Wharton v. Wright

Libel—Privileged Communications, Absolute and Qualified—Proof of Malice—Evidence—Damages. 1. An absolute privileged communication is one in -regard to which the public interest requires that one shall be allowed to speak or write fully and freely, even though _the speaking or writing is knowingly false and malicious.. 2. A qualified privileged communication is such a one as is required to be made honestly and for the common good. 3. In case of a qualified communication the person defamed is entitled to damages, if he can show that the same was made in bad faith and for the purpose of traducing him. 4. The burden of proving malice in such cases is upon the plaintiff. 5. In an action of libel based upon a written communication, this court holds that the evidence tends to show that the publication was attended with malice, and that the case should have been submitted to the jury with proper instructions.

Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. This is an action on the case for libel. The declaration charges, in proper form, that appellees, on December 11,1885, maliciously wrote, directed and sent to the firm of Crawford, Mumford & Wroten a letter concerning the plaintiff, as follows: “We have this day handed H. B. Black, Esq., our affidavit, together with a sample marked‘Exhibit 3.’ We desire to call your attention to the affidavit. You perhaps will be surprised when yon learn the fact we kept from you from the beginning—that Alfred A. Wright and John W. Wright are brothers of the writer; that W. 1ST. Wharton was also in the employ of the writer. This man Wharton is and has been their tool, unknown to the writer, until after the first of August, when he left my employ suddenly and without any provocation, and became their servant, and willfully swore falsely to the affidavit sent yon. As to the invoice, and the difference in printing on the invoice, when you compare ‘Exhibit 2’ and ‘Exhibit 3’ you will see at once why we changed the printing on the invoice. It was no accident—no mistake. It was made expressly for our patent Helix needle, which is superior in quality to our Helix needle; and this man Wharton knew this to be the fact, aúd he was here when the change was made. But, to convince yourselves, kindly compare the labels of Exhibits 2 and 3, also the needles, and you will at once see that he perjured himself.” ■ The general issue was interposed by defendants.- At the trial it appeared that in the year 1885 appellees were in business in Chicago under the firm name of William Clark & Sons; Crawford, Mumford & Wroten, in Hannibal, Mo., and the firm of Alfred Shrimpton & Sons, in St. Louis. All three firms were engaged in selling needles. In the summer or fall of 1885 appellees, without any order from the Hannibal firm, and without any previous business relations with them, shipped them some needles, accompanied by an invoice. Shortly afterward A. A. Wright, a member of the St. Louis firm, called on the Hannibal firm and stated to them that apjmllees had sold their patent Helix needle at a less price than that named in said invoice. Thereupon the Hannibal firm informed appellees of the fact stated by Wright, and appellees then wrote a letter to the Hannibal firm offering §100 for the production of a bona fide invoice of their patent Helix needle, made out in their office at the lower price named by Wright. The plaintiff, being informed of the offer, made his affidavit on November 21, 1885 (attaching thereto an invoice), stating that the invoice so attached, showing a purchase of 10,000 needles at seventy-five cents per thousand (that being the lower price named) by W. N. Wharton from William Clark & Sons, was true and correct in every respect, and was delivered to said Wharton by said Clark & Sons, together with said 10,000 needles at their place of business in Chicago, and that said needles were the patent Helix needle. The affidavit and the invoice were sent to the Hannibal firm, and by them transmitted to Chicago. Appellees being informed thereof, claimed, upon inspection of the paper, that it was a forgery, and wrote to the Hannibal firm the letter declared upon in this action. At the trial evidence was also given tending to prove that Gabriel K. Wright knew that the invoice was made out in appellees’ office in the usual course of business; that the needles were actually sold at the price stated therein, and that Gabriel 1L Wright knew that the charge of false swearing against plaintiff was not true. When the plaintiff rested his case the court directed the jury to find the defendants not guilty, to which the plaintiff excepted. Motion by plaintiff for new trial overruled and exception. Judgment on verdict and plaintiff appeals.