Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1904-12-17

A6ASS oAu OAICAuOu W IACA SNCAy
courtesy possible in their cases. TO
cintradict this and in support of his
affidavit of prejudice, Gum filed in
evidence an affidavit of the defendant
Jones, which is the AFFIDAVIT in ques.
ton. It is of considerable length and
its substance only need be stated. In
it the defendant testified that he had
been sheriff of Richland county for
four years and as such had ample op-;
portunity to observe the PLAINTIFFS
conduct and attitude in the trial Of
cases. From the knowledge thus &C.
quired, as we'll as from personal con-
versation with the plaintiff, he testified
to personal and political hatred On
the part of the plaintiff toward P. j.
McCumber SO intense in it's character
that Is was visited upon the other
members of the firm of which said
McCumber was member, upon the
political friends of said McCumber and
upon those who became the clients of
his firm. He further testified that he
had been a party to large number of
actions; that when he was represented
by the firm of which said McCumber
was member he invariably filed affi-
davits of prejudice; that when he was
represented by other attorneys he filed
no atadavits. The affidavit does not
charge the plaintiff with personal or
official dishonesty Or corruption either
directly or indirectly by imputation or
otherwise, and no such issue was in
volved in the proceedings before this
court. The entire scope of the testi-
mony given by the defendant in this
affidavit is to charge the plaintiff with
an intense prejudice against the said
P. J. McCumber, and this it does in
strong language. This affidavit was
offered by the plaintiff and received
by the court expressly 'tfor the purpose
of showing the state of feeling of the
defendant toward the plaintiff 80
and 'sas bearing upon the question of
the malice of the defendant in publish
the libel" It was objected to by coun-
sci for defendant upon a number of
grounds and particularly upon the
ground that it 'has no tendency to
show any personal malice, or any
malice that would render the matter
published actionable =" and,
"as not tending to show any such
malice as would make defendant IL
able for publishing a privileged COM
munication, =" The existence
Of malice, either as legal fiction or
in fact, is essential to recovery in
every action for defamation. Malice
has always been divided into two
kinds-implied malice, or malice in
law; and express malice or malice in
fact. The first is shown by mere proof
OF the unauthorized use of the defama-
tory words charged. The second may
be shown by the acts or conduct of
the defendant Immediately accompany
ing the utterance Of the words, or by
the utterance at other times of other
and similar defamatory words having
reference to the subject matter Of the
words charged" Gambrill VS.. Schooley,
(Md.), So Att. 500, sos. When the de-
famatory charge is made upon an &C.
casion which is not privileged malice
in law, or. legal malice, is conclusively
presumed for the purpose of sustain
ing the action and a recovery of actual
damages, but no further. Wregge VS..
Jones, 10 N. D.; 100 N. w. 7O5. When
it is made upon an occasion which the
law deems privileged, legal malice is
not thus inferred. .Bearce VS.. Bass, SO
Me. 521 81 Am. St. Rep. 446 On the
contrary the law presumes that it is
made it good faith and without malice
and in such cases proof of actual
malice is essential to sustain the &C.
ton even for compensatory damages.
Evidence of malice is always admis-
sible where punitive damages are
claimed. 5@E,E ~.
The trial court held that the Wen
dali affidavit was published on. a
privileged occasion. Evidence. of ac-
tual malice was therefore admissible
for the two-fold purpose: ~ To sus-
tain the action, and ~ upon the ques-
ton Of punatory damages. The sole
question is whether the Jones affidavit
was admissible for that purpose. In
our opinion IT was not" 5$
The reasoning is exhaustive ana
covers number Of typewriter pages.
The syllabus Of the decision, which is
BY Judge Young, Is as follows. 5.5
on RehsarIng.
9. Malice, either express 81 implied.