#### HENRIETTA HARWOOD, Respondent, *v.*NATHANIEL KEECH, Appellant.

*Slander—privileged communications—malice—Tww proved.*

Statements made by a resident of a school district, having a daughter whom he wishes, to send to school, to the trastees of the district as to the bad character of a woman proposed to be employed as a teacher, are privileged, and no recovery can be had therefor without proof of express malice.

Malice is implied from the utterance of slanderous charges not justified or privileged, and a denial of malicious intent is of no avail.

To authorize a recovery in cases where the communications are alleged to be privileged, it is sufficient to prove that the defendant knew the charge to be false.

Appeal from an order denying a motion for a new trial made upon a case and exceptions.

This is an action for slander. The plaintiff complained that the defendant charged her with being a person of unchaste character. The defendant alleged that he was a resident of the school district in which the plaintiff taught; that his daughter attended plaintiff’s *390school; and that the statements were made by him to the trustees of such school district, and were privileged.

*Morris &*Leary, for the appellant.

*E. G.*Lapham, for the respondent.

Mullin, P. J.:

The defendant being a resident of the school district in which it ■was intended to employ the plaintiff as a teacher, and having a daughter that he desired to send to said school, it was not only his fight but his duty, if she was a woman of bad character, to communicate to the trustees such information as he possessed in reference to her character, and the communication thus made was privileged, anff plaintiff could not recover without proof of express malice. *(Thorn*v. Moser, 1 Den., 488; Starkie on Slander [Wend, ed., 1843], chap. 10-13; Townsend on Slander, §209, and note 1004; *Cockayne*v. *Hodgkisson,*5 C. *&*P., 543.)

To prove malice, she called the persons by whom defendant says he was told the matters communicated to the trustees, and they testified that they never told him any of the matters relating to plaintiff’s character, that he said they had. (Townsend, §§240, 241, and notes 1203 and 1209.) It was false, then, that he had been so told by the persons named by him. He disclaimed any personal knowledge in relation to the plaintiff’s character, and hence the jury had the right to find that he did not believe the charges he made against her; as he, could not believe them without some evidence of their truth. Had plaintiff been told as he claims to have been, he would not be liable, notwithstanding the charges were unfounded. The communication to the trustees. would 'then have been a privileged one; but the known falsity of the charge took from the statement to the trustees the immunity given to a privileged communication, and subjected the defendant to liability for defamation. (Townsend, § 241, and notes 1214-1224.)

The defendant swore that the persons named by him informed him of the matters he charged against the plaintiff’s character, as did one or two other witnesses. But the jury did not believe him or his witnesses. Their finding is, of course, conclusive on that subject.

*391Had the defendant the least confidence in the truth of these stories he claimed had been told him about the plaintiff, he would at least have called the three boys who claimed to have seen her having sexual intercourse with Hazelton in the school-house, but he did not venture to do that, and thus save himself from the imputation of having maliciously slandered an unoffending girl, who was endeavoring, by honest labor, to earn a living. The charges were the most infamous that a man could invent against a woman. He struck at her in a way most fatal to her reputation. It was put forward as prompted by the defendant’s zeal for the welfare of the district, when he knew it was false, and could have no other effect than to wound and ruin her.

But this defendant did not limit his communication to the trustees. He made the same imputation against the plaintiff in the presence and hearing of others, as to which there is no shadow of claiming them to be privileged. (Townsend, § 243; *Thorn*v. Moser, 1 Den., 188; *Burlingame*v. *Burlingame,*8 Cow., 141; *Sewall*v. *Catlin,*3 Wend., 291.)

It only remains to inquire whether any errors were committed in the rulings of the court, on the trial or in the charge to the jury-

The first error relied on, was in refusing to allow the defendant to answer the question: “ Did he [Lamb] inquire of you [as to the i charges against the plaintiff], or did you introduce the subject?” ! It was wholly immaterial whether the defendant was asked to make , the statement or whether he volunteered it. In either case it was privileged, unless proved to be made maliciously. '

Defendant was asked whether he had any purpose or thought of injuring the plaintiff. The court refused to permit the question to be answered. Slander is not one of the cases in which a defendant can relieve himself from liability for .a slanderous charge by denying malice. As well might he be permitted to disclaim it upon the trial of an indictment for an offense °in which malice is an element.

In actions of slander, malice is implied from the utterances of slanderous charges, not justified or privileged, and in such cases a denial of malicious intent is of no avail; the law presumes it, and the presumption cannot be rebutted by the slanderer denying it. *392In cases where the communication is claimed to be privileged, and the burden of proving malice rests on the plaintiff in order to recover, and it is proved that the defendant knew the charge to be false, the law again implies malice, and the defendant cannot rebut it. But where there is no direct proof of the known falsity of the charge, but it is sought to be established by facts and circumstances, then it is competent for defendant to disclaim a malicious intent. *(Feidler*v. Darrin, 50 N. Y., 437, 443.)

If, however, the evidence of the defendant as to intent, was competent at the time it was offered, a new tria,l should not be granted, it being established by the subsequent evidence in the case, that the slander was uttered to others besides the trustees, and to whom there could be no pretense of privilege.

The exception to the charge is in these words : The defendant’s counsel excepted to each and every part of the charge, which reads as follows. The counsel then sets out several distinct propositions, and he desires now to avail himself of an exception to each proposition. This he is not entitled to do, unless the whole portion of the charge excepted to is erroneous. Without entering upon an examination of the several parts of the charge excepted to, it is sufficient to say, we do not think the charge erroneous as to all or any of them.

The order refusing a new trial is affirmed.

Order affirmed.