Opinion
Argued October 15, 1890
Decided December 2, 1890
J. Stewart Ross for appellant. W.W. MacFarland for respondent.
Whether the public statutes of the state shall be changed is a matter of general interest and of common concern, and information given to the governor for the purpose of influencing his action on a bill which has passed the legislature is prima facie privileged; but if the communication contains defamatory matter and is unnecessarily published to others, such publication is not privileged. ( Coffin v. Coffin, 4 Mass. 1; Rex v. Creevey, 1 M. S. 273; Odgers on L. S. [2d ed.] 186; Folkard's Starky L. S. 202, 205; Newell on Def. 471; Towns. L. S. [4th ed.] 217.)
Had the pamphlet been given only to the executive, we should have no difficulty in sustaining the judgment on the ground that there was no evidence of malice, without proof of which an action cannot be sustained for such a publication. But one witness testified that he saw the defendant give copies of the pamphlet to persons in the executive chamber who did not appear to have any connection with the hearing which was then being held; and though he was strongly contradicted by persons who had every facility for observing what occurred, yet whether the defendant did distribute the pamphlet as testified by this witness, was a question of fact and the court erred in not submitting it to the jury with appropriate instructions. For this error the judgment must be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment reversed.