A plea of justification is no evidence of malice; 7 Q. B. 68; 14 L. J. Q. B. 196. In an action for libel, under plea of not guilty, evidence is admissible in mitigation of dam ages that there was a general suspicion and belief of the truth of the charge, and under the plea of privileged publication such evi dence is admissible as pertinent to the ques tion of express malice; Montgomery v. Knox, 23 Fla. 595, 3 South. 211.
Privilege. Publications considered privi leged in actions for libel are divided into those which are absolutely privileged and those which are conditionally or qualifiedly privileged; Coogler v. Rhodes, 38 Fla. 240, 21 South. 109, 56 Am. St. Rep. 170 (but slan derous words spoken to a former pastor of a church are not privileged ; Carpenter v. Wil ley, 65 Vt. 168, 26 AU. 488). A plea that an accusation against a clergyman (otherwise libellous per se) is a good plea of qualified privilege when it asserts that it was pre ferred according to the usage and discipline of the church; Piper v. Woolman, 43 Neb. 280, 61 N. W. 588; and the collecting of evi dence against a school principal and sending a copy of charges against her to the board of education and to her, is privileged; Galligan v. Kelly, 31 N. Y. Supp. 561. Pleadings filed in a proceeding before the Interstate Com merce Commission are privileged ; Duncan v. R. Co., 72 Fed. 808, 19 C. C. A. 202. Com munications between a stockholder and the managing agent of a corporation concerning an employe are privileged ; Scullin v. Harper, 78 Fed. 24 C. C. A, 169. A commercial agency which makes it its business to pry into the affairs of another to give informa tion thereof to others must see to it that it communicates nothing that is false, and if it does, it will be liable in damages to the party injured; Johnson v. Bradstreet Co., 77 Ga. 172, 4 Am. St. Rep. 77; publications of such agencies issued to their subscribers generally are not privileged communications; Bradstreet Co. v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768. • Communications made in good faith by a commercial agency at the request of a sub scriber, when defamatory of another, are not privileged; [1908] A. C. 390. See that title.
A false publication that a business house is insolvent is libellous per se; Mitchell v.
Bradstreet Co., 116 Mo. 226, 22 S. W. 358, 724, 20 L. R. A. 138, 38 Am. St. Rep. 592. The publication of a railroad company in a monthly circular to their servants of the name of a former employ6 and the reason of his dismissal was held to be privileged ; [1891] 2 Q.. B. 189. No allegation, however false and malicious, contained in answers to interrogatories in affidavits duly made, or any other proceedings in courts of justice, or petitions to the legislature, are indictable ; 4 Co. 14 b; 1 Saund. 131, n. 1 ; Gray v. Pent land, 2 S. & R. (Pa.) 23 ; Wilson v. Sullivan, 81 Ga. 238, 7 S. E. 274; Hawk v. Evans, 76 Ia. 593, 41 N. W. 368, 14 Am. St. Rep. 247; Runge v. Franklin, 72 Tex. 585, 10 S. W. 721, 3 L. R. A. 417, 13 Am. St. Rep. 833 ; Hibbard, Spencer, Bartlett & Co. v. Ryan, 46 Ill. App. 313. 1 A petition charging one as an habitual drunkard in a proceeding for the appoint ment of a guardian, if made without probable cause, was held not privileged ; Thompson v. Rake, 140 Ia. 232, 118 N. W. 279, 18 L. R. A. (N. S.) 921.
In all cases of libels published confiden tially, and other privileged communications, express malice must be shown, or inferred from circumstances, and this is always a question for a jury ; 8 B. & C. 578 ; Lancey v. Bryant, 30 Me. 466 ; Bodwell v. Osgood, 3 Pick. (Mass.) 379, 15 Am. Dec. 228 ; Er win v. Sumrow, 8 N. O. 472 ; Barr v. Moore, 87 Pa. 385, 30 Am. Rep. 367.
Libels in Special Cases. The public acts of public men may be lawfully made the sub ject of comment and criticism, not only by the press but also by the public ; but while criticism, if in good faith, is privileged, how ever severe, false allegations of fact are not privileged, and if the charges are false, good faith and probable cause are no defence, though they may mitigate the damages; Post Pub. Co. v. Hallam, 59 Fed. 530, 8 O. C. A. 201, 16 U. S. App. 613 ; Com. v. Clap, 4 Mass. 169, 3 Am. Dec. 212; Hamilton v. Eno, 81 N. Y. 116. A newspaper article reflecting on the official conduct and character of a state officer who is a candidate for re-elec tion, written in good faith, is privileged; Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281, 20 L. R. A. (N. S.) 361, 130 Am. St. Rep. 390.