
    No. 7558.
    Aleas Haney vs. Henry Trost.
    In an action for damages for defamation, malic© is the essence of ©lander, and ife must be proved, either by direct testimony or by implication flowing clearly from the language' and conduct of tlie defendant.
    Hence, damages cannot be recovered against a party who informs against an employee of a railroad company, of conduct injurious to the company, of which the informant's wife is a stockholder. Judgment reversed.
    APPEAL from tlie Fourth District Court for the Parish of Orleans. Houston, J.
    
      A. JS. Hillings and B. K. Gutter, for Plaintiff and Appellee :
    1.Evidence in justification cannot ho relied on under the general issue.
    2.When malice is shown to the satisfaction of the jury, the protection attached to privileged communications may not ho availed of. (Townshend on S. and L., p 320, § 209.)
    3.Malice proven, privilege is lost. (Odgers on L. and S. 267.) Bona fides is necessary to protect a communication, as privileged. {Ib.etld.)
    
    
      4,It mala fides was manifest, in the opinion of thejury, on competent testimony, malice has been established. (Starkie on S., pp. 280, 287,288; Dumnan vs. Bigg, Ibid., 2r8,290, 398, n )
    5.Hearsay is probable ground tor belief; but aman must act bona fide on honest belief of the truth of statements made to him by others, whom he believes to be creditable persons, to be justified in acting upon such statements, if he believes there is reasonable and probable cause for his so doing. (Townshend on S. and L., p. 397, § 341, n. 3; Oockburn, O. J., in Ohatfield vs. Oomerford, 4 Fost. and L. 1008.)
    0. Words spoken of plaintiff in the way of his profession or trade are actionable without proof of special damage. (16 E. 389 ; 12 An. 894; Odgers on L. and S., pp. 63, 64, and cases cited, andlb. 16-20, 64, 69, 70.)
    7.Words resulting in damage are actionable. (O. C. 2315.)
    8.Plaintiff having been discharged from his employment, by reason of the effect of the slander of defendant, the subsequent profitable engagement of plaintiff will not abridge the liability of defendant. (16 L. 389; 14 E. 198; 3 An. 69 ; 11 An. 206 ; Townshend on S. and L. p. 293, § L98.)
    9.Punitive damages may be given if thought proper by thejury, without evidence of malice beyond the words. (Odgers on E. and S., p. 292 and n )
    10.A verdict in an action for slander will not be set aside for excessive damages unless thei e be some suspicion of unfair dealing, or unless the case be such as to furnish evidence of prejudice, partiality or corruption on the part of the jury. (Townsheud on S. aud L , p. 492, § 293.
    11.Punitive damages are not measured altogether by the ability of the party to pay. Courts • will not lighty disturb verdicts of this kind.
    12.Falsehood in a statement, in a matter likely to effect injury to another, must he regarded as malicious wrong. Any indirect and wicked motive inducing a defamation is malicious, (i ffigers on E. and S., pp. 266, 267.)
    13. Questions of fraud, and weight of testimony, are peculiarly within the province of the jury, and their verdict will not be disturbed unlebs manifestly en oneous. (21 An *5.82; 22 An. 31; 6 L. 492; Hennen’s Digest, p. 92, b. and authorities.) To determine the facts and the credibility of witnesses is for the jury. (Proffat on Jury Trials, pp. 359, 361.) Where evidence conflicts, the province of the jury is exclusive, (lb. 367, 473; 33 An. 1053.) Thejury is to judge of the weight and sufficiency of the evidence. (Hilliard on Hew Trials, 247, 281; Proffat on Jury Trials, p. 368; 33 An. 1054.)
    
      
      Cotton & Levy, for Defendant aud Appellant:
    Privileged communications defined 3 Howard U. S. It. 266; Odgers on Slander, 197 to 209.
    3?. 263: 'Clio more circumstances of the statement being false, will not suffice to show malice, unless there is some evidence to show that the defendant knew it to be false; the whole evidence shows that defendant acted with the most perfect bona fides and belief. Declarations of defendant concerning plaintiff appear to have been uttered without malice and under circumstances from which no malice is in law implied. Proof of express malice required by law where defendant did not originate report concerning plaintiff', nor repeat it other than in good faith, and onus of proving malice cast on plaintiff. 76 Eng. Com. L. It. Yol. 13, p. 3G0, Harris vs. Thompson ; 71 Eng. Com. L. R. Yol. 16, Taylor vs. Hawking ; Odgers on ¿Hander, p. 268.
   Tlie opinion of tlie Court was delivered by

Pociiá, J.

This is an action in damages for slander. Plaintiff complains that in consequence of a malicious and false statement, made by the defendant to the foreman of the Magazine Street Railroad Company, he was discharged from his employment as car driver for said Company, and avers that he has thereby suffered damages in the sum of five thousand dollars.

■ The answer ivas a general denial, and defendant appeals from a verdict and judgment of one thousand dollars against him.

Tlie charge made against plaintiff was, that he was in the habit of allowiug persons to ride on his car without paying fare, and on the strength of that charge, plaintiff was discharged as car driver.

But the evidence fails to prove that the statement was made by plaintiff with malicious intent, or with any desire to injure plaintiff, either in his reputation or in the matter of his employment.

Malice is the essence of slander, and it must he proved, either by direct testimony or by irresistible implication, from the nature of the language and conduct of the defendant. Boullemet vs. Phillips, 2 Robinson, 365; Gilbrot vs. Palmer, 8 An. 130.

The record shows that defendant, whose wife was a stockholder in the Railroad Company, heard persons boast that tlie car driven by plaintiff was “ a good deadhead car ” for them, and that he thereupon called on the foreman of the Company, and made the charge against the plaintiff, who was thenepliew of defendant’s first wife, and against whom he had no ill-feeling. Without warning or further investigation, the foreman at once discharged tlie driver, informing him of the reasons ■which led to his discharge. It may he that the foreman acted too hastily, and should have watched the driver, or given him some warning, hut defendant surely cannot be held responsible for such haste or apparent unfairness, and it nowhere appears that his purpose was to have plaintiff discharged from his employment.

His wife, being a stockholder in the Company, and directly interested in the proper administration of its affairs, it was defendant’s undoubted right to protect her interests by imparting the information of a damaging- practice entailing loss on the Company and its stockholders, with the manifest intention of bringing about a correction of the abuse. The fact that in making his statement to the foreman, he informed him of the connection of his wife with the Company, is a circumstance which unmistakably explains his conduct, and with other circumstances, satisfies our minds that the charge was made with good motives aud for justifiable ends.

We have searched the record in vain for any evidence tending directly or indirectly to show that in making the report to the Company, the defendant was actuated by malice or ill-will to plaintiff, in particular, or to his fellow-man in general, and hence, he cannot be held in damages for the language charged to him.

Although we should be, and are always, loth to disturb the verdict of a jury in such cases, yet we must do our duty when their finding would work glaring injustice, as would bo the case in the present instance.

Tlie views which we have expressed obviate the necessity of considering other defenses urged in the case.

It is, therefore, ordered, that the verdict of the jury be set aside, and the judgment of the lower court reversed; and that plaintiff’s demand be rejected and his action dismissed, at his costs in both Courts.  