendant, the burden of proving that he did not abuse his privilege ■did not rest on him.

On the contrary, the burden was on the plaintiff to prove malice in fact, which might be done not only by extrinsic evidence of personal ill feeling but also by intrinsic evidence, such as the original language of the slander, the mode and extent of the publication, and other matters in excess of the privilege. Any other words spoken by the defendant of the plaintiff and indeed all previous transactions or communications between the parties were competent on such issue. Newell, Slander and Libel, 770.

If plaintiff’s evidence fell short of establishing actual malice, the defendant was not called upon to answer as to that issue. If his evidence tended to show such malice, ■the defendant, to avoid an adverse verdict, was required to meet it but ■not to overcome it by a preponderance of the evidence.

If the defendant’s evidence was merely sufficient to counterbalance that of the plaintiff, or if the evidence adduced was, as a whole, equally consistent with either the existence or nonexistence of such malice, there was then nothing to rebut the presumption which existed in favor of the ■defendant from the privileged occasion. Odgers, Libel and Slander, 345; Newell, Slander and Libel, 324. The portion of the charge above considered contains prejudicial error.

At an early stage of the trial, when plaintiff’s evidence was coming in, the court said in the presence of the jury that he did not think the proof showed the language attributed to the defendant in such second conversation was to such an extent within the scope of the interview and the object for which it was held as to prevent its being a publication. No subsequent allusion was made to this statement. It was in effect an announcement of the court’s opinion that the defendant’s language was not privileged and was consequently slanderous and malicious in fact.

We fear that this unqualified declaration on a question whose decision was within the province of the jury must have operated to the defendant’s prejudice.

As regards the first conversation at Hatcher’s office, the court charged the jury that as the defendant, after the suit for breach of contract had been instituted against him, went to the office of the Hatchers voluntarily and not at their instance or suggestion, no element of privilege attached to such conversation, and that if he there made the statements attributed to him, and if they were in substance such as referred to the embezzlement and misappropriation of funds and the obtaining of money under false pretenses, there was then, on account of them, a right of action against him in favor of the plaintiff.

To this portion of the charge the defendant excepted. E. H.

Hatcher’s evidence, notwithstanding the uncertainty of his recollection, that the defendant’s express purpose in voluntarily •coming to his office was to employ him as an attorney justified the admission of the conversation, but the subsequent evidence of the defendant that his visit was made to bring about a settlement of the then pending suit and the fact that at that time a subsequent meeting of tlie parties was arranged for that purpose injected into the case-a question of fact for the jury's determination.' That the communication was voluntarily made did not necessarily render it nonprivileged..

A communication is privileged within the rule, when made in good faith, in answer to one having an interest in the information soúght;: it is also privileged, if volunteered, if the party to whom the communication is made has an interest in it, and the party hy whom it is made stands in such relation to him as to make it a reasonable dutv, or at least proper, that he should give the information. Locke v. Bradstreet Co. (C. C.) 22 Fed. 772, 773; Erber v. Dun (C. C.) 12 Led. 526; Sunderlin v. Bradstreet, 46 N. Y. 191, 7 Am. Rep. 322; Missouri Pac. Ry. Co. v. Richmond, 73 Tex. 568, 11 S. W. 555, 4 L. R.

A. 280, 15 Am. St. Rep. 794, 798, 801; Fresh v. Cutter, 73 Md. 87, 20 Atl. 774, 10 L. R. A. 67, 25 Am. St. Rep. 575. If the jury accepted the defendant’s evidence as to the object of his visit, his, statements, if germane to the subject of discussion, were innocent and privileged, but if he transcended the bounds of his privilege to indulge in language not pertinent to the occasion and subject-matter and of a-slanderous character, the protection of the privilege was lost.

If his language was such as the jury might properly have found to be defamatory of the plaintiff, both of the above phases of the situation-should have been presented to it in the charge.

No specific and perhaps no adequate exception was taken to that portion of the charge which left it to the jury to- determine whether the defendant’s statements made at such first conversation were of the character alleged in the declaration regarding embezzlement and misappropriation of funds and the obtaining of money by-false pretenses; but, as the case must be retried, we are constrained t» say that, while the evidence of such conversation was competent as, leading up to the second interview, it fails to show any utterances such as are made the basis of the plaintiff’s complaint.

No mention of any accusation on the part of the defendant is made by C. P. Hatcher, and E. H. Hatcher’s version of the conversation is a recital not of the language employed by the defendant but of his conclusion as to its. import. Pie explicitly states that the defendant made no direct charges, against the plaintiff.

If we misinterpret his evidence, and if the defendant did call the plaintiff a “rascal,” the application o f that term to him was not, in the absence, as here, of proof of special damages,, slanderous (Cooley on Torts [3d Ed.] 393, 401), although had the-charge been in writing it would have been libelous. Williams v. Karnes, 4 Humph. (Tenn.) 9; Newell, Slander and Libel, 48.

Error cannot be predicated on the court’s statement and its earlier direction that proof of the substance of the statements set forth in the declaration is sufficient, for the reason that, when its attention was called to the language thus inadvertently employed, it broadly and favorably to the defendant instructed the jury that the proof must show that the alleged slanderous utterances were made in the exact language charged in the declaration in order to warrant a recovery.

The plaintiff was not required to prove all the words laid in the declaration unless it took all of them to constitute the cause of. action, but he was required to prove enough of them to entitle him to the relief sought. Roberts v. Lamb, 93 Tenn. 343, 27 S. W. 668; Hancock v. Stephens, 11 Humph. (Tenn.) 508; Robinson v. Van Auken, 190 Mass. 161, 166, 76 N. E. 601; Broughton v. McGrew, 39 Fed. 672, 674, 5 L. R. A. 406; Linville v. Earlywine, 4 Blackf. (Ind.) 469.

It is alleged that the court erred in announcing the rule as to mitigation of damages in that, briefly stated, it told the jury that, if it found that the defendant made the remarks attributed to him and that they were not privileged, the plaintiff was entitled to actual compensation regardless of the defendant’s good faith and of actual malice; that, if he had a reasonable ground to believe from plaintiff’s previous conduct, that his statements were true, that fact would rebut any inference or proof of malice, and a recovery of punitive damages could not then be had, but that the existence of such reasonable ground would not affect the question of compensatory damages; and that provocation induced by plaintiff’s conduct, although to be considered on the questions of actual malice and punitive damages, did not affect the question of compensatory, damages.

As the existence of malice in fact was essential to a recovery on the utterances alleged to have been made at the second interview at Hatcher’s office, the plaintiff was left remediless as to them, if such malice was rebutted. If, however, the defendant was guilty of only malice in law in any utterances he may have made at the Fair Grounds, he was liable in damages. The two conversations do not stand upon the same plane, because the former occasion was privileged and the latter was not.

It was the court’s duty to charge the law arising upon the facts as applicable to such facts so as to aid the jury in arriving at a correct conclusion. Hackett v. Brown, 2 Heisk. (Tenn.) 264, 271. Good faith, honesty of purpose, and provocation due to a plaintiff’s conduct may minimize and fix the degree of malice and thus operate to fix the amount of actual damages. Odgers, Libel and Slander, 398, states the rule applicable in all cases of slander to be that: “Where the occasion is privileged, the motive or intention of the speaker is material to the right of action.

In all cases the absence of malice, though it may not be a bar to the action, may yet have a material effect in reducing the damages. The plaintiff is still entitled to reasonable compensation for the injury which he has sustained; hut if the injury was unintentional or was committed under a sense of duty, or through some honest mistake, clearly no vindictive damages should be given. In every case, therefore, the defendant may, in mitigation of. damages, give evidence to show that he acted in good faith and with honesty of purpose and not maliciously.” In the early and leading case of West v.

Walker, 2 Swan, 32, 33, the Tennessee court held that it was competent for the defendant in a slander suit under the general issue to show that (he charge was occasioned by the misconduct of the plaintiff either in attempting to commit the crime or leading the defendant to believe him guilty of it. That case established the local rule that a defendant is permitted under the general issue to introduce testimony which does not amount to justification in mitigation of damages (Haws v.

Stanford, 4 Sneed [Tenn.] 520, 524), to rebut the malice with which it might otherwise be presumed the defendant’s words were uttered. Shirley v. Keathy, 4 Cold. (Tenn.) 29, 31. In Hackett v. Brown, in which the matter of provocation and auger as mitigating circumstances was under consideration, it was said that there is a wide difference between malicious and remorseless slander and works spoken in the heat of blood and under provocation, and that a jury in fixing the measure of damages should be permitted to consider all the circumstances of mitigation as well as of aggravation.

The record suggests that both parties were angry; that both were accustomed to indulge at times in offensive language; and that, viewed from the defendant’s standpoint, there was much to arouse his indignation and his belief of want of good faith and fair dealing on the part of the plaintiff. We conceive the rule to be that the amount of damages should be governed or graduated by the degree of malice by which a defendant was actuated (Huson v. Dale, 19 Mich. 16, 30 [top paging], 2 Am.

Rep. 66), and that, if his malice may be punished by the imposition of smart money, then malice or misconduct on the part of the plaintiff which provoked anger and passion and the injury of which he complains, and a reasonable belief on the part of the defendant that the charges were true, should also be punished by withholding, to the extent which the circumstances warrant, the damages to which he would otherwise be entitled. A plaintiff who so deports himself has less to lose in the way of reputation and consequently sustains less actual damage than a person who does not thus misbehave.

Nothing should be received in mitigation of compensatory damages which does not tend to show what those damages actually were, and where actual damages are once ascertained they cannot be mitigated, though they are to be determined in view of all mitigating circumstances. Sedgwick on Damages (9th Ed.) § 448; Cheadle v. Buell, 6 Ohio, 67; Wilson v. Apple, 3 Ohio, 270; Haywood v. Foster, 16 Ohio, 88; Ritchie v. Stenius, 73 Mich. 563, 567, 568, 41 N. W. 687; 25 Cyc. 417; 18 Am. & Eng. Ency. Raw, 1107 et seq. The instruction as to mitigation .of damages should have been in accordance with the foregoing.

The court very properly, considering the state of the record, refused to sustain the verdict unless the plaintiff remitted a large portion of the damages awarded by the jury. It is urged that it should have set aside the verdict and awarded a new trial, because the verdict was so excessive as to indicate passion and prejudice on the part of the jury. The course pursued is supported by both state and federal authority. Packet Co. v. Hobbs, 105 Tenn. 29, 46, 58 S. W. 278; Northern Pac. R. R. Co. v. Herbert, 116 U. S. 642, 646, 647, 6 Sup. Ct. 590, 29 L. Ed. 755.

The defendant complains that, over his objection and exception, the plaintiff was permitted to offer evidence in chief that his general reputation for truth, integrity, and fair dealing is good. Whether thus to admit evidence of that character, under pleadings and circumstances such as are here presented, constitutes reversible error or not is a controverted question. Some of the authorities which have answered it in the affirmative are Martin v. Hooker, 7 Cold. (Tenn.) 130; Chubb v. Gsell, 34 Pa. 114; Burkhart v. N. Am. Co., 214 Pa. 39, 42, 43, 63 Atl. 410; Blakeslee v. Hughes, 50 Ohio St. 490, 34 N.

E. 793; Cooper v. Phipps, 24 Or. 357, 33 Pac. 985, 22 L. R. A. 836; Rhodes v. Ijames, 7 Ala. 574, 42 Am. Dec. 604. And see, also, as reflecting on the question, McCabe v. Platter, 6 Blackf. (Ind.) 405; Newell, Slander and Libel, 771; 5 Am. & Eng. Ency. Law, 852. To the contrary are Bennett v. Hyde, 6 Conn. 24; Adams v. Lawson, 17 Grat. (58 Va.) 250, 94 Am. Dec. 455; Williams v. Haig, 3 Rich. (S. C.) 362, 45 Am. Dec. 774; Shroyer v. Miller, 3 W. Va. 158, 161; Stafford v. Morning Journal, 142 N. Y. 598, 37 N. E. 625; Sutherland on Damages, §§ 1210, 1211. We do not find it necessary to determine the question.

As the case must be retried and as the plaintiff will have the undoubted right to rebut any assault made on his character by the defendant, we content ourselves by saying that it was not necessary to make such proof in chief; the presumption of law being in favor of plaintiff’s good character until it was legally impeached. To say the least of this kind of evidence so offered, it is generally unnecessary and, if allowed, may tend inconveniently to procrastinate trials.

The court received the evidence of the deputy sheriff regarding his conversation with the defendant subsequent to the commencement of the present action, not as a basis of damages, but merely as an admission that the defendant on the morning of the' day in question applied an epithet to the plaintiff. Error is predicated on its introduction. If the defendant made such an admission it was not that of an actionable slander, because there is no evidence that any one heard the ■original utterance.

The evidence of both the plaintiff and the defendant and by necessary inference that of the Hatchers also distinctly ■.negatives a meeting on that day between the parties to this action prior ;to that held in the afternoon at Hatcher’s office, and consequently the ■occurrence of an incident such as the deputy sheriff says the defendant •admitted. It is difficult to believe that the plaintiff would have consented to meet the defendant to compromise their differences had he previously been denounced as a thief and slapped in the face by the .latter.

The admission attributed to the defendant does not relate to any occurrence or utterance concerning which evidence was given. The evidence of the deputy sheriff was, however, competent, but for the sole purpose of showing the animus of the defendant. Newell, Slander and Libel, 331; 8 Ency. Ev. 268; Townsend, Slander and Libel, §§ 390, 394. What was in the defendant’s mind when he is alleged to have made the slanderous utterances charged in the declaration was one of the questions involved.

Although his acts and words on those occasions are the best evidence on this point, still if he afterward gave expression to an ill feeling, such expression is to be received for what it is worth in pointing to his motive at the respective times of publication laid in the counts. Knapp v. Fuller, 55 Vt. 311, 45 Am. Rep. 618. It was for the jury to say, under proper instructions from the court, what it' would do with the evidence given by the deputy sheriff. Having discussed what we believe to be the material points in issue, other assignments of error will not be considered.

We wish, however, to add the caution that any allusions we have made to the evidence relate only to the record before us, and that we do not undertake to do more than lay down general propositions, leaving the terms in which they should be submitted at a new trial, if one occurs, and also the limitations and explanations thereof, to he then settled as the actual facts then develop. The judgment is reversed, with costs, and the case remanded for retrial. WARRINGTON, Circuit Judge. I concur in the judgment of reversal.