
    GRENVILLE P. CLAPP, Plaintiff and Appellant, v. JOHN E. DEVLIN, Defendant and Respondent.
    I. Slakdbb.
    1. Privileged communication, principle concerning.
    
    1. Words used by one in the conduct of his own affairs, where his interest is concerned, and in reference to that interest, are privileged.
    1. Application of principle.
    
    Where one to whom a cargo was consigned, claimed that a part of it had not been delivered, and at interviews with those representing the vessel, respecting payment of the freight, declined to pay the full amount, stating that the captain had robbed the cargo, and he could prove it, the communication is privileged.
    2. Recovery, when, although a communicatioh is privileged.
    
    1. If the defendant did not speak in good faith, believing the statement to be true, and was chargeable with express malice, the plaintiff can recover.
    1. This question of good faith, etc., must be submitted to the jury, although there is no specific evidence concerning it outside of the train of facts put in evidence in connection with the uttering of the alleged slander.
    2. Malice, express, evidence of.
    
    The fact that defendant had repeatedly used the words complained of concerning the plaintiff, is evidence of express malice.
    3. Words.—Sense in which used, sometimes proper question for a jury.
    
    Although the words complained of are evidently not used technically, yet, under some circumstances, it should be left to the jury to determine what the defendant meant.
    1. This principle applied.
    Before Monell, Curtis, and Sedgwick, JJ.
    
      Decided November 30, 1872.
    This is an action for slander. The complaint alleged that defendant, on the-20th March, 1867, said of plaintiff, “ These nnts ” (being of the cargo of the bark Ellen Dyer, whereof plaintiff was master) “were short; the “captain robbed the cargo, and I can prove it—I mean “ Captain Clapp.” And again on 26th March, said, “Captain Clapp and officers robbed the cargo, and I “can prove it.”
    The answer was: General denial, except as admitted or avoided ; that a controversy arose between the master and the owners of the bark and the defendant, as to the right delivery of cargo owned by and consigned to defendant; that the delivery was short; that defendant was informed, and believed it had been wrongfully taken. In such controversy, and alluding to the short delivery, defendant said, “ Cargo is short; it is no better “than robbery—I consider it no better than robbery.”
    That the words were not spoken publicly, but in defendant’s counting-room to plaintiff and the owners or agents of the bark, and only in regard to the abstraction and short delivery and the freight moneys demanded.
    The issue came on to be tried before the court and a jury. On the trial the following matters, with others, appeared:
    The plaintiff was master of the bark Ellen Dyer, on her voyage from Malaga to New York, about November, 1866. The vessel was chartered by defendant for that voyage, and had a cargo of raisins, almonds, and grapes consigned to the defendant. H. D. and J. U. Brook-man represented the vessel and her owners. On the bark’s arrival at this port, her cargo was discharged, and thereafter J. IT. Brookman called on defendant to settle the charter party. When he first called, defendant claimed that the cargo was short, and said he wanted to look into it. After this, and after the plaintiff had sailed from the port, defendant, at various interviews with J. IT. Brookman in relation to the settlement of the charter party, stated that Captain Clapp had robbed the almonds. Mr. Brookman said, “Mr. Devlin, do you mean to say that Captain Clapp robbed the almonds ? ” To which Devlin replied, ‘ ‘ I mean to say that Captain Clapp robbed the almonds, and I can prove it.” And finally, when J. TJ. Brookman settled the freight, he took the bill, on which there was a statement that the cargo was robbed, and passing it to the defendant, said: “ Mr. Devlin, is that true ? Did Captain Clapp rob that cargo?” The defendant replied, “ He did; and I can prove it.” On another occasion, Henry -D. Brookman called on defendant for the purpose of bringing about a settlement, and defendant said to Mm that the captain had robbed or stolen the cargo, and declined to pay unless his claimed deduction was made. Mr. Henry D. Brookman then said to Mm, “ Mr. Devlin, I would not like to make a charge of that kind against him.” To which defendant answered, “ I c,an prove it.”
    After the plaintiff had rested, defendant’s counsel moved that the complaint be dismissed, which motion was granted.by the court, and an exception taken by plaintiff’s counsel.
    Thereafter judgment was entered, dismissing the complaint, and adjudging that defendant recover his costs of and against plaintiff.
    From this judgment plaintiff appealed to the General Term.
    
      Goodrich & Wheeler, attorneys, and W. W. Goodrich, of counsel for appellant.
    
      A. J. Heath, attorney, and Luther R. Marsh, of counsel for respondent.
   By the Court.-—Sedgwick, J.

The words, “I mean to say that Captain Clapp ” (the plaintiff) “ robbed the almonds, and I can prove it,” were used by the defendant in the conduct of his own affairs, where his interest was concerned, and in reference to his interest. They therefore formed a privileged commumcation (Klinck v. Colby, 46 N. Y. R. 433). This was matter of law for the court to decide (Id. 431).

To maintain this action, the plaintiff had to offer some evidence of the existence of malice, beyond the mere falsity of the charge (Lewis v. Chapman, 16 N. Y. R. 373).

The Court of Appeals holds, that, after the court has determined the communication to be privileged, “the question of good faith, belief in the truth of the statement, and the existence of actual value, remains,” and this question is one for the jury (Klinck v. Colby, 46 N. Y. R. p. 431; Lewis v. Chapman, 16 N. Y. R. 375).

The present case does not call for a consideration of whether the plaintiff may rely upon the presumption of innocence, as sufficient on his part to show the falsity of the charge. He gave affirmative testimony as to the falsity of the charge. If the presumption of innocence is not sufficient to take the case to the jury on the point of the falsity of the charge, and there is no testimony offered by the plaintiff as to his innocence, it may be that the court should treat it in the manner that matters of fact in general are treated, as to which no evidence has been offered.

Beyond this, it is clear, under the cases cited, the court must call on the jury to say whether it has been shown that the defendant was actuated by express malice in his use of the words. The court cannot decide this as matter of law against a plaintiff. This is true, if no specific evidence of malice is given, outside of the train of facts put in evidence, in connection with the uttering of the alleged slander. The plaintiff in the present case did give some such specific evidence, when his witnesses testified that the defendant had repeatedly used the words concerning the plaintiff (Root v. Loundes, 6 Hill, 519).

Therefore the court should have allowed the case to go to the jury, on the question of the good faith of the defendant, his belief in the truth of the statement, and the existence of actual malice.

The instruction to the jury would have been that they must find for the defendant, unless the evidence showed that he did not speak in good faith, believing the statement to be true, and that he was chargeable with express malice.

I think the complaint was erroneously dismissed.

The respondent takes the ground, that as the word “robbed” could not have had its technical meaning in the mouth of the defendant, the court may have held that when considered in connection with the business settlement in the course of which it was used, it was intended to only mean and refer to the claim made by the defendant, that the cargo was short, or that the whole of it had not been delivered as required by the bill of lading ; and therefore that the word was not slanderous.

This cannot be sustained. If the word evidently was not used technically, then, in a state of facts like the present, the jury should have been asked to fix what the defendant did mean by it.

At any rate, it is not clear that the defendant meant only to say that the plaintiff was responsible for the cargo being short.

The judgment should be set aside, and a new trial had, with costs to the appellant to abide the event.  