#### Maud Webber, Resp’t, *v.*Dorliska B. Vincent and Wilber J. Vincent, App’lts.

*(Supreme Court, General Term, Fourth Department,*

*Filed February 15, 1890.)*

*1.*Slander—Exemplary damages..

In an actio-i. against a husband and wife for words spoken by the wife, *604the court charged that as to any words spoken by her in the absence of the husband and without his knowledge, the jury, in awarding exemplary damages, should not render damages to as full an extent as if the words were spoken by him or spoken with his knowledge and assent. *JSeld,*that the husband was not entitled to a more favorable charge.

2. Same—Privileged communication.

A privileged communication can only be such when made to an _nterested person alone. If the publication be general, or the statement made to the interested person in the presence of others, it will lose its protection as a privileged communication.

3. Same—Evidence.

A witness may properly be allowed to testify to the whole transaction, although it may include words not charged in the complaint.

4. Same—Damages.

In an action for slanderous words imputing unchastity to plaintiff, a verdict of $800, *Held,*not excessive.

Appeal from judgment entered upon verdict at Jefferson circuit March, 1889, in favor of plaintiff for $800, and from order denying motion on the minutes for a new trial

Action to recover damages for slanderous words, imputing unchastity to plaintiff, uttered by the defendant Dorliska B. Vincent, who is the wife of the other defendant The complaint contained two counts, one for words spoken in July, 1886, and the other in September, 1886.

*W. M. Rogers,*for app’lts; *D. G. Griffin,*for resp’t

Merwin, J.

It is claimed by the appellants that the court erred in charging that exemplary damages could be recovered against the husband. The court did charge, “ that as to any words spoken by the wife in the absence of her husband and without his knowledge, a jury in awarding exemplary damages should not render damages to so full an extent, should be more careful in it, than if the words were spoken by the husband, or spoken with his knowledge or assent. The court in substance followed the rule laid down in *Upton*v. *Upton,*51 Hun, 184; 21 N. Y. State Rep., 559, where it was held that a narrower limit of exemplary damages existed where the husband was made defendant simply because of the marital relation. No case is cited holding that examplary damages cannot be recovered in such a case. On the contrary it has been held in *Fowler*v. *Chichester,*26 Ohio St., 9, that in an action like the present exemplary damages might be allowed. In *Austin*v. *Wilson,*4 Cush., 273, it was held that in an action brought against husband and wife for a libel by the wife, no smaller damages are to be assessed than would be legally recoverable if the libel had been published by her while sole and the action had been against her alone, it being said that a husband is liable for his wife’s acts, when liable at all, to the same extent as if she alone were answerable. In *Lombard*v. *Batchelder,*58 Vt., 558, exemplary damages were held to be recoverable against husband and. wife in an action against them for the malicious trespass of the wife, though the husband was without blame. The case was distinguished from an action against joint wrongdoers, where the improper motive of one cannot be made the ground of aggravating the damages against the other if he is *605free Irom such motive, it being said that in such case the plaintiff .must elect against which party he will seek aggravated damages.

If the action is for the tort of the wife, for which the husband .is liable solely by reason of the wife’s coverture, the plaintiff has no election, he must proceed against both. *Fitzgerald*v. *Quann,*109 N. Y., 441; 16 N. Y. State Rep., 395. The husband is not joined as a defendant on the ground that -her guilt is imputed to him, but because, so long as the marital relation continues, the wife is incapable of being sued alone. Rapallo, J., in *Kowing*v. *Manly.*49 N. Y., 201.

Under the ruling in the *Fitzgerald*case, the liability of the husband is controlled by the common law, and under that the husband was not entitled to a charge any more- favorable than was given.

It is further claimed that the court erred in refusing to submit to the jury the question of privilege.

The defendants asked the court to charge the jury “that if they find the defendant, Dorliska, on the occasion in September, 1886, uttered the words spoken by her in answer to a question or questions asked her by Mrs. Leaman, as testified to by said Dorliska, in good faith, bplieving them to be true about the plaintiff, it was a privileged communication.” This the court refused, and defendants excepted. The testimony of Dorliska on the subject was as follows :

> “ I had a conversation with Mrs. Leaman at my house, in September, 1886; my husband and Mrs. Marshall were present, four -of us; Mrs. Leaman asked me concerning the Webber girls; she asked me if they were respectable girls and fit associates for her ' daughters ; I said that I should not think so, according to my suspicions; I said in tiiy opinion she had been in the family way; Mrs Leaman asked me if I was sure of it, and I said no; but I believed it to be so; she said she had heard the same thing at -Clayton, before she asked me, but said she asked me because she thought I ought to know, living so near them.”

It may be that Mrs. Leaman had such an interest in the information sought that a communication to her alone in good faith in response to inquiry made bv her would be privileged, Selden J., in *Lewis*v. Chapman, 16 N. Y., 374, but the rule in such cases is, that the communication must be made only to those interested in receiving it; if the publication be general, it will lose its protection as a privileged communication. Dolkard’s Starkie on Slander, § 688, marginal paging, 526. Within this rule, the request was properly denied. Others being present, the publication was not to the interested party alone.

It is further claimed that the court erred in admitting evidence over defendant’s objection of words not alleged in the complaint A witness, in testifying to what occurred on the two occasions referred to in the complaint, stated the use by the defendant of an expression somewhat different from the words alleged in the complaint The witness also testified that the defendant used the words as alleged. Whether the words substantially as alleged were proved, was for the jury to say. The witness was properly-allowed to give the whole transaction.

*606It is claimed the damages are excessive. The case was a peculiar one. The degree of aggravation depended on the view taken by the jury of the evidence as given before them. No sufficient ground is made apparent for us to interfere.

No other point is made. It follows the judgment and order-must be affirmed.

Hardin, P. J.—I think the words were not privileged, and I assent to the opinion in all other respects. *Byam*v. *Collins,*111 N. Y., 143; 19 N. Y. State Rep., 581.

Judgment and order affirmed, with costs.

Martin, J., concurs.