#### HELEN L. WAKEFIELD v. SIMEON M. SMITHWICK.

Where, in an action for defamation, it appears that a defendant, authorised by his relation to the party addressed, to" make a “ privileged eommunica*328tion,” in professing to do so, makes a false charge, the inference of malice is against him, and the burden is put upon him to show that he aoted *bona fide.*

Where a party authorised to make *a, priviledged communication,*stated false matter, and his Honor left it to the jury to say whether, “in communicating what he had heard and believed to be true,” he acted in good faith, and there was no evidence that he had heard any thing, nor none as to how he believed, it was held to be error.

It is error to leave a jury to draw inferences without evidence,

ActxoN on tbe Case for a libel and for slanderous words spoken, tried before Manly, Judge, at the Spring Term, 1857, of Martin Superior Court. *'*

Pleas, “ general issue” and “ privileged communication.” Miss Bridgman was the proprietor of two schools, one at Plymouth and the other at "Williamston. She had employed the plaintiff to teach at the latter place, apd while she was attending to her school at Plymouth, she left the plaintiff to board in the family of the defendant, and under his care and protection. "While the plaintiff was thus boarding at his house, the defendant wrote to Miss Bridgman of, and concerning the plaintiff, the following letter, viz :

“ Williamston, 22nd February, 1853.

“ Miss Bridgman — Madam: I deem.it my duty to inform you that I have discharged Miss Wakefield from boarding at my house, her conduct, as I thought, was unladyfied, and as such, I told her unless it .altered, she must look another boarding house ; so she ha^ left and gone to Mr. Jordan. I think, Madam, that your School will shortly be broken up unless there is a change. Her conduct was, that she was walking the streets at a late hour of the night with a young man in this place, and would meet at Jew Cohen’s, and the curtains would be dropped, and they left by themselves. Such conduct I could not stand at my house, so she and Mr. Ward has both left my house. I am assured, madam, that you cannot get five scholars to the next session, if she is to be the teacher. I want you to come up as I can tell many than I can write.

Tour ob’t. friend, &c.”

*329The letter was mailed for transmission to Plymouth, where Miss Bridgman was superintending the school at that place. She arrived at "Williamston on the evening of the day on which the letter was mailed, and without having received it, she, on the same day, discharged the plaintiff from teaching in the school. Miss Bridgman testified that she received the letter at the defendant’s house, within two days after it was written ; that she did not remember by whom it was delivered to her; that she might have known that the defendant had sent her a letter, but she had not seen it, and it did not influence her in discharging the plaintiff.

It did not appear whether the 'defendant knew of plaintiff’s discharge from the school when the letter was put into Miss Bridgman’s hands.

There was evidence tending to show that the allegations in the letter were untrue. The plaintiff also proved the utterance, by the defendant, of the language of the letter, and other words of similar import to several other persons. This was after writing the above letter, and in reply to enquiries made of him, why he liad turned off the plaintiff as a boarder.

The defendant offered no testimony, but contended that the circumstances under which the letter was written, and the words spoken, repelled the idea of malice; that they were privileged communications; and, moreover, that they did not constitute a charge of incontinence.

The plaintiff’s counsel contended that the letter was not a privileged communication; that if the relation of the parties justified a privileged communication, it did not justify such a one as was made; that it appeared from the proof, that the .statements in the letter were false, and the communication *being prim,a facie*actionable, malice was an inference of law, which the defendant had not rebutted.

His Honor charged the jury that it was not necessary for the language of the libel to import incontinence in order to make it actionable. If it were calculated socially to degrade the plaintiff, and if it were untrue, it would be libelous.

*330Upon the point of privilege, the Court instructed the jury that, if Miss Bridgman, to whom the letter was addressed, and in whose employment plaintiff was, gave the defendant charge over her as stated, and the defendant wrote the letter in fulfillment of that charge, communicating what he had heard and believed to be true, the defendant would not be liable in damages ; the presumption of malice arising from the publication of untrue, libellous matter, would, iu that case, be rebutted. But if the defendant had no such charge ; or having it, if the publication was made out of malice, he would be liable. Plaintiff excepted.

With respect to the words spoken, they were left to thfe jury to enquire whether they imported an allegation of incon* tinency against the plaintiff, with instruction, if they believed they did, to find damages for the plaintiff, as there was no question of privilege applicable to this count in the declaration.

The jury found in favor of the defendant. Judgment and appeal by plaintiff.

*B. F. Moore*and *Winston, Jr.,*for plaintiff.

*Hodman,*for defendant.

Pearson, J.

When a defendant in an action for a libel pleads justification, he takes upon himself the burden of proving that the libellous matter is true in point of fact. The defense, under the doctrine of privileged communication, is much broader, and much more favorable to the defendant; for if he succeeds in proving such a relation between himself and the person to whom the communication is made, as au-thorises him to make it, the burden is upon the plaintiff to prove that it was not made *bona fide*in consequence of such relation, but out of malice, and that the existence of such relation was used as a mere cover for his malignant designs. When, however, the plaintiff shows that the matter communicated was false, the qiiestion of *bonafides*becomes an open one, and the defendant is called on for some explanation to meet the infer*331ence arising from.tbe fact that lie has communicated false information. For unless it appears ,that be' was mistaken, and bad innocently fallen into error, astbat.be had probable cause to believe wbat be communicated to be true, or took up the impression from wbat bad been told him, or from wbat bad become town gossip, or that the plaintiff’s conduct was so imprudent as to have become a fit subject for observation ; in other words, unless he canpffer some sort of explanation, the fact of the matter communicated being *-false,*puts it out of bis power to say that he made it out of tenderness to the party who bad been left under bis protection, or out of regard to the interests of the party -who bad imposed the charge upon him, and not out of malice. In the consideration of this question, the character and general tone of the communication made, will, of course, be matter for the jury. There is some conflict among the cases, but this we believe to be the principle established by them. It is commended by its good sense, and is certainly calculated to hit the merits of such questions. *Fountain*v. Boodle, 43 E. C. L. Rep. 605.

Tested by this principle, there is error in the charge of his Honor, and the plaintiff has ground to complain of the manner in which the case was put to the jury. His Honor, after holding that the letter was libellous, and that if the evidence ■was believed, the communication was' privileged, tells the jury that, if the defendant wrote the letter in fulfillment “ of the charge confided to him, *córrmmnicaüng what he had hea/rd and believed to be true,*in good faith, and not out of malice, he was not liable.” The statement does not set out any evidence ini regard to what the defendant *had*heard, or any facts tending to show that he did not communicate the matter as being of his own knowledge, or tending to show that he believed it to be true, or had probable cause so to believe. It is error to leave a jury to draw inferences, without evidence.

It is not necessary to advert to the count for verbal slander. *Yenvr'e de novo.*

Per Curiam. Judgment reversed,.