( 318 )
Present: Pereira J.
DAVID v. BELL et ol;
93—0. R. Colombo, 30,449.
Defamation—Malice—Reekless statement may be taken as proof ofanimus injuriandi.
In a ease of defamation, malice, in modem English law, is nomore than the absence of just cause or excuse; and, similarly, anactual intention or desire to injure is not, under the Roman-Dutchlaw, necessary to oonstiftgabe animus injuriandi. Reckless or carelessstatements may be taken as proof of animus inju/riandi; andwhile, in English law, malice can only be refuted by showing thatthe occasion was privileged, or that the words were ne more thanhonest and fair expressions of opinion on matters of public interestand genera] concern, the Roman-Dutch law allows proof, not onlyof such a circumstance as that the occasion was privileged, butof any other circumstance that furnished a reasonable excuse forthe use. of the words complained of.
LAINTIFF sued the defendants (1) for balanc'e wages; (2)for damages caused by the defendants falsely and maliciously
charging the plaintiff with theft of jewellery and by the consequentarrest and detention of the plaintiff byi the police; and (3) for damagescaused by the first defendant maliciously making the followingentry in plaintiff’s pocket register: “ There was a continual lossof articles from the bungalow, which culminated in the loss of fourgold scarf pins, ’ ’ and thereby insinuating that the plaintiff stole thesaid articles.
The learned Commissioner (P. E. Pieris, Esq.) held that thesecond defendant informed the police of the theft, but chargedno one; and that he named two of his servants, of whom plaintiffwas one, when asked by the police whether he suspected any one;and that there was no malice on the part of the defendants. TheCommissioner said: “ There appears to have been reasons for those
suspicions Tb'e entry enunciates an absolutely correct fact.
It unfortunately at' the same time does caBt an imputation uponthe plaintiff. Here, again, I entirely acquit the defendants of anymalicious intentions. I am quite satisfied that that entry was madeafter full consideration, and under the honest belief %at it was her
duty to state to the (police, for whose protection the register ismeant, the exact strfte of fqets.”
He dismissed plaintiff’s action with costs. Plaintiff appealed.
F. de Silva, for plaintiff, appellant—The learned Judge iswrong in acquitting the defendants of malice as regards the entry.
( 819 )
It is.dear from the evidence that at the end of October the plaintiff’sbook had been written up as regards character. “ Honesty ” hadbeen entered- as " very fair,” and it is obvious that the entrycomplained of was made out of spite and vindictiveness. Not asingle article lost had been traced to the plaintiff.
A serious imputation having been made against the plaintiff'scharacter, it was incumbent on the defendants to strictly prove then-charge. This they wholly failed to do. They did not call, and wereunable to offer, any evidence connecting the plaintiff with any ofthe thefts.
The arrest was due to the action of the defendants.
Drieberg, for the defendants, respondents. The defendants didnot act animo injuriandi in making the entry in the pocket register,or in mentioning the plaintiff as one of the persons whom theysuspected. The defendants had reasonable cause for acting as theydid. Counsel cited Morice's English and Roman-Dutch Law 252,De TiUiers’ Law of Injuries 27, 193, .and 207.
B. F. de SUva, in reply, cited 3 Nathan 1701, Francina v. Gibbs,1Tisera v. Holloway.2
Cur. adv. vult.
May 7, 1918. Pereira J.—
In this appeal counsel for the appellant has pressed only so muchof the plaintiff’s claim as is based upon the facts set forth in para-graphs 4 and 5 of the plaint. am not at all satisfied on the evidencethat the defendants had the plaintiff arrested on October 2, 1912.It does not appear that the defendants made any specific chargeagainst the plaintiff to the police. The police apparently actedon their own responsibility in arresting the plaintiff. As regardsthe entry in the pocket register, an important matter to be bornein mind is that there is no denial anywhere of the innuendo pleadedby the plaintiff. The plaintiff states that the entry carried withit the insinuation that he stole the articles lost from the defendantsbungalow. This averment-is not denied in the answer, and thereis no issue with reference to it. The only question, therefore, iswhether the first defendant acted animo injuriandi in making theentry complained of in the pocket register, or, to use the expressionfamiliar to the English law, whether, in doing so, she acted ‘‘ mali-ciously.” Now, malice, in modem English law, signifies practicallyno more than the absence of a just cause or excuse; and, as-observedby Moriee in his work on English and Boman-Dutdh 'law (page252), just as malice, in the English law of defamation, has lost its 'definite meaning, so animus injuriandi seems, in its practical appli-cation, to be reduced to something far short of the intention ordesire to injure. It has been found to be impossible to make thei Bam. 1872-76, 93.* 13781 8. C. C. 29.
( 320 )
1913. mental state of the defendant the practical test in a case of defa-jmation; and in such a case reckless or careless statements are
•i—- 'therefore taken as proof of the animus injurandi. So that if the
David t>. Sell entry in the pocket register is such a statement, then clearly thefirst defendant would be liable. But, as observed byi Morice again(page 263), while malice, in English law, in a case of defamation,can only be refuted by showing that the occasion waB privileged,or that the words used are no more than honest and fair expressionsof opinion on matters of public interest and general concern, theBoman-Dutch law allows proof, not only of such a circumstanceas that the occasion was privileged, but of any other circumstancesthat furnish a reasonable excuse for the use of the words complainedof. Now, in the course of the argument in appeal I was inclinedto think that the first defendant had no reasonable cause for makingthe imputations she did against the plaintiff’s character; but ona careful examination of the evidence I find that during the twoor three months that the plaintiff had charge of the key of the store*house things were lost from it. I think that in thjit fact there wasjustification for the inference that the plaintiff was responsible forthe losses, and I am not sure it did not also afford a reasonableexcuse for thinking that he was responsible for other losses as well.The facts of the case cited from Ramanathan’s Reports from 1872-1876, p. 93 (Francina v. Qibbs), appear to be of quite a; differentcharacter from that of the facts in this case. 1 affirm the judgmentwith costs.
DAVID v. BELL et al