#### Richard Harcourt *versus*John T. Harrison.

Feb. Term, 1829.

It is well settled, that in an action of slander for words which are not actionable *per se,*the plaintiff cannot recover, unless he shows special damage as the consequence of the words. And *quart*? Whether words spoken by a public officer *in his official capacity*concerning another, are ever actionable ? And if so, whether the plaintiff must not show express malice in order to maintain the action *1*

This was an action on the case, brought to.recover damages of the defendant, for defamatory words, spoken by him of the plaintiff. The declaration contained three counts. The first count charged the defendant with uttering and publishing, on the I lth day of June in the year 1828, false, slanderous and defamatory words against the plaintiff to James R. Manly and Smith Cutter, two of the health commissioners of the city of New-York, '(“ *the “ said defendant being also a commissioner of health,”)*the plaintiff then being steward, of the Marine Hospital at Staten Island, which office he had held for twenty-six years and upwards.

The words charged were as follows:—“ He, (meaning the “ plaintiff) sold or disposed of to one-Gibson, a fine coat, “belonging to a person wiio died in the Marine Hospital, and “ which had been claimed by one English, a relative of the said “ deceased person, but that he (the defendant) could get no ac- “ count of it; that the commissioners had sent down two men to “ search his (the plaintiff’s) house on suspicion of having hospital “ property concealed in. his garret, and that he (the plaintiff) had “ in Ms possession concealed, a cask of empty bottles or vials “ which were the property of the hospital.”

The second count charged the defendant with having falsely and maliciously proclaimed and published in the presence.'of divers good and worthy people of this state, the following words, viz: “he (meaning the plaintiff) is a thief, and he had been “ twenty years or upwards in the establishment of the hospital, “ and become rich by stealing- and pilfering.”

The third count charged the defendant with having spoken, and published the words following, viz: “He (meaning the plain- *475“ tiff) is a thief.” “ By reason whereof the said James R. Manley “ and Smith Cutter, health commissioners as aforesaid, *removed “ and displaced him*the said plaintiff, from the office of steward of “ the Marine Hospital at Staten Island, and have always since “ refused to employ him as such steward *;*whereby he the said “ plaintiff hath been and still is out of employment, and is de- “ prived of the means of supporting himself and his family, and *“*hath sustained damages to the amount of ten thousand dol- “ lars.”

The defendant pleaded t/ie *general issue,*and the cause was tried before Mr, Justice Oakley. At the trial the plaintiff called one Ellen Douglass as a witness, who testified, that she had been two years at the hospital; that in the month of June 1828, on a Sunday, the plaintiff and defendant entered the hospital in anger ; the defendant dismissed the plaintiff and locked the door, and said, “ you are a foreigner, you have made your riches by pilfering and “ stealing, you have sold coats and sent them up the country;” to which the plaintiff replied, “ you are a Jerseyman, or a scoun- “ drel.”

Doctor James R. Manic}', a witness for the plaintiff, testified, that he went down to the quarantine ground with Doctor Cutter, in consequence of a letter which the commissioners had received from Doctor Harrison, stating that he had dismissed Richard Harcourt for insubordination and disorderly conduct. The defendant *officially*communicated to the witness and Doctor Cutter, the other two members of the board, the reasons why the defendant had dismissed the plaintiff; and that the declarations of the defendant were all made officially to the witness and his colleague, in the course of their *official duties, acting as commissioners of health.*That himself and the other commissioner, Doctor Cutter, refused to dismiss the plaintiff upon the charges contained in the letter ; whereupon Doctor Harrison said, if *that*was not enough there were *other*and *public*reasons whj he ought to be dismissed. That he had sold or improperly disposed of property belonging to the hospital, and the defendant mentioned particularly a coat belonging to some person who had died hr the hospital. That the commissioners had some years before, sent down to search *476his house, and a man by the name of English had claimed the coat, and the defendant said that *Fountain*could tell more about Doctor Harrison did not say he knew these charges from his own observation, but he personally knew of the searching of the house. When the plaintiff’s son was appointed steward, (ajoung man who was not of age,) the defendant remarked, that he did not like to have the money pass into the plaintiff’s hands. Doctor Cutter being sworn, corroborated the statements made b> Doctor Manley in all respects.

James H. Ward, a witness on the part of the plaintiff, testified, that he had heard the defendant frequently speak of the plaintiff’s good character. The defendant said, “ if we lose him Ave lose the “ best citizen in Richmond county.” Upon this evidence the *plaintiff*rested his cause. The defendant then called one Andrew Hyer as arvitness, who testified, that on a certain *Sunday*in June he heard the plaintiff and defendant conversing together. The *plaintiff*said, “ you might as well call *me*a thiefdefendant said, “ no, *1 do not*call you a thief,”—“ I do not consider you as steAV- *“*ard any longer.” Plaintiff replied, “I was appointed by your <c masters, and will not leaveneither appeared angry, but conversation Avas had about clothing.

Doctor Charles II. Havens, a Avitness for the defendant, testified that the first charge made against the plaintiff by the defendant to the commissioners Avas for *insubordination.*The defendant then stated that he had public reasons to urge against the plaintiff; and asked Doctor Manley if he had not heard of “ *the search,”*from Doctor Quackenbos *l*The defendant also told the commissioners that he had been annoyed by a man by the name of English, about some clothing Avhich he could not be Satisfied with; and was perfecty mild Avhile before the commissioners.

Doctor Nicholas J. Quackenbos, being called by the defendant, tesfied, that a search Avas made six or seven years ago, in Doctor DeAvitt’s time, which ended in nothing. Doctor Harrison knew of it then, and they Avere *all*satisfied that therewas nothing in that matter, which could impeach the plaintiff. The plaintiff' had beep steward of the hospital from its commencement.

*477John Fountain, a witness on the part of the defendant, testifified, that he saw a barrel of vials in a certain place, and told the defendant of their being concealed there. After the plaintiff was dismisssed by Doctor Harrison, the defendant called upon hint in relation to it, and he then gave the name of the plaintiff to the defendant. The counsel for the plaintiff here interposed an objection to the testimony of Fountain, which was overruled by the Court.

The defendant then produced one David De Groot as a witness, who testified that he went to see Gibson at the request of the defendant, and Gibson told him that he got the coat from the plaintiff *and the plaintiff has since told him that he gave it to Gibson, and that it was an old coat thrown away, belonging to the hospital.*The same objection was made to the testimony of De Groot which was interposed to that of Fountain, but it was overruled by the Court.

The plaintiff then called one William Wood as a witness, who testified, that about a year before the trial he heard the defendant speak of the plaintiff in the highest terms. Here the testimony being closed on both sides, the counsel for the parties summed up the cause: and the presiding Judge having charged the jury, they returned their verdict for the defendant.

The plaintiff now moved for a new trial, upon the following grounds, viz :

I. That evidence tending to a justification of the words spoken and proved, cannot be given under the general issue. [7 *Cow-en,*630.]

II. That the words spoken and proved in the first count of the declaration are actionable, although said in the official capacity of the defendant, because they were maliciously spoken.

*Mr. Ogden Hoffman,*for the plaintiff,

in support of these propositions, observed, that the cause of complaint at the trial was, that the Judge permitted the defendant to give in evidence under the *478general issue, circumstances which tended to prove the truth of the. words spoken. These are to be found in the evidence of De Groot. This testimony took the plaintiff by surprise, because, not supposing that any evidence of the kind could be offered under the pleadings, he did not go into Court prepared to explain De Groot’s testimony, which he easily could have done.

*Mr. Hugh*Maxwell, for the defendant,

said, that the testimony of De Groot was' not offered for the purposes of justification, but to rebut the presumption of malice. But he contended, that this action, upon general principles, could not be maintained at all under the facts proved at the trial. The information communicated by the defendant concerning the plaintiff, was furnished in his *'public and official capacity.*He had a right to communicate to his official associates such facts relating to a subordinate officer as tended to his disparagement, and the defendant has not overstepped these limits. [He cited *Remington v. Congdon, 2 Pick. R.*310. *Stark, on Slan.*198. The Chief Justice here asked Mr. Hoffman if this position were not conclusive against the plaintiff?]

*Hoffman*in reply.

The action can be maintained, if we show *express malice.*Words spoken which imply malice, may be explained by showing, that he who uttered them was in a public station,.and spoke the words in his official character. That shifts the *onus*from the defendant to the plaintiff, and the latter must then show expressly that the defendant was actuated by malicious motives, and had no object of public good in view. Here the defendant was allowed to prove, not that his *motives*were pure, but that his *charge*was *true.*The plaintiff not being prepared to rebut the evidence, was fixed with a crime in the presence of the Court and jury, without the power of showing his innocence. Besides this, there was no proof that De Groot’s information was ever communicated to Doctor Harrison. For these reasons we think a new trial ought to be granted.

*479Oakley, J,

The only question raised at the trial was, whether the plaintiff had sustained any *special damage,*he having set forth such damage in his declaration, and having made it the foundation and gist of his action.

Now it clearly appeared that the defendant *never was removed from his office,*and of course the whole cause of complaint vanished, unless the words spoken were actionable *per se. .*It is not contended, on the part-of the plaintiff, that the words charged in the second and third counts were so proved as to make, it appear that the jury have found a verdict against the evidence on those counts: for the testimony of the plaintiff’s first witness is explained, if not contradicted and destroyed, by that of the first witness on the part of the defendant. The words charged in the *first*count are clearly not actionable in themselves, and the plaintiff, to sustain his action, must prove special damage as the consequence of the words. He failed totally in his attempt to do this, and his action therefore cannot be maintained.

Hoffman, J.

I concur in the general conclusion, that the plaintiff’s motion must be denied; but I do not mean to say, that a public officer is screened in all cases by his official station from the consequences of slanderous charges, even if made in reference to his office, provided such charges *are false and malicious.*Here, however, the plaintiff has not shown such express malice on the part of the defendant, as would justify the Court in setting aside the verdict of the jury, and the motion must therefore be denied.

Jones, C. J.

I shall not express any opinion upon the point last suggested; but I concur with my associates in their refusal to grant this motion, for the reasons which have already been given. The words *proved*are "not actionable per *se,*and the plaintiff failed wholly in his attempt to show special damage. Neither is there any clear evidence of malice on the part of the defendant ; and if we were to grant the position assumed by the *480plaintiff’s counsel, it is not sustained by his proof,[and the application for a new trial must be denied.

*Motion denied.*

[Hoffman and Tallman, *Att’ys for the plff.*W. P. Hawes, *Att'y for the deft.]*