W. B. Ritchie K.C. for the appellant.
The letter written was upon privileged occasion; Toogood v. KING J.-This is an action of libel by a former agent at Bridgetown, N.S., of the Confederation Life Assurance Society, against the appellant, who was the general manager of the company at Halifax.
The plaintiff ceased to be agent of the company at Bridgetown on the twenty-seventh day of April, 1897, and the defendant on the seventh of July, 1897, wrote the following letter, which contains the libel sued in respect of, to one Mrs. Freeman, who had a policy in the company and was supposed to be desirous of continuing it:
MRS. FREEMAN,-I think you know that at the time of my recent visit to Bridgetown, I relieved Mr. 0. S. Miller of our local agency.
As you and your husband have evidently taken a kindly interest in Mr. Miller, I might say to you without entering into details as to the causes which compelled me to take this action, an explanation of which would hardly be appropriate here, that we have tried for a considerable time past to get Mr. Miller to attend properly to our business, and that it was only because it was clearly necessary that the change was made.
In order to give Mr. Miller an opportunity to get the benefit of commiksions on as much outstanding business as I could, I left the attention of certain matters in Mr. Miller's hands, on the understanding that he would attend to them and remit to me as our representative.
I now find that he has collected money which, up to the present time, we have been unable to get him to report, and I am told that he is doing and saying all that he can against myself and the company.
The receipt for your premium fell (1) 1 Q. B.
[1894] I 842.
This letter is clearly capable of a libellous construction, but it is claimed that it was a privileged communication, and it cannot be denied that the occasion was privileged.
The only question arises as to the existence of malice which would deprive the communication of its otherwise privileged character, and as to the learned judge's direction or mis-direction in respect thereof.
The existence of malice rebutting the qualified privilege is an issue the affirmative of which is on the plaintiff in the action.
The case was tried before Chief Justice Macdonald, and the jury found in favour of the defendant. The Supreme Court of Nova Scotia directed a new trial the ground of the insufficiency of the direction as to malice, (per Weatherbe, Ritchie and Graham JJ., Townshend J. dissenting), and this appeal is against the judgment for a new trial.
It is not to be expected that a judge in trying an action of libel shall attempt to define or specify all instances and tests of malice. To attempt to do so would be likely to confuse the jury. It is sufficient that he should explain the law to the extent required in dealing with the facts arising in the case.
One of the circumstances relied on by the plaintiff to prove malice was the alleged falsity, to the defendant's own knowledge, of certain of the statements contained in the letter. It is clear that if a party speaking or writing on a privileged occasion states what is untrue to his knowledge, this is evidence of malice sufficient to destroy the privilege of the communica- J. tion.
Clark v. Molyneux Fountain v. Boodle Now the letter in its opening sentences speaks of the plaintiff as having been relieved of his agency by the defendant and of the defendant having been compelled to take this action, by reason of having tried for a considerable time, without success, to get the plaintiff to attend properly to the business.
The fact, however, appears to be, that the defendant was willing that the plaintiff should continue the agency, but that the latter was not willing to continue it on the terms as to compensation offered him. And the facts, (such as they were,) were within the knowledge of the defendant.
The plaintiff's counsel ask the learned judge to direct the jury, that if the defendant stated what he knew to be false it would be evidence of malice. The learned judge declined to do so becauge he considered that he had already covered the ground in his charge. The only references to the point that I can find are where, in dealing with the matter of privileged communications in his charge to the jury the learned Chief Justice says:
All this is very true and upon analysis the point in question may be involved, but with all respect to the very learned Chief Justice, who may very naturally have supposed that by this he had covered the ground, it seems to fall short of an instruction to the jury as to J.the effect of falsity within the knowledge of the defendant as constituting a test of malice, and I think that the plaintiff was entitled, (if he requested), to have a more explicit statement of the law on a point directly affecting the proof of an issue the burden of which was upon him.
Considerable argument took place. respecting the statements in the letter as to the plaintiff's failure to report as to moneys left for his collection.
On the one hand it is said that the charge was that of a failure to inform his principal of the receipt of the money; on the other, that it merely meant a failure to make the form of report required of an insurance agent by the company.
If the inquiry were as to the bare meaning of the words, as for instance whether the words were susceptible of a defamatory construction, I should think that the ordinary and natural sense would govern, as being the sense in which the words would be un4erstood by the person receiving the letter; but, if the question upon the statement related to the questIon of malice or not, then, inasmuch as the knowledge of the defendant of the falsity of the facts alleged is the material fact, the sense in which the defendant may have used the word becomes the governing consideration; and, notwithstanding that the receiver might suppose that a grave charge was made, the person using the language cannot be said to have knowingly stated a falsehood, if he honestly meant to use the word in any innocent sense.
As to the learned Chief Justice not charging more explicitly in reference to malice, evidenced by a preexisting unfriendliness, if indeed there were evidence of such on defendant's part, or of any quarrel shared in by him, the charge would probably be inadequate; but looking at the facts, what is adduced was at most a N a scintilla of proof, consisting of hard things said by the plaintiff to and concerning the defendant, and not by the defendant to and concerning the plaintiff. It is too strained and refined to argue that because plaintiff's conduct towards the defendant was improper and quarrelsome, therefore the defendant must have shared the feeling.
On the whole I think the only material ground of complaint adduced against the charge is that first alluded to.
It is not possible, I think, to say that the jury could not have been influenced by the non-direction and that no different verdict could reasonably or properly have been rendered had the charge been free from all objection.
I think that the case is still one for a jury suitably assisted and it would be improper to add a word which might affect the finding of another jury. The appeal should, therefore, in my opinion, be dismissed, and chiefly for the reasons relied upon by Mr. Justice Ritchie, concurred in as it was by Mr. Justice Graham.
and JJ. were of opinion that the appeal should be allowed..
Appeal dismissed with costs.