#### ANDERSON v GRIFFIS

Ohio Appeals, 2nd Dist, Shelby Co

No 71.

Decided July 25, 1929

H. T. Matthews and H. E. Beery and James & Coolidge, Dayton, for Anderson.

J. H. Cooke, Lima, Hess & Hess, Sidney, and Taylor Cummins, for Griffis.

*247ALLREAD, J.

There were exceptions to the introduction of evidence. We will only refer to one exception, to-wit the one based upon a ruling by the Court at the conclusion of the Plaintiff’s evidence. A motion was made for a ruling of the Court as to the sufficiency of the publication in respect to its being dictated to the stenographer of the defendant. The Court overruled the objection and we think the ruling of the court is in accordance with the best considered cases based upon the necessities of modern business as to the use of a stenographer. We think that the character of the stenographer is a confidential one, and the dictation of a letter such as the one in controversy, to a stenographer, in good faith, cannot be considered a publication so as to be made the basis of a suit for libel.

Upon the other motion made to the court at the close of the plaintiff’s evidence, to instruct a verdict for the defendant, we cannot escape the conclusion that the Trial Court w,as in error.

The defense was a special privilege, and denies the charge of the plaintiff that the publication of the letter was malicious. It was necessary to the plea of privilege that there was an absence of malice in the publication. There was evidence offered, tending to prove that the defendant Griffis, after Anderson had left his Company and organized the Pioneer Body Company, had often met Anderson on the street and had failed to speak to him.

There was evidence tending to show that their relations after the severance of business relations was somewhat strained. We think there was enough of this evidence to require the case to go to the jury, but besides these, there is a par-graph or two in the letter written by Griffis which is capable of a construction that there was some malice in the letter itself.

The question of privilege was considered by the Supreme Court in the case of Mauk vs. Brundage, 68 Ohio State, 89. In that case it was held that where the publication upon its face is capable of a construction that the publication was maliciously made, the question of privilege cannot be applied.

Also it was held in that case that the question of privilege is one to be considered by the Court only in case the controlling facts are conceded. Where there is a question of fact, as for instance on the issue as to malice, is presented, the case must go to the jury.

There is a question made as to whether the recent decisions of the Supreme Court justify the overruling of the scintilla rule. The decision of Judge Jones in the case of Bag Co. vs. Jaite, 112 OS. 506, is the decision of three judges of the court, whereas in the more recent case decided by Judge Marshall, Gas Co., vs. Broadbeck, 114 OS. 429, the scintilla rule is again announced as the decision of the court. We are therefore required to hold that the scintilla rule is still in force.

We are of opinion that there is enough in the plaintiff’s case to have required the overruling of the motion to instruct a verdict for the defendant. We are, therefore of opinion that the judgment *248of the Court of Common Pleas must be reversed and case remanded for a new trial.

Kunkle and Hornbeck, JJ., concur.