Marks v. Baker Supreme Court, Minnesota, July 25, 1881. Reported in 28 Minnesota Reports, 162

Berry, J. This is an action for libel. The plaintiff was, at the times hereinafter mentioned, treasurer of the city of Mankato, and, as such, custodian of the moneys, and from April 1 to 6, 1880, a candidate for re-election to the same office, at an election fixed for the latter day. The defendants were residents and tax-payers of the city, and publishers thereat of the Mankato Free Press, a weekly newspaper, and as such they published therein, on April 2, 1880, the article complained of, in which, as the plaintiff claims in his complaint, they charged and intended to charge the defendant as treasurer with embezzling city funds. It is alleged in the complaint that the matter charged as libellous was of and concerning the plaintiff in his office—that it was false and defamatory, and that the publication was malicious. The answer denies malice, all intent to injure or defame plaintiff, any intention on defendants’ part to charge him with embezzlement, and alleges that defendants published the article complained of, as a communication, solely for the purpose of calling the attention of the public to the matter therein referred to, viz., to a discrepancy in certain official reports tending to show that the plaintiff had failed to charge himself with the full amount of city funds which he had received from the county treasury, and with the view of obtaining an inquiry as to the cause of such discrepancy. The answer further alleges that “the publication was made in good faith; ... that defendants believed that there was reasonable cause for the publication;” and “that they were then and there discharging a sacred and moral obligation as ... editors and publishers.” The reply puts these allegations of the answer in issue. Upon the trial it was admitted that, notwithstanding the discrepancy, (which in fact, existed) the plaintiff had accounted for the full sum received by him as city treasurer from the county treasurer, so that the defendants’ charge or insinuation to the contrary was false.

Defendant, Baker, having been called for the defence, was asked the questions following, to which he made answers as follows, all against the objection and exception of the plaintiff:

(1) “Did you believe the report of the city recorder to be true? Answer. I did believe it to be true. (This report was that from which, as defendants in the alleged libel charged or insinuated, it appeared that plaintiff had failed to account for all the money received by him from the county treasurer.)

(2) “What was your object in publishing the article? Answer. I published it for the general public interest.

(3) “Did you have any other object in publishing the article? Answer. I did not.

(4) “You have stated that you had no other purpose than doing a public duty in publishing the article. I want to know what your object was,—to charge somebody with a crime, or whether you had some other object? Answer. To draw attention to the discrepancy of the two reports. I had seen what purported to be the official report of the county auditor, and I had seen the city recorder’s; and the county auditor’s showed that Marks, as city treasurer, had received from the county, during the fiscal year, $115.02 more than the city recorder’s report showed that he had received from the county for the same time. (These are the two reports between which the discrepancy was charged to exist.)

(5) “Did you, by publishing the article, intend to charge the plaintiff with embezzling any sum whatever?” Answer. “I did not.”

The defence set up in the answer is, in effect, that the publication complained of is a privileged communication.

The rule is that a communication made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty, is privileged; that in such case the inference of malice which the law draws from defamatory words is rebutted, and the onus of proving actual malice is cast upon the person claiming to have been defamed. Toogood v. Spyring, 1 Cr. M. & R. 181; 2 Addison on Torts, § 1091; Harrison v. Bush, 5 E. & B. 544; Moak’s Underhill on Torts, 146; Quinn v. Scott, 22 Minn. 456. That the subject-matter of the communication is one of public interest in the community of which the parties to the communication are members, is sufficient, as respects interest, to confer the privilege. Purcell v. Sowler, 2 C. P. D. 215; Palmer v. City of Concord, 48 N. H. 211; Cooley on Torts, 217. The subject-matter of the communication in the case at bar was one of public interest in the city of Mankato, where the publication was made, and one in which the defendants had an interest as residents and tax-payers of the city. It was, therefore, a privileged communication, within the rule mentioned, if made in good faith.

Judgment affirmed.