dissenting.
As I see it, there are two reversible errors in this record. They are these:
First: Instruction No. 2, given for the plaintiff.
Second: An excessive verdict and judgment.
This is Instruction No. 2:
“Every man is intended to mean the natural and probable consequences of his acts, and is bound to answer for such consequences, and it is not necessary to render the acts complained of malicious that V. H. Dillon should have been actuated by feelings of hatred or ill will toward the plaintiff, or that he entertained or pursued any bad purpose or design. On the contrary he may have been actuated by a general good purpose and have had a real and sincere desire to bring about the reformation of matters or conditions, but in pursuing that design if he willfully inflicted a wrong upon the plaintiff which was not warranted by law, such acts are malicious in law and are in themselves injurious.”
The defendant owns and operates a chain of grocery stores, which are inspected from time to time. An inspector in the line of this legitimate duty came to examine its affairs and the accounts of its manager. That examination appeared to show that he was short in his acounts. The inspector told him that from his examination this shortage did appear.
This communication was privileged; being privileged, no liability could attach unless that privilege was abused, and yet the court told the jury that malice in law might be inferred even if the privilege had not been abused. And even though the jury should believe that this statement of the inspector to the manager was without any “bad purpose or design” and was in fact “actuated by general good purpose.”
Of course an inspector or an auditor, upon an examination, “actuated by general good purpose,” may tell the manager what that examination seemed to indicate, and this, without more, can in no possibility impose any liability upon *167him. It is only when this privilege is abused that liability attaches. Of course a man actuated by good motives could in fact not be actuated by bad motives, and if actuated by good motives the inspector’s conduct was willful only in that he willed to tell the manager the results of his examination. To this privileged communication it was necessary to superadd something before malice could be inferred as a matter of law.
If this were not the law, the calling of these examiners and accountants would be hazardous indeed. Moreover, it might work an injustice on the employee, for the only course which the master might pursue with safety would be to discharge him without any assignment of reasons therefor. It might well be that were the reasons stated, the apparent shortage could be satisfactorily explained and the employee would not be'discharged at all.
It may be conceded that there is evidence in the record from which malice might be inferred, but it must also be conceded that the jury, without looking to this evidence, might have found that these spoken words, spoken in good faith, established malice as a matter of law.
The verdict is excessive.
In C. & O. Ry. Co. v. Arrington, 126 Va. 194, 101 S. E. 415, 423, Prentis, J., said:
“The law wisely leaves the assessment of damages, as a rule, to juries, with the concession that there are no scales in which to weigh human suffering, and no measure by which pecuniary compensation for personal injuries can be accurately ascertained. Nevertheless, it is an ancient and accepted doctrine of the common law, that judges have the power and are clearly charged with the duty of setting aside verdicts where the damages are either so excessive or so small as to shock the conscience and to create the impression that the jury has been influenced by passion or prejudice, or has in some way misconceived or misinterpreted the facts or the law which should guide them to a just conclusion.”
He also said:
*168“In such a case as this, where the amount of the verdict is attacked because it is so unusual, it is proper to make comparisons with the verdicts which other juries have found in other cases for similar injuries; for while each case must be determined by its own facts, it is nevertheless true that the verdicts of other juries which have been approved by the courts, represent the common or average judgment of mankind as to the proper recovery in such cases.”
In slander and libel cases there is no rule for fixing the measure of damages and that measure cannot be reached by any process of computation, just as there is no rule by which we can “weigh human suffering.” But an excessive verdict in either case should be set aside. Boyd v. Boyd, 116 Va. 326, 82 S. E. 110, Ann. Cas. 1916D, 1173.
We have often had occasion to consider cases of a character like that in judgment. They indicate the average judgment of Virginia juries:
Strode v. Clement, 90 Va. 553, 19 S. E. 177.....$ 900.00
Ramsay v. Harrison, 119 Va. 682, 89 S. E. 977.. 2,500.00
Vaughan v. Lytton, 126 Va. 671, 101 S. E. 865.. 3,500.00
Aylor v. Gibbs, 143 Va. 644, 129 S. E. 696...... 1,250.00
Wright v. Cofield, 146 Va. 637, 131 S. E. 787....1,000.00
W. T. Grant Co. v. Owens, 149 Va. 906, 141 S. E. 860 .................................... 900.00
Jordan v. Melville Shoe Corp., 150 Va. 101, 142 S. E. 387 ................................. 3,500.00
Powell v. Young, 151 Va. 985, 144 S. E. 624, 145 S. E. 731 ............................... 1,000.00
Chesapeake Ferry Co. v. Hudgins, 155 Va. 874, 156 S. E. 429 ............................ 7,057.15
Rosenberg v. Mason, 157 Va. 215, 160 S. E. 190. 1,000.00
Snyder v. Fatherly, 158 Va. 335, 163 S. E. 358.. 1,500.00
(two trials) ............................. 3,000.00
Weatherford v. Birchett, 158 Va. 741, 164 S. E. 535 .................................... 2,000.00
Montgomery Ward & Co. v. Nance, 165 Va. 363, 182 S. E. 264 ........................... 5,000.00
*169Peoples Life Ins. Co. v. Talley, 166 Va. 464, 186 S. E. 42.................................$ 600.00
This verdict goes well beyond “the common or average judgment of mankind as to the proper recovery in such cases.”
Eggleston, J., concurs in this dissent.