
    Emily Hemmens, formerly Emily Halstead, App’lt, v. Edward B. Nelson, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 20, 1891.)
    
    1. Slander—Privileged communications.
    Defendant, who was the principal of an institution for deaf mutes, complained to the executive committee of the board of trustees that plaintiff, a teacher therein, had sent to his wife an obscene circular, and plaintiff was thereupon discharged. Held, that his communication to the executive committee was a privileged one.
    :2. Same—Direction of verdict.
    On the trial of the action for slander, plaintiff testified from her knowledge of defendant’s handwriting that the circular was sent by him, based on the supposition that the superscription on the envelope was in his handwriting. Defendant denied that he had anything to do with the origin or sending of the envelope or circular, and other witnesses testified that none of the writing was his. Held, that the court did not err in directing a verdict for defendant.
    Appeal from a judgment entered upon a verdict directed at "the Oneida circuit, and from an order denying a motion for a new trial. The action was commenced in May, 1878, and has been tried •at the circuit five times, and has been before this court on three former occasions. See 24 Hun, 395; 36 id, 149 ; 13 N. Y. State Rep., 211. At the trial next preceding the one now here for review, a verdict was rendered for the plaintiff of $500, which ver•dict was, by the trial justice, set aside and an opinion delivered which is reported in 15 N. Y. State Rep., 790. At the trial in March, 1889, at the close of the evidence, the circuit judge directed a verdict for the defendant, and to review that decision this ••appeal is brought. The action was for slander.
    
      Scripture & Baclcus, for app’lt; John D. Hernán, for resp’t.
   Hardin, P. J.

Upon the first appeal, 24 Hun, 398, Smith, J., in speaking for his court said : “ The case falls within the rule that •a communication, made bona fide and without malice upon any .subject matter in reference to which the party communicating has -a duty, is privileged if made to a party having a corresponding duty, although it contain criminatory matter which without this privilege would be slanderous and actionable. Thorn v. Blanchard, 5 Johns., 508; Howard v. Thompson, 21 Wend., 319; Cook v. Hill, 3 Sandf., 341; Harrison v. Bush, 32 Eng. L. & Eq., 173.”

When the case was before us on the second appeal, 36 Hun, 149, Follett, J., in speaking for the court, said: “ When the facts ■and circumstances on which an accusation is made are undisputed, the question of probable cause is a question of law for the •court The plaintiff’s theory was, that defendant sent or procured the communication to be sent for the purpose of accusing the plaintiff and procuring her discharge, and unless this theory was established as a question of fact the defendant was entitled to a verdict. Unless the defendant sent or procured this communication to be sent, we think the defendant had probable cause for .the accusation. This was the judgment of the executive committee, who must be presumed to have been fair-minded men of intelligence, desiring to discharge their duties to the public and persons interested.”

When the case was here on the third appeal, 13 N. Y. State Rep., 214, in the course of the opinion delivered, it was said: “We should have been better satisfied with the course of the trial if the learned judge had said to the jury, as a matter of law, that the defendant had probable cause, and that the communication was privileged, if they found he did not send or cause to be sent the matter, even though they found that the plaintiff did not send or cause the same to be sent.”

Since that decision was made, the court of appeals, in Byam v. Collins, 111 N. Y., 143; 19 N. Y. State Rep., 581, has held, viz.: “ Privileged communications are exceptions to the general rule which implies malice in a libellous publication and infers some damage, it rests with the party claiming- the privilege to show that the cause is brought within the exception. The exception covers cases where a communication is made bona fick upon any subject-paatter in which the party making it has an interest, or in reference to which he has a duty, legal, moral or social, which may fairly be presumed to have led to the communication, when made to a person having a corresponding interest or duty.” And it was further held in that case that when upon the trial it has been held as a matter of law that the communication was privileged “ the burden rests upon the plaintiff to establish that it was maliciously madeand upon the fourth trial of this case it was held at the circuit that whether the charge was maliciously made was a question of fact to be determined by the jury in accordance with the doctrine laid down in Byam v. Collins, supra. After the jury had found a verdict in favor of the plaintiff for $500, a motion for a new trial was made, and the learned judge who presided at the trial granted the motion, and held that the “jury must have misconstrued the evidence or failed to give it its legitimate effect in arriving at the conclusion they did, and that the verdict being clearly against the weight of evidence, it is the duty of the court to set it aside and grant a new trial.” 15 N. Y. State Rep., 790. Upon the trial now brought in review, the trial judge approved of the opinion delivered in deciding the case as appears reported in 15 N. Y. State Rep., 790, and added thereto his own conviction upon the evidence produced, “that the verdict should be directed for the defendant.”

We are inclined upon a full consideration of the evidence now in the appeal book, and in view of the previous decisions in the case, to say that the communication made by the defendant to the executive committee was privileged.

(2) Upon the trial, the plaintiff stated as a witness an opinion based upon her knowledge of the handwriting of the defendant, tending to the conclusion that the envelope and circular were sent by the defendant, based upon the supposition that the superscription and writing were in the handwriting of the defendant. It was conceded upon the trial by the plaintiff “ that none of the writing now on the paper is in Mr. Kelson's handwriting." Considerable evidence was given by witnesses who expressed the ■opinion that none of the writing upon the envelope or circular was in the handwriting of. the defendant, besides his own testimony is fully and forcibly to the effect that he had nothing to do with the origin or sending of the envelope or circular contained therein. After a careful review of the evidence, we are constrained .to say that no error was committed by the trial judge in refusing ■to submit an inquiry to the jury as to whether or no the communication was sent by the defendant.

It may be said there was a scintilla of evidence to establish such .a proposition. We think it appropriate, upon this aspect of the ■case, to apply the rule laid down in Dwight v, Germania Life Ins. Co., 103 N. Y., 343; 3 N. Y. State Rep., 115, where it was held, viz.: “ If the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to the evidence, it is the duty of the court to direct a verdict. It is not .sufficient to authorize a submission of the fact to the jury that there is a scintilla of evidence,’ a mere surmise to the contrary.” And also the rule as stated in the language of Judge Allen in Baulec v. N. Y. & Harlem, R. R. Co., 59 N. Y., 356, that: “ It is not enough to authorize the submission of a question as one of fact to the jury that there is ‘some evidence.’” It was for the trial judge to say, “ not whether there is literally no evidence or a mere scintilla, but whether there is any that ought reasonably to satisfy the jury that the fact sought to be proved is established.” In Improvement Co. v. Munson, 14 Wallace, 442, the rule is stated as follows: “ That in every case, before the evidence is left ■to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it upon whom the onus of proof rests.”

We think the views expressed by Kennedy, J., in 15 N. Y. State Rep., 790, upon the questions now under consideration are quite appropriate and applicable.

We are, therefore, of the opinion that the verdict ought to .stand.

Judgment and order affirmed, with costs.

Merwin, J., concurs; Martin, J., not voting.  