Redgate v. Roush

The opinion of the court was delivered by Johnston, J.:

One of the principal questions presented for decision is whether the communication complained of was privileged under the law. It was alleged that it was made in bad faith and with the malicious purpose of injuring the plaintiff. The publication is defamatory in character, and naturally would largely deprive the plaintiff of the confidence of the members of his church organization throughout the country. If it was false in fact and maliciously made, the plaintiff is entitled to recover to the extent of the injury suffered, unless the relations of the parties and the circumstances of the case justified the publication and brought the defendants within the privilege and protection of the law. The defamatory statement was not absolutely privileged, as words spoken or written by judges, jurors or witnesses in the course of judicial proceedings, or as in legislative debates, but it was at most a case of qualified privilege. Whether it was so privileged must be determined by the position occupied by the defendants, their relations to the plaintiff and to other members of the same denomination, and the circumstances under which the publication was made. If the statements were published in good faith and in the per *483 formance of what was honestly deemed to be an official or moral duty toward other church members, and for the benefit and protection of the church organization at large, and there was a reasonahle occasion for the publication, it was privileged and protected.

On the face of the publication, there is no vilification, extravagant language, or evidence of a wrong motive, and it would seem that the occasion fairly justified the publication of the defamatory matter. They were officers of the church and were concerned in its welfare ; the conduct and character of the plaintiff as their pastor had become a Subject of official inquiry ; and it had been found that he was “void of the spirit of Christ,” insubordinate, disorderly, and unworthy of the confidence of the brotherhood. The result of their inquiry was a matter of interest not only to them and the church at Wilmington, but to other members of their church organization throughout the country. If the plaintiff was unworthy or unfit to discharge the sacred functions of his high calling, the defendants, interested in the welfare of the denomination throughout the land, would appear to have been justified in warning other members and congregations of that organization to whom the plaintiff might offer his services as pastor. If the publication was prima facie privileged, it devolved on the plaintiff to allege and prove that it was both false in fact and malicious in purpose. Instead of showing actual malice, the plaintiff called two of the defendants as witnesses, who showed plainly enough that they were free from malice, and that the defendants honestly believed that duty and the interests of the denomination required that their fellow members living elsewhere should be informed of the character and conduct of *484 the plaintiff. Instead of showing malice, as he was required to do, the plaintiff proved pure motive and a justifiable occasion for the publication.

In Shurtleff v. Stevens, 51 Vt. 501 , it was held that the good name and standing of every member of such an organization is a matter of common interest to all the rest, and that all are affected by the fidelity with which their preachers perform their sacred functions. In the opinion it was stated :

“In order to be successful public teachers of morality, they must be unspotted public exemplars of it. Hence, if it be suspected that a wolf in sheep’s clothing has invaded their ranks, and sits at their council board, it is not only for the interest of all the members of the association to know the fact, but it is their imperative duty to make inquiry and’ ascertain the fact. They owe such duty to the plaintiff as a brother member,-if he is charged with scandalous conduct, to the end that his innocence may be established. They owe it to themselves, lest by indifference they give apparent approval to his conduct. Their intimate official relation to the plaintiff in the cause of their common work leaves them no other alternative ; and if, in making such inquiry and in acting upon the subject-matter of it, they proceed with honesty of purpose and act from a sense of duty, the law protects them.”

It was further held that the character and conduct of a clergyman is a matter of public interest, not limited to the narrow circle of his parish, and the publication that action had been taken upon charges made against a clergyman in two of the church papers did not forfeit the protection of the privilege which the law affords.

It is contended that by the general publication in the papers the defamatory matter was circulated outside the church meihbers, and therefore the privi *485 lege was lost. The communication appears to have been made in good faith, and manifestly for members of the denomination alone. As has been seen, it was published only in church papers, and the fact that the publication may have incidentally been brought to the attention of others than members of the Church of Christ will not take away its privileged character. In Toogood v. Spyring, 1 C. M. & R. 180, it was held that publications.made in good faith in discharge of a public or private duty are protected for the common convenience and welfare of society, and that the law does not restrict the privilege within any narrow limits. It was further remarked: “I am not aware that it was ever deemed essential to the protection of- such a communication that it should be made to some person interested in the inquiry, alone, and not in the presence of a third person.” See, also, Farnsworth v. Storrs, 5 Cush. 412 ; Kelly v. Sherlock, L. R., 1 Q. B., 686, 698.

The objection that the matter privileged was not specifically pleaded is of no importance, since the defendants were not called upon to make a defense. The burden of proof, as we have seen, was upon the plaintiff to establish actual malice, and having himself disproved malice, he failed to establish a liability against the defendants, and the case was rightfully taken from the jury. (Kirkpatrick v. Eagle Lodge, 26 Kan. 384 .)

The judgment of the district court will be affirmed.