... here in my congregations in the spring of 1884, and was then unknown, he pretending to be a teacher in vocal music. By the aid of his serpent-like faculty he sneaked himself, in my absence, into the favor of a couple of families, and by their assistance had gathered some young people about him for instruction. . . . Inasmuch as he understood the tact to make himself intimate, especially with the female sex, he became more and more impudent. In my absence he beat his way to the access of the church where the young people, boys and girls, gathered in a wild disorder, until late at night. . . . He attempted and tried in every way, by the assistance of a few adherents, who looked upon him as a dear companion, to establish a party in the congregation, especially among the young people, whom he by his merry gatherings, plays, drinking, and night-brawling, tried to entice, . . . all tending to show a morally corrupt character. . . . His certificate of character from this place will be that he is a person of and in a high degree immoral character, an habitual drunkard, a fighter, dishonest in his trade, lascivious and frivolous in his conduct, whose words are not to be believed." ... July 28, 1888, the plaintiff commenced this action of libel, based upon the letter so written by the defendant. The answer of the defendant admits the writing and sending of the letter, but denies that he was actuated by malice or ill-will towards the plaintiff, and alleges the facts and circumstances under which the letter was written and sent, and that the letter was a privileged communication, made in good faith and in full belief of its truth; and also, in justification thereof, alleged that the communication was true, and pleaded specially the facts and circumstances showing its truth. At the close of the trial the jury returned a verdict in favor of the defendant, and from the judgment entered thereon the plaintiff brings this appeal. For the appellant there was a brief by Bashford, O'Connor & Polleys, and an oral argument by E. M. Lowry and T. A. Polleys. For the respondent there were briefs by Brooks & Blanchard, attorneys, and Olin & Butler, of counsel, and oral argument by J. M. Olin and T. J. Brooks. CASSODAY, J. . . . The principal point upon which the plaintiff seeks a reversal is the portion of the charge relating to privileged communications. After stating that the general nature of communications which were absolutely privileged and those which were only privileged conditionally, depend upon the circumstances under which they were made, the trial judge charged the jury as follows: "I instruct you as a matter of law that, if this letter of the 3d of August, 1886, was written by this defendant believing it to be true, in good faith, and without malice, then it was a privileged communication, and this action cannot be maintained." . . . Upon the same question the Court refused to charge that, "in order to make an article privileged, two things must concur: (1) the party making the charge must make it bona fide and without malice, and with reference to some subjectmatter in which he has an interest or in reference to which he has a duty to perform; (2) it must be made to a person having a correspond ... ing interest and duty; there is nothing disclosed by the evidence in this case which shows that the relation of the defendant to the plaintiff or to Sivesind, to whom the defendant wrote the letter, would make the occasion of the publishing of the alleged libel privileged." The important question, therefore, is whether there was an error in submitting to the jury the questions of malice, good faith, and belief in the truth of the communication, or in giving the portion of the charge quoted, or in thus refusing to charge as requested. The learned counsel on both sides agree to the rule as stated by FOLGER, C. J., and held in New York, "that it is for the court to determine whether the subject-matter to which the alleged libel relates, the interest in it of the author of it, or his relations to it, are such as to furnish an excuse; but that the question of good faith, belief in the truth of the statement, and the existence of actual malice, remains for the jury." Hamilton v. Eno, 81 N. Y. 122. But counsel contend, in effect, that, assuming, as we must, upon the verdict, that the defendant wrote and sent the letter believing it to be true, in good faith, and without malice, yet the circumstances were not such as to make it privileged. They contend that, in order to be privileged, the defendant should have had an interest in the subject-matter of the letter or some duty to perform in reference thereto, and also that the person to whom it was addressed should have had a corresponding interest or duty. . . . The alternative statement only makes it necessary that there be an interest or duty on the part of the person making the communication or on the part of the person to whom it is made, in order that it be conditionally privileged. There are certainly many cases holding that such communication may be conditionally privileged if made to one having an interest in and a right to know and act upon the facts therein stated. Weatherston v. Hawkins [supra, No. 910], Toogood v. Spyring [supra, No. 897]; Kine v. Sewell, 3 Mees. & W. 297; Robshaw v. Smith, 38 Law T. (N. s.) 423; Waller v. Loch, 45 Law T. (N. s.) 242; Tompson v. Dashwood, L. R. 11 Q. B. Div. 43; Atwill v. Mackintosh, 120 Mass. 177; Sunderlin r. Bradstreet, 46 N. Y. 191; Bacon v. M. C. R. Co., 66 Mich. 166 [supra, No. 900]. Thus, in Robshaw v. Smith, it was said by GROVE, J., speaking for the Court: "The defendant did not act as a volunteer, but was applied to for information. When applied to, he did give such information as he possessed. He might have refused to give that information. He had no legal duty cast upon him to give any opinion. But he was entitled to give his opinion when asked, and, a fortiori, as it seems to me, to show any letters he had received bearing on the subject. . . . Every one owes it as a duty to his fellow-men to state what he knows about a person, when inquiry is made; otherwise no one would be able to discern honest men from dishonest men. It is highly desirable, therefore, that a privilege of this sort should be maintained."... These expressions were fully sanctioned by JESSEL, M. R., in Waller v. Loch [supra, No. 916], who went still further, and said: "If the answer is given in the discharge of a moral and social duty, or if the person who gives it believes it to be so, that is enough. It need not even be an answer to an inquiry, but the communication may be a voluntary one. The law is concisely stated by Lord BLACKBURN, in Davies v. Snead [supra, No. 915]: ... 'Where a person is so situated that it becomes right in the interests of society that he should tell to a third person facts, then, if he bona fide and without malice does tell them, it is a privileged communication.' It appears to me that, if you ask a question of a person whom you believe to have the means of knowledge about the character of another person with whom you wish to have any dealings whatever, and he answers bona fide, that is a privileged communication. I might illustrate this by the instances of inquiries being made of a friend or a neighbor about a tradesman, a doctor, or a solicitor. Society could not go on without such inquiries. The whole doctrine of privilege must rest upon the interest and the necessities of society. If every one was open to an action of libel or slander for the answers he might make to such inquiries, it would be very injurious to the interests of society." The eminence of that late learned Master of the Rolls, who thus expressed the opinion of the Court, and the confusion among some of the adjudications, seem to justify the lengthy quotation made. In view of these authorities, and others which might be cited, it seems to us that the father of the girl who made the complaint upon which the plaintiff had been arrested had an interest in the communication sent by the defendant, and had the right to know and act upon the facts therein stated; and hence, had the letter been written by the defendant in answer to inquiries made by the father personally, it would have been conditionally privileged. The mere fact that the letter was written by the defendant in answer to inquiries made by another, for and in behalf of the father, does not take away the privileged character of the communication. This is manifest from some of the authorities cited. We must hold that there was no error in submitting the case to the jury on the theory that the communication was conditionally privileged. . . . By the Court. The judgment of the Circuit Court is affirmed. 918. POLLASKY v. MINCHENER SUPREME COURT OF MICHIGAN. 1891 ERROR to Wayne. June 6, 1890. Case. 81 Mich. 280, 46 N. W. 5 GARTNER, J. Argued May 14, 1890. Decided are stated in the opinion. The facts The plaintiffs sued Minchener and Robert G. Dun to recover damages for a libel published by the R. G. Dun & Co. Mercantile Agency, of which Minchener was the general manager of a district in Michigan, of and concerning the plaintiffs. Max E. Pollasky and Frank E. Pollasky composed the firm of Pollasky Bros., carrying on mercantile business at the village of Alma, Gratiot County, Mich. They had been engaged in business at that place since 1882. They were in good credit, and had never filed or placed a chattel mortgage upon their property, and in carrying on their business bought mostly upon credit, and had established a business reputation for prompt payment of their bills. R. G. Dun & Co. is a mercantile agency well known in the mercantile community, and have a clientage throughout the United States estimated at 25,000 subscribers, and in the State of Michigan of about 600. The alleged libel consists in R. G. Dun & Co. sending from their Detroit office to their subscribers what is known as a "Notification Sheet," under date of February 23, 1887, which, under the head of "Items of Record," "Michigan," among other items contained the following: "Alma-Pollasky Bros. Chat. Mort. $10,000. D. G., Clothing, and B. & S." This item was wholly false. R. G. Dun & Co. were non-residents; . . . Minchener was general manager of a district of the Michigan business, and was located at Detroit. . . . Minchener based his defense upon two grounds: (1) That the communication was privileged. . . . The trial Court took the case from the jury, and directed a verdict for defendant upon the ground that Minchener was not liable.. Henry M. Duffield, for appellants. ... Dickinson, Thurber & Stevenson, for defendant. CHAMPLIN, C. J. [after stating the facts as above]. Was the notification sheet, which was sent to all subscribers, a privileged communication? In Bacon v. Railroad Co. [ante, No. 900], I discussed the subject of privilege in actions for libel, and shall not go over the ground again. I adhere to what I there said, both as to absolute and qualified privilege. There is no foundation for the claim that the libel set forth in the declaration is absolutely privileged. The question is, Do the facts of this case bring the publication within the class of communications which are qualifiedly privileged? Qualified privilege extends to all communications made bona fide upon any subjectmatter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty; and embraces cases where the duty is not a legal one, but is of a moral or social character, of imperfect obligation. Bacon v. Railroad Co., 66 Mich. 170, and cases cited. The mercantile agency does not stand in such relation, either of interest or duty, with its subscribers generally that communications from it to them generally are privileged. Exceptions exist in relation to those persons who are interested in obtaining the particular information, and to whom it is furnished upon special request. To this extent, and no further, are such communications protected by a qualified privilege. Consider for a moment the relation of the mercantile agency to its subscribers. It undertakes to furnish them, for a consideration paid in advance, such information relative to the responsibility and credit of merchants and others as it obtains from its sub-agents, servants, and correspondents, without guaranteeing the accuracy, reliability, or correctness of such information, or being responsible for any loss caused by the neglect of its agents and servants, or for their want of verity. It expressly stipulates that it will not reveal to such subscribers the sources of its information, nor the names of the persons from whom it received it, and requires a pledge from the subscribers that they will never, under any circumstances, communicate to the persons reported the information received concerning them from the mercantile agency. It also adopts measures to prevent the particular communities from ascertaining the name or identity of the person reporting the standing of business men in that community. These secret and inquisitorial agencies ramify every part of the United States and the Dominion of Canada, and possess the power of destroying with falsehood or calumny the credit of any business man in the country, and of bringing him to bankruptcy and ruin. To hold such vast secret inquisitions exempt from liability for false publications respecting the character and standing of a business man would be to sanction the highest injustice. The business man's integrity, his reputation for fair and honest dealing, his prosperity in the transaction of his business, are of the utmost importance to him, and are oftentimes his best capital with which to carry on his business. Commercial credit is based upon confidence, and all know upon how frail foundation commercial confidence is builded. A breath of suspicion may destroy it. Confidence is withdrawn, and the party is ruined. And so, in a broader field, a breath of suspicion is directed against the public credit, suspicion gives place to rumors of disaster, rumors disseminated undermine the general confidence, and a panic is the result. On the other hand, these same commercial agencies, which always have their fingers upon the business pulse of the country, are a most potent factor in keeping up public confidence. They issue their manifestoes of encouragement, and scatter them broadcast over the land. They are read by the business men of the country. The newspapers assist the circulation among all classes of people, and public confidence is strengthened, or, at least, fears of disaster are allayed. In this they exert a strong influence for good, and are recognized institutions in carrying on the business of the country. But they are also potent for evil to the individual. They send out their notification sheets containing a false statement respecting a particular person, and he is undone,— no one will trust him, and all claims are pressed for immediate payment. His business character is sullied, confidence is withdrawn, and his business career has received a blow which it will require a long time to repair. |