Opinion
March Term, 1858
Charles N. Black, for the appellant.
Nicholas Hill, for the respondents.
The publication of which the plaintiff complains was made by the defendants as a committee of the board of trustees of the College of Pharmacy, in the city of New-York. The subject matter of the publication was pertinent to the object for which the committee had been appointed. The investigation which the defendants had been directed to make, and the result of which is contained in the report, was within the purposes for which the College of Pharmacy had been incorporated, and involved matters of public interest. Complaints had been made to the trustees of the college that spurious and adulterated drugs and medicines had been imported into the city of New-York, contrary to law. It was not merely proper, it was commendable, for the trustees to raise a committee to ascertain whether or not these complaints were well founded. In the discharge of this duty the defendants had a right, so long as they acted in good faith, to report to the board any facts which might come to their knowledge, even though the report might contain criminatory matter. Though it might otherwise have been actionable, being made in the performance of an official duty, it was a privileged communication.
No action can be sustained upon such a publication without proof that it was made maliciously and without probable cause. The occasion of the publication repels the inference of malice, which but for the privilege would have been drawn from its injurious character. (2 Greenl. Ev., § 421; Cook v. Hill, 3 Sandf., 341; White v. Nichols, 3 How. U.S.R., 266; Vanderzee v. McGregor, 12 Wend., 545; Howard v. Thompson, 21 id., 319; Fairman v. Ives, 5 Barn. Ald., 642; Harrison v. Bush, 32 Eng. L. and Eq. R., 173.) In the latter case, Lord CAMPBELL said that during the argument, a legal canon had been propounded for the guidance of the court which they were willing to adopt, as they thought it was supported by the principles and authorities upon which the doctrine of privileged communication rests. It was that "a communication made, bona fide, upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter which, without this privilege would be slanderous and actionable." He added that " duty" in the proposed canon could not be confined to legal duties, but must include moral and social duties of imperfect obligation.
No one can doubt, I think, that the publication in question was made in the performance of such a duty. It was, moreover, made in good faith, and upon reasonable cause. The answer alleges, and the demurrer admits the allegation that the defendants were moved solely by a conscientious desire to discharge their duties to the public and to prevent the unlawful importation, sale and public use of spurious and adulterated drugs and medicines. Such an answer, uncontroverted, constitutes a complete defence to the action.
The judgment of the Superior Court, overruling the demurrer, was right and should be affirmed.
All the judges concurring,
Judgment affirmed.