RULING CASE LAW

VOLUME XVIII

MALICE

1. In General

2. What Constitutes Malice in Law

3. Malice as a Presumption of Law

4. Improper Motive as Essence of Malice; Malice Required in Various Actions 5. Express or Implied Malice

6. Malice as an Independent Cause of Action

1. In General.-Malice may prompt or attend any injurious act whatever. It figures very largely in the law of crimes, as at common law a crime is not committed if the mind of the person doing the unlawful act is innocent,1 and it is especially important in the consideration of such offenses as arson, malicious mischief, libel and slander, and murder, wherein it is regarded as of the essence of the crime and must be proven. In the field of tort actions the presence or absence of malice is also often a determining factor, and it is a necessary ingredient in such actions as abuse of legal process, slander of title, libel and slander, interference with trade, calling or contract

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1. For a general consideration of the part which guilty intent and malice play in the law of crimes, see CRIMINAL LAW, vol. 8, p. 60 et seq.

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2. See ARSON, vol. 2, pp. 496, 497. 3. See CRIMINAL LAW, vol. 8, pp. 299, 300. p. 456.

4. See LIBEL AND SLANDER, vol. 17, p. 321 et seq.

R. C. L. Vol. XVIII.—1.

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9. See LIBEL AND SLANDER, vol. 17, p. 321 et seq.

relations, 10 and malicious prosecution.11 Malice is not an essential element of false imprisonment, and its existence or non-existence is immaterial, except to increase or mitigate the damages. 12 Nor is malice a necessary part of a statutory action for a wrongful attachment, unless the statute contains an express provision in this respect.13 Actual or compensatory damages are not dependent on proof of malice,14 but the existence of actual malice may be shown in aggravation of damages,15 and as a ground for punitive damages. 16 Malice, in the common acceptation of the term, as used in every-day talk, frequently means hatred, ill will or hostility entertained by one towards another. In its legal sense, however, the term has a very different meaning, although it must be admitted that while the courts have often attempted to arrive at a perfectly exact and satisfactory definition of the term, signifying its legal acceptation in a form at once clear and concise, no very satisfactory permanent results have been achieved. The differing minds of different courts have employed. different terms and language in an attempt to convey substantially the same meaning; and while a general similarity is apparent in all the definitions, the legal mind has not yet crystallized the substance of the term into a terse sentence readily comprehensible by the average juror.18 Moreover, the distinction between malice in law and malice in fact has not always been regarded sufficiently in judicial opinions, and some apparent conflict has resulted. Nor does the term "malice" always have the same signification in law. In actions for malicious prosecution, the word has sometimes a meaning and force different from what it has in actions on the case for slander. 19

2. What Constitutes Malice in Law.-Possibly about as clear, comprehensive, and correct a definition of malice as the authorities afford is, that it is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.20 Another rule laid

10. See INTERFERENCE, vol. 15, pp. McDonald v. Brown, 23 R. I. 546, 51 46, 56, 70, 84. Atl. 213, 91 A. S. R. 659, 58 L.R.A. PROSECUTION, 768; State v. Levelle, 34 S. C. 120, 13 S. E. 319, 27 A. S. R. 799.

11. See MALICIOUS

post, par. 16.

12. See FALSE IMPRISONMENT, vol. 11, p. 794.

13. For a full consideration of the part which malice plays in an action for a wrongful attachment, see ATTACHMENT, vol. 2, p. 897 et seq.

14. See DAMAGES, vol. 8, p. 428. 15. See DAMAGES, vol. 8, pp. 529, 552.

16. See DAMAGES, vol. 8, pp. 585588, 590.

17. Tinker v. Colwell, 193 U. S. 473, 24 S. Ct. 505, 48 U. S. (L. ed.) 754;

Note: 19 L.R.A. (N.S.) 273.

18. Martinez v. State, 30 Tex. App. 129, 16 S. W. 767, 28 A. S. R. 895. See next succeeding paragraph.

19. See infra, par. 4.

20. Allen v. United States, 164 U. S. 492, 17 S. Ct. 154, 41 U. S. (L. ed.) 528; Morgan v. Durfee, 69 Mo. 469, 33 Am. Rep. 508; Spellman v. Richmond, etc., R. Co., 35 S. C. 475, 14 S. E. 947, 28 A. S. R. 858; Martinez v. State, 30 Tex. App. 129, 16 S. W. 767, 28 A. S. R. 895.

down as equally correct is thus defined: Malice, in its legal sense, means the intentional doing of a wrongful act towards another, without legal justification or excuse,1 or, in other words, the wilful violation of a known right. This is substantially the famous definition of malice by Bayley, J., in Bromage v. Proser (4 Barn. & C. 247), whose remarks thereon have become such a classic in the law that they may well be quoted in full. They are as follows: "Malice in common acceptation means ill will against a person; but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally and without just cause or excuse. If I maim cattle without knowing whose they are, if I poison a fishery without knowing the owner, I do it of malice, because it is a wrongful act and done intentionally. If I am arraigned of felony, and wilfully stand mute, I am said to do it of malice, because it is intentional and without just cause or excuse. If I traduce a man, whether I know him or not and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury whether I meant to produce an injury or not." 8 Malice has been otherwise variously defined as a state of mind which prompts a conscious violation of law to the prejudice and injury of another; as denoting an action flowing from any wicked and corrupt motive; as a depraved inclination on the part of a person to disregard the rights of others, which intent is manifested by his injurious acts; as denoting a wicked intention of the mind, an act done with a depraved mind and attendant with circumstances which indicate a wilful disregard of the rights or safety of others; as a term of art importing wickedness and excluding a just cause or excuse; as indicating an act done on

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1. Maynard v. Firemen's Fund Ins. Co., 34 Cal. 48, 91 Am. Dec. 672; Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 A. S. R. 320; Alt v. State, 88 Neb. 259, 129 W. 432, 35 L.R.A. (N.S.) 1212; McDonald v. Brown, 23 R. I. 546, 51 Atl. 213, 91 A. S. R. 659, 58 L.R.A. 768; State v. Jackson, 36 S. C. 487, 15 S. E. 559, 31 A. S. R. 890; State v. McDaniel, 68 S. C. 304, 47 S. E. 384, 102 A. S. R. 661; Martinez v. State, 30 Tex. App. 129, 16 S. W. 767, 28 A. S. R. 895; Smith v. Nippert, 76 Wis. 86, 44 N. W. 846, 20 A. S. R. 26.

63.

Note: 33 A. S. R. 421.

See also CRIMINAL LAW, vol. 8, p.

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2. London Guarantee, etc., Co. v. Horn, 206 Ill. 493, 69 N. E. 526, 99 A. S. R. 185.

3. Tinker v. Colwell, 193 U. S. 473, 24 S. Ct. 505, 48 U. S. (L. ed.) 754; Schaffner v. Ehrman, 139 Ill. 109, 28 N. E. 917, 32 A. S. R. 192, 15 L.R.A. 134; Com. v. York, 9 Metc. (Mass.) 93, 43 Am. Dec. 373.

4. Com. v. Chance, 174 Mass. 245, 54 N. E. 551, 75 A. S. R. 306.

5. McDonald v. Brown, 23 R. I. 546, 51 Atl. 213, 91 A. S. R. 659, 58 L.R.A. 768.

6. Thiede v. Utah, 159 U. S. 510, 16 S. Ct. 62, 40 U. S. (L. ed.) 237.

7. State v. McDaniel, 68 S. C. 304, 47 S. E. 384, 102 A. S. R. 661.