Jackson v. Hopperton In the Common Pleas, May 25, 1864. Reported in 12 Weekly Reporter, 913

This case was tried before Williams, J., at Guildhall, in the sittings after last Easter Term.

The declaration stated that, “before the speaking, &c., the defendant had been a man-milliner, and the plaintiff had been in his service and employ as a saleswoman and assistant, and the defendant falsely, &c., spoke, &c., of the plaintiff the words ‘Miss Jackson’ (thereby meaning the plaintiff) ‘is dishonest,’ thereby meaning that the plaintiff was a thief and a dishonest servant, and had been guilty of fraudulent conduct in her capacity as such saleswoman, &c., whereby, &c., the plaintiff was injured in credit and reputation, and certain persons trading under the name and style of ‘Capper, Son, & Co.’ refused to employ the plaintiff as saleswoman and servant in their employ, as they otherwise would have done, and the plaintiff lost and was deprived of her said situation in the employ of the said ‘Capper, Son, & Co.,’ and has been for a long space of time unable to obtain employment, &c.”

Plea—Not guilty.

The plaintiff entered the defendant’s service on December 1st, 1862, and remained in his employ till October, 1863, when she left, he having accused her of taking some money, and a few other things. Shortly after she left, she returned for her boxes, and asked him for her wages, and he then accused her of taking £3 10s., but said, “if you had come back, I should have said nothing about it.” A few days after he paid her her wages. Two or three days after this, she applied to the Messrs. Capper, Son & Co., for a situation; and she informed the defendant that a young lady was coming to him for a reference, and he then said, “I will give you no reference, but if you own that you took the money I will give you a reference.” The lady from Messrs. Capper, Son, & Co. called at the defendant’s and asked him for the plaintiff’s character, when he spoke the words in the declaration, and said he would not give her a character, she was dishonest, and that he had money and goods which he could prove she had taken. The plaintiff did not get the situation, the wages for which were £50 a year and board. The jury found a verdict for the plaintiff for £60.

Mr. Chambers, Q. C. (Hance with him), now moved for a rule calling on the plaintiff to show cause why this verdict should not be set aside, and instead thereof a nonsuit entered, on the ground that there was no evidence of express malice; or for a new trial, on the grounds that the verdict was against the evidence, and that the damages were excessive.

Erle, C. J. I am of opinion that there should be no rule in this case. This was an action for defamation of character, and evidence was adduced on the part of the defendant to show that the defamatory words were uttered on an occasion which justified the use of them. The question left to the jury was, whether the defendant believed the imputation of dishonesty, which he made against the plaintiff, was true or not, and they found he did not believe it to be so, and the judge is satisfied with their answer. I think this was a necessary question to be left to them. Then, as to the damages being excessive, the plaintiff lost a situation for which she would have received £50 a year, and it cannot be said that £60 is too large a sum as compensation for that loss. Mr. Chambers also moved on the ground that it was the judge’s duty to nonsuit the plaintiff at the close of the plaintiff’s case; but she tried to get another situation, and a lady called on the defendant for her character, and he then spoke to the lady the words complained of; where words are spoken on such an occasion as that, if the person uttering them believe them to be true, and there be no further evidence to show a probability that they were spoken maliciously, it is the duty of the judge to nonsuit the plaintiff. The cases of Taylor v. Hawkins, 16 Q. B. 308, and Somerville v. Hawkins, 10 C. B. 583, show what is the law under such circumstances, and lay down that, if the plaintiff give evidence from which the jury might infer malice, such as, that the defendant made the imputations not believing them to be true, or that at the time when he spoke the words he did not believe he was in the discharge of a duty, the question of malice ought to be left to the jury; and it appears from the old cases, and also the two cases above cited, that defamation carries with it a presumption of malice, and that it is prima facie evidence of malice, but the occasion on which the defamatory words are spoken may rebut the prima facie inference of malice, and then additional evidence may be given to show that there was malice, and the jury are to find on that evidence and on the libel itself whether there be malice. In the case of Wright v. Woodgate, 2 C. M. & R. 573, it is thus laid down by Parke, B., at p. 577: “The proper meaning of a privileged communication is only this, that the occasion on which the communication was made rebuts the inference prima facie arising from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice; in fact, that the defendant was actuated by motives of personal spite or ill-will, independent of the occasion on which the communication was made. In the present case, it became, in my opinion, incumbent upon the plaintiff to show malice in fact. This he might have made out, either from the language of the letter itself, or by extrinsic evidence, as by proof of the conduct or expressions of the defendant, showing that he was actuated by a motive of personal ill-will.” And in Taylor v. Hawkins, Lord Campbell lays it down at p. 321 thus: “The rule is, that, if the occasion be such as repels the presumption of malice, the communication is privileged, and the plaintiff must then, if he can, give evidence of malice.” I think that the fact of his charging her with stealing the £3 10s., and, not making that charge till after she had threatened to leave, and then the fact of his telling her that if she had come back he should have said nothing about it, and that if she owned she took it he would give her a reference, were sufficient facts to justify the jury in inferring that he was not performing the important duty between man and man, of stating what he believed to be the plaintiff’s true character, when he spoke the words which are the subject of this action.

Williams, Willes, and Byles, JJ., concurred.

Rule refused.