
    Staunton.
    Tyree v. Harrison.
    September 18, 1902.
    1. Libel—Privileged Communications—Province of Court and Jury— Malice.—In an action of libel it is for the court to determine what communications are privileged, but it is the province of the jury to determine whether the privilege has been used in good faith, and without malice. Ordinarily malice may be implied from the publication of defamatory matter, but if the occasion of the publication is privileged, malice will not be implied, and the burden is on the plaintiff to prove malice in fact. Strong and violent language, however, disproportioned to the occasion, may overcome the weight of the privilege and raise an inference of malice.
    2. Libel—Privileged Comnmmeations—Misconduct of Policeman—Letter to Mayor.—A letter from a citizen to the mayor of a city informing him of alleged misconduct of a policeman is a privileged communication.
    3. New Trials—Conflicting Evidence—'Wieight Attached to Yerdici.—While some latitude must be allowed to the discretion of a trial judge in passing upon a motion to set aside a verdict because contrary to the ■ evidence, still the verdict is entitled to great respect, and should not be disturbed unless plainly against the evidence. It is the province of thé jury to pass upon the credibility of witnesses and the weight of the evidence, and where, as in this ease, there is serious conflict in the evidence the verdict should not be disturbed.
    Error to. a judgment of the Circuit Court of the city of Roanoke, rendered December 1,1900, in an action of trespass on the case wherein the plaintiff in error was the plaintiff, and the defendant in error was the' defendant.
    
      Reversed.
    
    The opinion states the case.
    
      
      Scott & Staples, for thie plaintiff in error.
    
      Coche & Glasgow, for the defendant in error.
   Keith, P.,

delivered the opinion of the court.

H. W. Harrison addressed the Mayor of the city of Roanoke the following letter:

“Hon. Jambs P. Woods:
“Dear 'Sir,—I respectfully call your attention to the fact that a policeman named Peter R. Tyree came into my office to-day, and from his insolence and coarseness seemed to he under the influence of liquor of some kind. He summoned me to Police Court, as he said, because my horse got his front feet on sidewalk.
“He lied by saying that people complained of it, and when I questioned 'him, as to the complainants he confessed to an untruth. I at once removed my horse to the stable, though of great inconvenience to me, on account of my peculiar class of work, as you must know.
“He was angry from some cause, and was very rude in his manners. I have seen no such brutality exhibited without cause by any other policeman, and such creatures should be in some other position, and not take their spite out on gentlemen, as I certainly violated no law to my knowledge and will. He is a low-bred, vulgar man, and surely unacquainted with his duties, or over-rides them.
“Respectfully,
“Your Obt. Svt.,
“H. W. HARRISOH.”

A few days thereafter Tyree brought suit against Harrison, and upon the trial the jury gave him a verdict of $1,000. This verdict was, upon, motion, of the defendant, set aside, to which action of the court the plaintiff filed his hill of exception. At another day, the case was submitted to the court without a jury, and a judgment was rendered for the defendant. Thereupon Tyree obtained a writ of error from one of the judges of this court, and the error assigned is that the court should have rendered a judgment for the plaintiff upon the verdict of the jury.

There is no doubt that the letter which was addressed to the Mayor is a privileged communication. It is not only the right, but the duty, of the citizen to make complaint of any misconduct upon the part of officials to those charged with the supervision over them, and it is for the court to say what communications are privileged, and for the jury to determine whether or not the privilege has been abused.

As was said by Judge Lewis in Strode v. Clement, 90 Va. 556: “Ordinarily the law implies malice from the use of words defamatory or insulting. But the presumption is the other way, where the occasion of the publication is privileged, and the onus is then upon the plaintiff to prove malice in fact. Where the defendant acts in performance of a duty, legal or social, or in defence of his own interests, the occasion is privileged.....

But the question of good faith, belief in the truth of the statement, and the existence of actual malice remains for the jury.” Klinck v. Kolby, 46 N. Y. 427.

Ln the same case it is said “that strong or violent language dis-proportioned to the occasion may raise 'an inference of malice, and thus lose the privilege that would otherwise attach to it.”

These principles were embodied in the instructions given to the jury in the case under consideration. The court told the jury that the communication which was the foundation of the action was privileged, and left it to the jury to say whether the privilege had been used in good faith, and without malice.

The principal witnesses were the parties themselves. Tyree’s account of what was said and done 'by Mm upon the occasion of his visit to Harrison’s office, which called forth the letter of August 10, is that he waited upon Dr. Harrison, in the discharge of 'his duty, and informed him that his horse was standing upon the sidewalk, in violation of one of the ordinances of the city; that he treated him with politeness, courtesy, and respect; that he was guilty of no rudeness of manner or language ; that he did not threaten to arrest him, but merely notified him to appear before the Police Court.

Dr. Harrison’s account of this interview is substantially a reproduction of what appears in his letter. He says that Tyree’s first remark was that he would have to arrest him because everybody was complaining about his horse upon the sidewalk, and that he was tired running after him; that his face was red, and his manner violent, vulgar, coarse, and brutal.

Immediately after this interview Dr. Harrison went to the office of the Mayor to make complaint, but did not find him, and during the 'afternoon he met with Tyree upon the street, and some conversation took place between them, in which Harrison demanded to know who had lodged a complaint against him, to which, Tyree, says, he replied: “I told him that complaint had been made. He insisted on my telling who it was. I did not tell him on account of the condition he was in—mad; I did not want him to go back to see Mr. Greene. I said you saw your horse on the sidewalk, and I saw it on the sidewalk.” It may be as well to state that the Mr. Greene here alluded to was the owner of the premises in front of which the horse was found, and from whom Tyree ascertained that it belonged to Dr. Harrison. The letter, it will be recalled, states that “he lied by saying that people complained of it, and when I questioned him as to the complaints he confessed to an untruth.” This charge is based upon the interview in the street in the afternoon to which we have just alluded, and in which Tyree states that he refrained from informing Dr. Harrison of what had occurred, because, as he says: “I did not want him to go back to see Mr. Greene.” Tn other words, Tyree did not wish to bring about a difficulty between these two gentlemen.

"We have not attempted to state in detail the evidence in the ease. 'Enough has been said to show that there is not only a strong conflict of evidence, but that the principal witnesses are almost wholly contradictory of each other. If Tyree’s version of the occurrences which he narrrates is to be accepted, his conduct was beyond reproach, and furnished no cause for any complaint whatever. H, on the other hand, Dr. Harrison’s version be true, he would naturally have been justly irritated, and it might be said that the occasion would have excused him.

It is for the jury to pass upon the credibility of witnesses, and upon the weight of evidence. When their verdict is rendered, courts have, it is true, a restricted power to review their findings as to the preponderance of the testimony; but the credibility of witnesses is exclusively for the jury.

In this case, as we have seen, the jury rendered a verdict with which the judge of the trial court was. not satisfied, -and it was set aside. ¡Such a case does n'ot stand upon a demurrer to- evidence. As was said by this court in Chapman v. Real Estate Inv. Co., 96 Va. 177: “If the trial judge is dissatisfied with the verdict, and grants ia new trial, some latitude must be allowed to his discretion,” but in such a case the verdict of the jury “is entitled to great respect, ¡and should not be disturbed even by the trial court, unless plainly against the evidence”—Marshall v. Valley R. R. Co., 99 Va. 804—and in that case, there being a strong conflict in the testimony, the judgment of the trial court setting aside the verdict was reversed.

It is true that in Strode v. Clement, supra, the court reversed the judgment which awarded damages, because it was held that the communication complained of was privileged, and that the presumption that the defendant acted in good faith and without malice was not rebutted by the evidence, although the jury had found a verdict for the plaintiff; but that case is to be distinguished from the one under consideration in this decisive particular: In it only one witness was examined, and from his evidence the facts of the case appeared, “thus affording the appellate court the same opportunity to draw their conclusion as the trial court, and the jury possessed;” while here, the evidence is conflicting, the witnesses are contradictory of each other in every important particular, and just such a ease is presented as is peculiarly within the province of a jury.

We 'are of opinion that the judgment of the Circuit Court should he reversed, and judgment rendered for plaintiff in error upon the verdict of the jury.

Reversed.  