One defendant was a life insurance association incorporated under the laws of Iowa, with its principal place of business at Des Moines. The other defendant, Eaton, was its medical director, and one Dohaney was its clerk and bookkeeper. W. T. Botts was soliciting agent for the association at the town of Higbee, Mo., and the plaintiff was its medical examiner at that place. The application of one A. P. Milnes for insurance was prepared by plaintiff, signed by the applicant, and turned over to the soliciting agent, Botts, after plaintiff had examined Milnes. The application was then forwarded to the defendant company. After being received by the association, it was given to the medical director, Eaton, who made some minutes thereon, and passed it to Mr. Dohaney, to prepare and forward an answer. Dohaney prepared, addressed, and mailed the following to Botts, the soliciting agent:

"Des Moines, Iowa, Jan. 11, 1896. W. T. Botts, Higbee, Mo.-Dear Sir,I write you in reference to medical examiner at Higbee. I have before me the application of Adolphus P. Milnes. This application shows on the face of it to be a forgery of his signature, and it is written by Dr. Nichols instead of the applicant. He has fallen down in his undertaking to imitate the handwriting of the applicant, by his misspelling the name. We have returned the application to the doctor, and given him to understand that it must be corrected at once; and you are hereby notified that in the future no more examinations will be accepted, when made by Dr. Nichols. We will appoint another physician at that place, and will notify you of the appointment of same. We have no longer any confidence in Dr. Nichols, and, as above stated, we cannot accept any more examinations made by him. Very resp., yours, Chas. Woodhull Eaton, Medical Director."

The Court, after stating defendant's claim that the letter was privileged, instructed as follows:

"And, as to this claim of the said defendant, you are instructed that the said letter or communication, made and published in the manner and under the circumstances under which the same was made and published, was not a privileged communication, and the circumstances under which the same was made and published did not justify the defendant in so making and publishing the same."

It further instructed that the letter was libelous per se, and that the only matter for the jury to consider was the amount of damages.... The action was dismissed as to defendant Eaton, and a verdict and judgment were rendered for plaintiff as against the association, for the sum of $2,300. The association appeals. Reversed.

A. H. Evans, Carr & Parker, and Geo. R. Sanderson, for appellant. Guernsey&Granger, for appellee.

DEEMER, J. [after stating the facts as above]. Claim is made that the instructions are erroneous, for the reason that the letter was conditionally privileged; that is to say, that the occasion was such as to

rebut the presumption of malice arising from the publication, and to cast the burden on plaintiff of proving malice in fact. On the other hand, it is contended that the occasion was not privileged, and that, if privileged, the communication was in excess of the privilege.

...

A communication by a principal to his agent touching the business of the agency is not actionable, without proof that the principal was actuated by malice towards the person to whom the communication relates. . . . Botts, as soliciting agent, was entitled to know who was the accredited medical examiner of the association at the town where he was taking applications. The company also had the right to inform its soliciting agent of the discharge of its medical examiner in the locality where the soliciting agent was operating. The occasion was undoubtedly privileged, and it was the duty of the Court to so instruct the jury.

Appellee says that, conceding the occasion was privileged, defendant went beyond the privilege, and rendered itself liable. This argument presents a question that is new to this Court, and one on which the authorities are in apparent conflict. Decision of the point involves a consideration of the reasons underlying the doctrine of privilege.. Plaintiff relies on some expressions found in the books to the effect that, if the communication exceeds the privilege, it destroys the privilege. Thus Mr. Odger, in his work on Slander and Libel (page 197), says: "But it must be remembered that, although the occasion may be privileged, it is not every communication made on such occasion that is privileged. communication which goes beyond the occasion exceeds the privilege."

...

A

The doctrines announced by Mr. Odgers, some of which are even stronger than we have quoted, have produced some confusion in the authorities; and we think the better rule is that if the occasion is privileged, and the publication is about a matter in which both parties have an interest, excess of statement is material only as bearing on the question of malice. Indeed, the jury may find the existence of malice from the language of the communication itself, as well as from extrinsic evidence. . . . Whether the publication is or is not privileged by reason of the occasion is a question of law, for the judge alone, where there is no dispute as to the circumstances under which it was made. If the judge decides that the occasion was one of qualified or conditional privilege only, the plaintiff must then, if he can, give evidence of actual malice on the part of the defendant. If he does give any evidence, which, as we have said, may be gathered from the publication itself, the question of bona fides becomes one of fact, for the jury. . . .

The instructions given by the trial Court were, for the reason stated, erroneous. . . . For the reasons pointed out the judgment of the District Court is reversed. GRANGER, C. J., not sitting.

903. PUTERBAUGH v. GOLD MEDAL FURNITURE MANUFACTURING COMPANY

ONTARIO COURT OF APPEAL. 1904

7 Ont. L. R. 582

THIS was an appeal from the judgment of the Divisional Court reported 5 O. L. R. 680, and was argued on January 25 and 26, 1904, before Moss, C. J. O., and OSLER, MACLENNAN, GARROW, and MACLAREN, JJ. A. Action for a libel imputing theft contained in a letter written by the defendant Abra, the foreman of the defendant company, in the name of the company, to the plaintiff. The proof of publication was that Abra, having written out a draft of the letter, gave it to a clerk of the defendant company to be copied by a typewriting machine. The clerk did so, stamped the company's name at the foot of the copy, and brought it to Abra, who wrote his name beneath that of the company and gave it back to the clerk to be closed and mailed to the plaintiff. The principal question argued in the appeal was whether the occasion of the publication of the libel to the clerk was a privileged one, so as to make it incumbent upon the plaintiff to give evidence of actual malice. It was also contended that there was no publication.

E. E. A. Du Vernet, for the plaintiff, appellant, relied upon Pullman v. Hill & Co. (1891), 1 Q. B. 524.

...

F. C. Cook, for the defendants, contended that it was not publication for two employees of a corporation, one having the duty to dictate and the other to produce a letter, jointly producing the letter; that methods of doing business in England and here were different, and the use of a stenographer was not so necessary in England; and that, therefore, Pullman v. Hill & Co. did not apply here.

...

April 18. OSLER, J. A. . . . On the questions of publication and privilege the case cannot be distinguished, favorably to the defendants, from that of Pullman v. Hill & Co. (1891), 1 Q. B. 524. There, as here, the defendants were a trading company. The case was approved and distinguished by the same Court in the later case of Boxsius v. Goblet Frères (1894), 1 Q. B. 842. That was an action against a solicitor for a libel contained in a letter sent to the plaintiff which had been dictated by the solicitor to a clerk in his office and then press-copied into the letter book by another clerk. The Court held that there had been publication, but upon a privileged occasion. The communication, had it been made by the solicitor direct to the plaintiff, would have been privileged, and the publication to his clerks was necessary and usual in the discharge of his duty to his client, and was made in the interest of his client. . . . The defendants contend that the publication of the letter by Abra to the typewriter was reasonably

necessary and proper in the ordinary course of business; that Pullman v. Hill & Co. is not a satisfactory decision; that it has been weakened or departed from in the later case of Boxsius v. Goblet Frères; and that we ought not to follow it. The Divisional Court adopted this view in setting aside the verdict and granting a new trial. .

For the principle we go back to the leading case of Toogood v. Spyring (1834) [supra, No. 897]. . . . “If fairly warranted by any reasonable occasion or exigency and honestly made, such communications are protected for the common convenience and welfare of society, and the law has not restricted the right to make them within any narrow limits." . . . The occasion is not one privileged by reason of the existence of any duty, legal or moral, on Abra's part to make the communication to Howitt, or of any interest on Howitt's part to receive it. If privileged at all, it must be because Abra acted in a reasonably necessary and usual manner, and that such publication was not beyond "the extent appropriate to the nature of the occasion." Pullman v. Hill & Co. decides to the contrary of this, and, if with all respect I may say so, I think the decision is entirely satisfactory. Typewriters, human and mechanical, may now perhaps be said to be reasonably necessary and useful for ordinary business purposes; but how in such a case as this can it be said that it was reasonably necessary to employ the typewriter in order to make a defamatory communication unconnected with the ordinary business of the firm? The act complained of by defendants was an isolated one. The only persons interested in sending or seeing the communication and demanding a return of the company's property were the company and Abra, on the one hand, and the plaintiff, on the other. . . . The case has been compared to that of directors of a company employing a printer to print a report intended to be sent to their shareholders, e.g., Lawless v. The Anglo-Egyptian Cotton and Oil Co., L. R. 4 Q. B. 262; or to that of a master making a defamatory statement in the presence of a third person to a servant when discharging him: Taylor v. Hawkins (1851), 16 Q. B. 308; and cases of that class, but all these are easily distinguished. In cases of the former class, printing of the report is practically the only convenient, and therefore necessary, method of communicating it to a body of shareholders, and in the latter it is held to be only safe and prudent, on the part of the master or other person making the verbal defamatory statement, for his own protection to do so in the presence of a third person, especially if such third person be one having an interest in hearing it. None of these considerations apply to such a case as the present. .. On the whole, for the reasons above given, I am of opinion that the case was properly tried, and that the judgment at the trial should be restored.

MACLENNAN and GARROW, JJ. A. concurred.

Moss, C. J. O. I agree that the result of this appeal must be as stated in the judgment of my Brother OSLER. The case seems to be

covered by decision. Indeed, as my learned brother has pointed out, the facts are rather less favorable to the defendants than were the facts to the defendants in Pullman v. Hill & Co. (1891), 1 Q. B. 524. I confess that but for that case and some of the expressions regarding it made by members of the Court in the subsequent case of Boxsius v. Goblet Frères (1894), 1 Q. B. 842, I would have hesitated long before pronouncing against the judgment appealed from. It appears to me that in view of recognized methods of conducting the business affairs of large commercial and manufacturing corporations in this country it would not be unreasonable to hold that where the manager or other officer of such a corporation, within the scope of whose duty falls that of dealing with any matter of concern to the business, dictates a letter on a business matter of the corporation to a stenographer in its employ, who thereupon transcribes it for signature in the ordinary course, such acts ought not to be treated as publication, so as to render the corporation liable to an action for libel for the matter contained in the letter. The stenographer ought not to be regarded as a third person. The communication to him ought to be treated as privileged. . . MCLAREN, J. A., concurred with Moss, C. J. O.

904. ASHCROFT v. HAMMOND

COURT OF APPEALS OF NEW YORK. 1910

197 N. Y. 488, 90 N. E. 1117

APPEAL from Supreme Court, Appellate Division, Second Department. Action by Ralph W. Ashcroft against John Hays Hammond. A judgment of nonsuit was reversed by the Appellate Division (132 App. Div. 3, 116 N. Y. Supp. 362), and defendant appeals. Order of the Appellate Division reversed, and the judgment of the Trial Term affirmed. The action is for libel. The publication complained of is a telegram sent from the defendant to Samuel L. Clemens in negotiations to settle a controversy that had arisen over the affairs of the Plasmon Company. Plasmon is a product of milk obtained by processes protected by patents. The parent company was an English corporation. The Plasmon Company of America was capitalized at 7,500 shares of stock at the par value of $100. . . . The company and its predecessor, the syndicate, seem to have been unfortunate from the beginning. The first manager, a Dr. Cook, left the syndicate in December, 1901, under charges of dishonesty. He was succeeded by one Wright, who became general manager of the company on its incorporation. The plaintiff became assistant manager in June, 1902; secretary and treasurer in December, 1902; manager in May, 1903; auditor, March, 1904; and manager again in June, 1904. In May, 1903, Wright left the service of the company also under charges of