The plaintiff united in his complaint two causes of action for slander with two causes of action for libel, and a fifth cause of action reiterating, by general reference, the allegations of the preceding ones, and charging the report and publishing thereof "to divers other persons." No attention seems to have been given to this cause of action at any time during the trial, and before the plaintiff rested his counsel stated that there was a failure of proof as to the third cause of action, and it was abandoned. Nor, upon this appeal, is any point made by the learned counsel for the appellant as to the first count, and our attention is directed by him only to the disposition made by the trial judge of the questions arising on the second and fourth causes of action.
The defendant, Mrs. Collins, testified that Dora told her "repeatedly, that if I knew anything about any young man *Page 160 she went with, or, in fact, any young man in the place, to tell her, because her father didn't go out a great deal, and had no means of knowing, and people wouldn't be apt to tell him; that I had a brother and I would be more apt to hear it and she wished me to tell her what I knew."
She heard Byam talked about a great deal, but no one spoke well of him, and she did not wish him to marry Dora, so she wrote the letter, sealed it, stamped it, took it to the office and mailed it. It seems Dora was then absent, but returned in a few days, and the letter was given to her in the presence of the plaintiff. She read the letter, then gave it to him. He read it and took it immediately to Dora's father, who either read it or heard it read. The plaintiff then took it to his office, sent for his friends and confidants, among others, Walker and Cameron. He read the letter to Walker and Cameron. On the same day Cameron procured the attendance of Mrs. Collins at his store, where he spoke to her about the letter, and, as she testifies, said: "Byam is going to sue you for it," and he wished to know what she "knew about Byam." In answer, as she testifies, "I told him I didn't wish to tell him; he said he wanted me to tell him just as though he was my lawyer; he said, `I am your friend and I want you to have perfect confidence in me,' and he said, `you know if a person employs a lawyer they tell him everything,' and I said I didn't wish to tell him; I said, `you have heard these things yourself;' he said he didn't know, he would rather I would tell and he could tell better." She avoided and resisted his inquiries and endeavored to leave, but he persisted and "held on to the door-latch" so she could not go out, and the disclosures of that interview now form the subject of complaint as set out in the second cause of action.
The fourth count is founded upon the letter and publication already referred to. At the close of the evidence the plaintiff's counsel asked the trial court to "hold as matter of law and charge the jury, that the cause of action set out in the fourth count of the complaint was libelous and the communication not privileged; that the cause of action has been *Page 161 established and the only question for the jury is the question of damages." The court declined, but, after reading the letter to the jury, and declaring it to be libelous, charged that liability for writing and publishing it might be avoided by showing that what was written was a privileged communication, and called upon them to determine whether it was of that character. The plaintiff's counsel excepted to the refusal to charge as requested and also to the submission of the question to the jury.
The whole charge must be taken together, and, so taken, it is apparent that the trial judge violated no rule of law in respect to this matter. He called the attention of the jury to the evidence as to the relations between the parties and the request by Miss McNaughton for information, and also to the statements in relation to the plaintiff which had come to the ears of the defendant, and then said: "If the relations of these persons was of such an intimate character as to warrant Mrs. Collins in warning Miss McNaughton against a person whom she had reason to believe was not a fit person, and if Mrs. Collins acted fairly, in good faith, conscientiously, although mistakenly, there can be no recovery against her upon that cause of action." And again: "I say to you, therefore, that if Mrs. Collins had heard these things and the others to which she has testified, and believed them to be true, and had reason to believe them to be true, and if she acted honestly and conscientiously in writing that letter, it is a privileged communication and there can be no recovery against her for that count." And, finally: "If you find the lady was justified in those things or she acted conscientiously and intelligently, as a reasonably prudent person would have acted in similar affairs, on account of her relationship with this lady, your verdict will be generally for the defendant." "If certain facts exist" the judge, in substance, says "the letter is privileged." Whether those facts did exist he properly left for the jury to determine. (Stace v. Griffith, 2 P.C.L.R. 420.) There was, therefore, no error in making *Page 162 this disposition of the question. (Klinck v. Colby, 46 N.Y. 427; Hamilton v. Eno, 81 id. 117.) He held the letter upon its face to be libelous, but as liability for even a libelous publication may be defeated by the occasion or circumstances under which it was made; he left those matters to be inquired of by the jury. We have them established by the verdict and assuming their existence, the important inquiry now is whether the trial judge was right in holding the letter privileged.
The parties directly concerned in this question resided in the same town. The defendant Mrs. Collins and Dora McNaughton (now Mrs. Byam), were from childhood neighbors and intimate friends, and at the time, made material by this inquiry, were unmarried. The latter seems to have supposed that the former had better opportunities than herself to learn the character of the young men of that town, and requested that she would communicate to her anything she might know concerning, among others, those "who went with her," obviously indicating persons whose attentions were of the nature of addresses and given in view of matrimony. In response to this request, as the evidence tends to show and as the jury have found, the defendant wrote the letter complained of. Previous thereto she had uttered no word of disparagement or reproach concerning the plaintiff, and the letter itself was sealed and directed to Miss McNaughton, and in that condition delivered to her. There was no other publication by the writer or with her assent. Was the communication privileged? If so, in the absence of malice, there was a perfect defense to the action so far as the fourth count is concerned. This qualification requires no discussion, because, at the request of the learned counsel for the plaintiff, the trial judge charged the jury that "when one stands in a privileged relation, but makes a false charge, the proof is on her to disprove malice and show that she acted in good faith," thus improperly shifting the burden from the plaintiff upon whom, in the supposed case it properly lay, to the defendant to whom it did not belong. (Gassett v. Gilbert, 6 Gray, 94; Somerville v. Hawkins, 10 C.B. 583; Hastings v.Lusk, 22 Wend. 414.) *Page 163
The error was against the defendant, but that is of no importance since the jury by their verdict found that there was no malice, and that the defendant acted in good faith. It is well settled that without malice, either express or implied, an action for defamation, by words spoken or written, cannot be supported. In ordinary cases malice is implied from the slander, but there may be a justification from the occasion, and when this appears, an exception to the general rule is created, and the words must be proven to be malicious as well as false. In that aspect of the case, as already stated, the plaintiff failed. The question as to privilege is, however, yet to be considered.
The letter is one of warning or entreaty. It names no one as its subject, but it was conceded that the person referred to was the plaintiff, and he is held up in numerous phrases conveying divers degrees of disparagement and imputation, to reproach and as a person to be feared and avoided. (Craft v. Boite, 1 Saund. and note, 248.) The trial judge, therefore, ruled that it was libelous, and the appellant is entitled to have that ruling stand as the law of the case. The publication was admitted. From these circumstances the law supplied the rest, and the burden of justification or excuse was cast upon the defendant. (Lewis v.Few, 5 Johns. 35.) The question, therefore, is whether the occasion of the publication, or the circumstances prompting it, furnish a legal excuse for that act, and so repel the inference of malice arising from the matter of it, as to bring it within the exception to which I have referred. If it does, then in legal contemplation the communication is privileged. Of such communications there are two classes: In one the privilege is absolute and a shield against any action for defamation, as where the charge, even if false and malicious, is made in the course of official duty or under certain other circumstances not embracing those before us; in the other class the privilege is qualified and may be overcome by proof of malice. This class includes cases where the interest and welfare of society and common convenience require that the defendant should be permitted to speak freely *Page 164 in the relation in which he is placed, provided he confines himself within the bounds of what he believes to be the truth. (Hastings v. Lusk, 22 Wend. 410.)
The law frequently referred to upon this subject is to be found in Toogood v. Spyring (1 Cromp. Mees. Ros. 181-192), and requires that the communication to be privileged should be fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs where his interest is concerned. In Harrison v. Bush (32 Eng. L. E. 173), substantially the same rule is restated, but it is added "that duty cannot be confined to legal duties which may be enforced by indictment, action, or mandamus, but must include moral and social duties of imperfect obligation," and as thus amplified, the rule is adopted in this court and may be considered as well settled (Ormsby v. Douglass, 37 N.Y. 477;Hamilton v. Eno, 81 id. 116.) A common application of the rule is to words spoken by a former master in giving a character of a servant (Weatherston v. Hawkins, 1 Term Rep. 110), or in answering an inquiry concerning the solvency of a tradesman or banker, or between persons having a common interest in the subject to which they relate. It applies, however, to other cases of the same nature, and is meant to protect the communications of business and the necessary confidence of man in man, as where one employed by a sheriff to ascertain and inform him of the facts relating to an interference with a levy upon certain cattle, wrote a letter charging the plaintiff with feloniously taking them (Washburn v. Cooke, 3 Den. 110), or where, at the request of the father, a person made inquiry as to the character of his daughter's husband. (Atwill v. Mackintosh,120 Mass. 177.) In each instance the report, if made in good faith, and reasonably believed true, was held to be privileged. (Atwill v.Mackintosh, supra.) So it is said to extend to the confidential communications of friendship (Holt on Libel, 235), and will undoubtedly include every case where in the discharge of any legal, natural, or social obligation, the defendant states what he honestly believes the plaintiff's *Page 165 character to be, whatever the charges may be which he thus imputes to him. Thus, in McDougall v. Claridge (1 Camp. 267), it was held that a letter written confidentially concerning a solicitor, and under an impression that its statements were well founded, could not be the subject of an action; and in Heser v.Donson, mentioned in Buller's Nisi Prius, page 8, where the defendant said "in confidence and friendship, by way of warning," to one about dealing with the plaintiff, words affecting his credit, no action would lie because the manner of speaking repelled the idea of malice. In White v. Nicholls (3 How. [U.S.] 286), Justice DANIEL enumerates among such communications, "words spoken in confidence and friendship as a caution," and applying the same principle to specific cases, it is laid down in a recent work on this subject (Odgers on Libel and Slander, 210), that a father, guardian, or intimate friend may warn a young man against associating with a particular individual, or may warn a lady not to marry a particular suitor, though under the same circumstances a stranger could not do so without incurring liability.
Among other instances of privilege, and of the same nature, is any communication required by the interest of the person to whom it is made and reasonably called for or warranted by the relation in which the person making it stands to him, as a letter written in good faith by a person to his mother-in-law, warning her of the bad character of the man she was about to marry. (Todd v.Hawkins, 8 Car. P. 88-91.) The same principle was applied inAdcock v. Marsh (8 Ired. [Law], 361.) It there appeared that Anderson Adcock was twice married. His first wife died, leaving a daughter Sally and one other. Upon his second marriage the defendant, Mrs. Marsh, advised the daughters of the first Mrs. Adcock that they ought not to live at their father's, giving reasons in words relating to the plaintiff, his then wife, which were in themselves prima facie actionable. In excuse it was shown that the first Mrs. Adcock "had requested the defendant Marsh, with whom she was very intimate, to give `advice' to her daughters," but the trial judge ruled that this was insufficient in any view to rebut the *Page 166 implication of malice, and after verdict for the plaintiff a new trial was granted, the court of review holding that the communication was privileged if made by the defendant in good faith, and as to that the jury were the proper judges. The learned judge, speaking for the court and referring to the ruling of the trial judge, said: "The idea seems to have been that the communication was not a privileged one, because the defendant had no interest in the matter and stood in no relationship to the witness," the person advised by defendant, "but was in every respect a volunteer," and, after citing and commenting on various cases, says, in substance, that whether there was just cause for the opinion expressed by Mrs. Marsh or not, she was justified in making it known to the daughter if she honestly held that opinion, "and that her communication so made was a privileged one." "And we further hold," he says, "that without any request from the mother, she would under the other circumstances have been justified."
To the same effect are the cases in our own court. In Lewis v. Chapman (16 N.Y. 369), SELDEN, J., enunciates the rule as embracing both alternatives, and says: "There is no doubt that when the communication is made bona fide in answer to inquiries from one having an interest in the information sought, or when the relation between the parties by whom and to whom the communication is made is such as to render it reasonable and proper that the information should be given, it will be regarded as privileged," and referring to the authorities, says, these cases show that all that is necessary to entitle such communications to be so regarded is "that the relation of the parties should be such as to afford reasonable ground for supposing an innocent motive for giving the information and to deprive the act of an appearance of officious intermeddling with the affairs of others," and although the information given in that case was volunteered, and not in answer to any inquiry, the judges all agreed that the relations existing between the person addressed and the defendant, rendered the communication privileged. In the later case of Sunderlin v. Bradstreet (46 N.Y. 128), it appeared that the defendants, of their *Page 167 own volition and for their own profit, collected information concerning the condition of traders, and this they communicated to subscribers not interested in the matter, and the court, reiterating the rule laid down in Lewis v. Chapman (supra), held that, owing to that want of interest in the person addressed, the communication was not privileged. Protection would seem to be due, therefore, to communications between persons having relationship, whether by blood or marriage, or as principal and agent, attorney and client, or as intimate friends, or as the result of any trust or confidence, provided such communications are fairly warranted by a reasonable occasion and honestly made.
It follows that the term malice, in a legal sense, has no application where there is a just cause or occasion for speaking the words complained of, although under other circumstances they would constitute a slanderous charge. (Jones v. Givin, Gilbert's Cas. 185; Washburn v. Cooke, and other cases,supra.) In discussing this question the learned judge, already quoted, says: "When the circumstances show that the defendant may reasonably be supposed to have had a just and worthy motive for making the charge, then the law ceases to infer malice from the mere falsity of the charge and requires from the plaintiff other proof of its existence." (Lewis v. Chapman, supra.) The facts found by the jury, and above adverted to, bring the case at bar within the principle and the rule thus stated. The occasion was the courtship of the plaintiff, and the object of the letter was to give information of his character. It was written in confidence and in friendship to one sought by him in marriage, and thus having a vital interest in the subject, and written also in response to her request. These conditions seem to answer the first branch of the proposition laid down by Judge SELDEN in theChapman Case (supra), and by Judge ALLEN in the SunderlinCase (supra), and also bring the communication directly within the other branch of the rule. If we regard the communication as volunteered, it still remains that Dora, the party to whom the communication was made, had an interest in it, and the writer stood, by *Page 168 reason of her intimate friendship and request, in such relation to her as to make it, at least, proper that the defendant should warn and put her on further inquiry.
I think the communication was privileged by the occasion and by the position of the writer, and the court committed no error in refusing to charge otherwise. Whether the letter was in excess of privilege so conferred, I need not inquire, for such question was for the jury and it was not raised at the trial.
As to the second cause of action, the counsel for the appellant asked the court to charge: "That the charges set out in the second count of the complaint have been substantially proved and stand uncontradicted, and the plaintiff is entitled to recover, and the only question for the jury is one of damages. The court declined so to hold and charge, and plaintiff's counsel duly excepted." In this there was no error:
1st. The allegations of the complaint are not admitted by the answer, but denied, and the plaintiff went into evidence to sustain the issue.
2d. Between the plaintiff's witnesses and the evidence of the defendant there was a conflict.
3d. The communication to Cameron was given in confidence, at his request, and under circumstances which might very well lead to the conclusion that Cameron, as the friend or even agent of the plaintiff, was by him put upon an inquiry, suggested by the letter just before read to him by the plaintiff. (Weatherstone v. Hawkins, supra; King v. Waring, 5 Esp. [N.P.] 13.) The statement was not voluntary, and the occasion of speaking, as well as the words spoken, were to be considered. The submission of it to the jury was proper (2 Greenl. on Ev. § 421), and the language of the judge as applied to it was not inappropriate. (Weatherstone v. Hawkins, supra.)
4th. Nor was it necessary to plead specially that the communication to Cameron was privileged. The defendant's answer alleged that the communication, such as it was, to Cameron was drawn out by him — "was a confidential communication *Page 169 and was made without malice and without any intent to injure the plaintiff," and in the belief of its truth, and denied, among other things, the allegation of malice contained in the complaint. This goes to the very root of the action. If true, it shows there was no malice; and as formerly the defense of privilege was open under the general issue (Hastings v. Lusk,supra; Howard v. Thompson, 21 Wend. 324), so it is now under the denial.
The learned counsel for the appellant argues that the plea of justification set up as a separate defense was insufficient, because, he says, "the matters alleged are stated to have been known at the commencement of the action, and not at the time of uttering or writing the words attributed to the defendant." No objection was made to evidence on that account, and the question was only presented to the trial judge as he was about to give the case to the jury, and then in these words: "That the court should hold as a matter of law that there is no sufficient plea of justification set up in the defendant's answers, and the proofs have not sufficient force to sustain a justification."
The proof shows that the defendant had heard the matters referred to when she wrote the letter, and no objection was made that the evidence was not competent under the answer. But the request when made was double and required the court to pass upon the sufficiency of the evidence to sustain the justification as well as its final presentation upon the pleadings. One branch was for the jury, and upon both grounds the refusal of the court may stand. The other questions presented by the appellant were properly disposed of by the General Term.
The judgment appealed from should, I think, be affirmed.
All concur with EARL, J., for reversal, except DANFORTH, J., dissenting.
Judgment reversed. *Page 170