The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-03-24
Superior Court.
Before Hon. Judge Bosworth.

ACTION FOR sLANpER-sMART DAMAGES.
MARCH 22.-Richard G. Fo.cles VS.. Henry Bomeis-
This action for SANDER which occupied the Court
four days. The defendant is merchant and of the firm
of Bowen McNamee, who do business in Broadway The
plaintiff formerly in their employ clerk and had
charge of their glove department for about two years
He was discharged in November 1851 in consequence Of
personal difficulty between himself and another clerk
In December following he decided going to Cincinnati
and applied to the house Of Bowen McNamee for letters
of recommendation, which given him by Mr. II. L.
Stone member Of the firm 1t proved that Mr.
Bowen knew of and consulted about the general let
ter Plaintiff proceeded to Cincinnati and obtained sit
nation with Geo. NJ Wood extensive merchant in that
place In the latter part of the month Of February fol
lowing Jacob +. Cole, partner Of Geo NJ Wood, came
the city Of New York to purchase goods and to
different house to select gloves having been formerly in
the habit of obtaining his supply at Bowen NcNamee
1t alleged that Bowen knew of this fact and that
he uttered the slanderous words in 1t also
stated that defendant in an interview with Mr. Coe said
'Mr. Fowes has become such notorious liar that we
could pla ce little confidence in him. In fact,
strongly convinced OF his dishonesty that
have wrisn to John Shitto Of Cincinnati to employ
police force to watch hun. This course brought
about the fact of Fowles having six trunks in
his possession when he left New York. The defendant
justified in his answer that 'Fowles became such
torious liar that said firm could place little conf
dence in him The proof to sustain this defence consist
ed the evidence of seventeen OF the clerks of Bowen
McNamee, who testified 10 several instances in which
the plaintiff made extravagant statements about the
OF goods sold in his department and misrepresen
taons to customers about the quality and price of goods
he sold Them and alse to the amount Of his salary 1t
contended by the plaintiff that the defendant
guilty of like representations
Counsel having summed up Judge Ellsworth proceeded
to charge the jury, He sad -
Four days have been occupied in the examination Of the
Witnesses who have testified this trial full day
has Teen devoted snsy sis Of the evidence, its hear
ing and effect upon the issues you are TO decide You
cannot be aided bya resatement Of the evidence shall
Therefore proceed to state the rules applicable to the
case and by which lou TO be governed considering
action lies proof of the speaking of the words. II
they impute crime it enough to prove that the words
spoken So. if they npute conduct to the person
of whom they spoken in relation to his particular
trade vocation, which, if true, would render him
unworthy of employment, they actionable with
out proof that any actual damage has been sustained
So, words falsely spoken though not otherwise actiona
able become so it, in consequence OF the speaking OF
Them special damage has resulted az being discharged
from employ ment, being prevented from obtaining
employment In the two classes OF first mentioned
all the plaintiff is obliged to do to entte him to
is 10 prove the speaking OF the words. The defendant
must then establish defence, or submit to verdict
against him. In the last case III addition TO proving the
words spoken, the plaintiff must prove that the particular
special damage stated in his complaint caused oy
the speaking of the words When such proof has been
made if the defsmatory statement not privileged
the defendant must either establish defence
be subjected to such damages as jury deem Just. The
words spoken if actonable of themselves, presumed
to be false until proved to be true, and malice in speak
ing them is inferred ard need not be proved, unless
spoken privileged occasion. The defendant is at
liberty in all cases to that what he said true
If he proves the charge 10 be true, in substance and
however, he states answer that he viii prove
il 10 lie true but e TO do such conduct is deemed
a2grayaon Of the original wrong and ustihes jury in
increasing the damages soa defendant may prove any
facts tending to establish the truth of the charge
but tending 10 show that he believed it to be and
that he not actgated by act ual malice in mitgs
tion OF damages, but not as fun defence The deep
dant is ut liberty, when sued for q SANDER mpGting
some offence. 10 show, if he can, that the plain
tfs general character is bad If he shows this, it is to
be considered in estimating damages but such proof is
not an absolute defence; plaintiff in such case en-
titled TO hs actual damages. No is de-
praye1 authorize alsify and malicousy
deame m with mpunity. With these general remarks
viii cal attention to the words spoken this
reseryiDg my views as to whether it was privileged com
muncaon until the nature of the accusation has been
considered A general rule words spoken to be
rued by courts and uries according to their natural and
obvious meaning they are susceptible Of two interpre
taons, imputit q crime, unNoithy conduct cf
person in Lis trade occupation and the other not the
ed 10 be understood. Where they ambiguous, Of
doubtful import the jury must find their meaning by the
light OF the cremsa attending the speaking OF them,
disclosed By the evidence One part OF the Charge
that MIR FoWes has become such notorious liar
that could place little confidence him " When
you have the fact that be had been some two years
the clerk Of Bowen & McNamee, and then in the
business Of clerk, and that the words were spoken
10 the man in whose employ he then was, and with
view 10 counterfeit the eject that their letter may
have produced in aiding lin to obtain the situation
be then bad YOU will say by the light thrown upon the
speaking Of the words by these and other attending facts
proved TO your satisfaction, in what they
designed and calculated to be understood The popular
meaning of the word notorious, | understand it,
is publicly known-manitest 10 the world-evident."
1t is commonly used in an i'll sense-s7 notorious
thief, a notorious crime or vice, man motto
rious for his lswdness ayarce Whether that ia its
common meaning will say Was II used ia that sense
in this instance and calculated 10 be understood;
was it designed and calculated to be understood
as inputinE that he had become such a liar that
he had the general reputation of being liar
If designed and calculated convey the idea that he had
acquired with the public the reputation Of notorious
liar that this lis general character that it did not
relate TO his conduct as clerk but that such being his
general reputation, b. Men. merely account OF
that reputation could place little confidence in
him then they would not be actionabe unless you
satisfied that the house of Wood Of Cincinnati dis
charged lin in consequence Of the speaking of the words
If satisfied that lie did discharge him on that account
then the defendant is liable that construction Of
the words unless the charge is proved to he true the
communication was privileged one, and wa made in
good faith If the house Of George ". Wood would nat
have discharged him when it is claimed they old bat for
the speaking OF those words and IL fact they Scbually
dis chargsd him and discharged him in consequence OF
this communication, then specia4 damage IS proved
although you may find they would have discharged him
at subsequent period IL no such communication had
been made Nere the words designed and calculated to
he understood meaning that he had become such
actual liar in the performance o his duties clerk that
bis lying notorious 10 his employers and Others
poyad in their establishment and that for this
they could place little no confidence in him2
II this the ia which they we're ssigned and cal
culatcd 10 tie Understood then thoy charge him with
misconduct in connection with his occupation II the
charge means this, and If such conduct would render
HIM UnSorthY Of employment clerk thes the words
aconabe without proof Of any special damage and
the defendant is Liable. unless he has proved ts charge
70 pe true or uleNb y III pfoecRa Dy IN.
don being privileged one, and it ia not shown 70 have
been made H-aciously g. from improper motives will
now explain to you what understand by privileged
communicates. Words spoken copadentialy upon ad
vice asked or W 10 inquiries made 70 the cha
racttF or competency Of former servant ce rk,
privileged, and in addition TO proof o. the speaking 81
the words, plaintiff must show that the defendant
spohe them mahcieasy. fpSsn in. proper mot
The burthen of proving This il % the plaintiff If urr
IL sahed that the statement made in good faith
or was known TO se fdse il any of of it's ma
teIiai parts or was made 10 g'atify personal
hat Il .rsrfla..a
communication IL Of no avail. The interest. OF
society require, aud the Law alowt. "A former master
employer 10 state freely, 10 having interest In
owing the truth when Gone conhden ally and in good
faith what he kDows believes concerning the charsc
OF former servaat clerk WI hout icing punished
by laader suit and being nlulcea il damages for 40
doing the presumption Of law Il that he asted good
faith and unless the contrary Is made 10 ear he Il
liable. But while the law allows this. II wiz not al
low such occasion to be employed 70 cautiously Sian