NATIONAL CASH REGISTER CO. v. SALLING, 173 F. 22

GILBERT, Circuit judge (after stating the facts as above). Error is assigned to certain of the instructions given by the court to the jury and to the denial of certain requested instructions. We arc precluded from considering the latter, for the reason that the bill of exceptions does not contain the entire charge. For aught that we know to the contrary, the court properly instructed the jury upon all questions involved in the requested instructions.

One of the instructions excepted to is the following: “Kvory publication which charges upon or imputes to any person that which exposes such person to hatred, contempt, ridicule, or obloquy, or which causes such person to bo shunned or avoided, or which has a tendency to injure such person in his or her occupation, is prima facie false and unprivileged, and implies malice in the author or publisher.” The exception taken to this was that it was erroneous for want of facts rendering it applicable, and that the facts in the case showed that the communications were privileged, and therefore malice would not be implied in the author of them, and because the instruction left it to the jury to decide whether or not the communications were qualifiedly privileged.

The rule is that a communication made by one who has an interest to one who lias a corresponding interest is privileged, if made in good faith and without malice; but where the communication goes beyond what the case requires, and is unnecessarily defamatory, the person making the same will not be protected. Did the undisputed facts show that the communications in this case came within the rule? The testimony shows, in the first place, that they were false, and known to be false. It was not true that the defendant in error had been discharged from his employment for cause, or that he had been discharged at all.

He had resigned his position, his resignation had been accepted, and his employment had terminated, several days before the date of the paper which purported to discharge him. The evidence is that, between the date of his resignation and the issuance of the so-called discharge, knowledge had come to the officers of the plaintiff in error that the defendant in error intended going into a business which would compete with theirs. Therein is to be found the apparent motive of the so-called discharge, and of the communications which became the subject of this action.

It Is urged that the plaintiff in error was justified in directing its employes to exclude the defendant in error from its various places of business, in order to prevent his acquiring information which might be advantageous to him, but detrimental to them, in vievy of the competing business in which he was about to enter. Undoubtedly this is true. But it does not appéar on the face of the communications that such was their purpose. _ The subject may be one that is privileged, and a communication on that subject be unprivileged.

A circular stating that the company had been obliged to terminate the employment of the defendant in error for cause, and that “we must absolutely forbid Mr. Sailing from being received in any of our offices,” would, upon its face, seem to have been intended only for the purpose of discrediting the defendant in error and injuring his reputation. . It went beyond the plain necessity of the situation, and in that respect is not' unlike those which were criticised by the courts in Merchants’ Ins. Co. v. Buckner, 98 Fed. 222, 39 C. C. A. 19-30, and Landon v. Watkins, 61 Minn. 137, 63 N. W. 615.

It would have been error to instruct the jury that such a communication was, upon its face, privileged. Tonini v. Cevasco, 114 Cal. 266, 46 Pac. 103; Merchants’ Ins. Co. v. Buckner, 98 Fed. 222, 39 C. C. A. 19. It was not essential to the protection of the business of the plaintiff in error to cast imputation upon the character of the defendant in error. It would have been sufficient to warn the employés to withhold from him all information regarding the business, and, for that purpose, to exclude him from the company’s offices.

ITad the communications in this case been of that character, it would have been the province of the court to decide whether they, were privileged, as was held in Carpenter v. Ashley, 148 Cal. 423, 83 Pac. 444, and other cases cited by plaintiff in error. But it is well settled that, where there is uncertainty whether the facts which give the communication the privileged character claimed for it are established by the evidence, it is not ground to reverse the judgment, if the question is submitted to the jury. 25 Cyc. 747; 13 Enc. of Plead. & Prac. 107; Klinck v. Colby, 46 N. Y. 427, 7 Am. Rep. 360; Howland v.

Blake Mfg. Co., 156 Mass. 543, 31 N. E. 656; Nord v. Gray, 80 Minn. 143, 82 N. W. 1082. Error is assigned to the following: “Tbe words ‘prima facie,’ heretofore employed in these instructions, mean, that the law presumes that the publication such as there described was false and unprivileged.

These presumptions, however, are disputable, and the defendant is allowed, where the alleged falsity or unprivileged character of the publication are specifically denied, as in the present case, to establish both or either of said denials by proof; and, if such proof be made, it justifies the publication, and constitutes a complete defense to the action.” As the bill of exceptions does not contain the whole of the instructions, we are not advised as to the use of the words “prima facie” as theretofore employed in the instructions, and we therefore cannot impute any error to the charge that the law presumes that the publication such as there described was false and unprivileged.

The remainder of the instruction correctly states the law. It is urged that the burden of proof was upon the defendant in error to establish by a preponderance of the evidence that the communication was not in fact privileged by proof of the fact that it involved actual malice, and that proof of actual malice was entirely wanting in the case. But the burden of proving the privilege claimed lies upon the deiendant. 18 Am. & Eng. Enc. of Law, 1031; Schomberg v. Walker, 132 Cal. 224, 64 Pac. 290; King v. Patterson, 49 N. J. Law, 417, 9 Atl. 705, 60 Am. Rep. 622; Ritchie v. Widdemer, 59 N. J.

Law, 290, 35 All. 825; Newell on Libel and Slander, §§ 71, 72. As we view the record, there was ample proof of malice. There was proof of it in the known falsity of the charge that the company had been obliged to discharge the deiendant in error for cause. There was proof of it in the language employed in the letter of Thomas to Wilson, in which Tilomas referred to the defendant in error as a “dirty dog” and “a traitor,” and particularly requested Wilson to see Mr.

Hallar and tell him that the defendant in error “is a man who has been discharged from our employ, and one whom we would not give a position to under any circumstances.” The motive is further shown by Thomas’ testimony, in which he said: “It is part of my business to look out for somebody tliat is going into business in opposition to the company.

I was endeavoring to nip Sailing's proposition in the bud, you bet. * * * I guess my object in putting the facts before Hallar was so that he would not go into the secondhand business with Sailing.” Error is assigned to an instruction in which the court, after affirming the right of an employer to communicate with his employe upon any subject relating to the business in which they are mutually interested, and to communicate with a common employé with reference to the subject-matter of their common employment, said: “If. however, such statement is known to the party communicating it to be false, such, knowledge excludes the existence of good faith, and takes from the coinnnmicalion what otherwise would be its privileged character.” It is urged against this instruction that knowledge on the part of the author of the communication that it is false does not necessarily exclude the existence of good faith, nor take from the communication what otherwise would be its privileged character.

To this we cannot assent. In order to the protection of a communication as qualifiedly privileged, it must appear that it was made in good faith, and in the honest belief that it was true. Swan v. Tappan, 5 Cush. (Mass.) 104; Gassett v. Gilbert, 6 Gray (Mass.) 94; Klinck v. Colby, 46 N. Y. 427, 7 Am. Rep. 360; Quinn v. Scott, 22 Minn. 456. And the question whether the communication was made in good faith is one of fact for the jury. Bacon v. Michigan Central R. R. Co., 66 Mich. 166, 33 N. W. 181, and cases there cited.

It is contended that the court erroneously instructed the jury in charging them that damages might be recovered in such an amount as the jury might find would fairly compensate the defendant in error for the injury done him, “regardless of the defendant’s motives in making the publication, and without actual proof of the opinions of witnesses or otherwise as to the extent of the loss.” It was objected to this instruction that actual malice must be established by actual proof, by testimony or otherwise.

If it is meant by this that, in order to recover damages in such a case as this the plaintiff must adduce proof of express malice on the part of the defendant, the objection was not well taken. Malice may be inferred from the fact that the defamatory communication was false, and knoivn to be false' by him who uttered it. White v. Nicholls, 3 How. 266, 11 L. Ed. 591; Noonan v. Orton, 32 Wis. 106; Bacon v. Mich. Cent. R. R. Co., 66 Mich. 166, 33 N. W. 181; Locke v. Bradstreet Co. (C. C.) 22 Fed. 771; Gassett v. Gilbert, 6 Gray (Mass.) 98. In White v. Nicholls et al., 3 How. 287, 11 L.

Ed. 591, the court approved the following from the opinion in Wright v. Woodgate, 2 Cromp., M. & R. 573: “A privileged communication means nothing more than that the occasion of 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 has still a 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 record contains assignments of error to the rulings of the court as to the admissibility of testimony. We find no error in them, and, 'as they are not discussed in the brief of the plaintiff in error, we deem it unnecessary to discuss them here. Finding no error for which the judgment should be reversed, we affirm the same. For ether cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Itep’r Indexes