
    PAYNE v. ROUSS.
    (Supreme Court, Appellate Division, Second Department.
    December 19, 1899.)
    1. Libel—Words not Libelous Per Se—Question eor Jury.
    Where words are not libelous per se, it is tor the jury to determine in what sense they were uttered and understood.
    2. Same—Libelous Letter—Questions eor Jury.
    Though a libelous letter may be held by the court to be prima facie privileged, the writer’s good faith and the existence of actual malice are questions for the jury.
    3. Same—Privileged Communications.
    Where the defendant wrote a letter to one on whose recommendation he had employed plaintiff to manage a store to give him to understand that he was mistaken in his recommendation, and that plaintiff was unworthy of confidence, a communication of the fact that plaintiff had “questionable connections” in the place where he was employed was not privileged, conceding that it may have been proper to have called attention to plaintiff’s business delinquencies.
    4. Same—Punitive Damages.
    A libel recklessly or carelessly published, as well as one induced by personal ill will, will support an award of punitive damages.
    5. Same—Excessive Judgment.
    A judgment for $5,000 for writing a libelous letter charging plaintiff with dishonesty and moral delinquency is not excessive.
    
      Appeal from trial term, Kings county.
    Action by A. Parke Payne against Charles Broadway.Rouss. There was a judgment for plaintiff, and defendant appeals. Affirmed.
    Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.
    Demetrius F. Myers, for appellant.
    Thomas C. Whitlock, for respondent.
   WOODWARD, J.

This is an action for libel. The plaintiff, a young man 25. years of age, entered the employ of the defendant in a wholesale store in the city of New York, and was afterwards sent to- . Pittston, Pa., to take the management of' a branch store, under a contract which permitted the plaintiff to become the owner of the store upon paying for the goods in the manner agreed upon. Plaintiff went to Pittston in February, and left that place in June, of 1898, to accept a position in New York. The matter complained of as libelous is to be found in the following letter:

“W. W. Waddell, Charlottesville, Va.: Under date of February 3rd you. sent us a letter recommending A. P. Payne as being worthy of confidence and "entitled to a position of manager of one. of our stores. We gave him a position, and as a result lost $2,000 by him. Investigation of his actions during the time he was in charge of our business showed that he spent a greater part of his time playing- pool, and that he had questionable connections in the-suburbs of Pittston, where qur store was. We mention these facts that you may know the true character of the man, and will be glad to have you tell us-where he can be found at present, if you know, or whether his people are in your vicinity, and if you know there would be any chance of recovering any part of the amount lost by him.
“Tours respectfully, C. B. Bo-uss.”

It is difficult to see how any fairly intelligent man could read this-letter without coming to the conclusion that the defendant intended that Mr. -Waddell, who had recommended the plaintiff as being worthy of confidence, should understand that he had been" mistaken in the mou, and that he was not only unworthy of confidence, but that he was dishonest and morally delinquent. Conceding, however, that some other conclusion could be arrived at, and that the words were not libelous as a matter of law, it was certainly for the jury to 'deter mine in what sense they were uttered and understood. Hayes v. Ball, 72 N. Y. 422; Garby v. Bennett, 40 App. Div. 163, 57 N. Y. Supp. 853. . The defendant urges that he has a lawful excuse; that the letter was a privileged communication, and that it was, therefore, necessary for the plaintiff to show express malice. The question, it seems to us, was one for the jury, under the evidence in this case. The court- may determine whether the subject-matter to which the alleged libel relates, the interest in it .of the defendant, or his relations to it, are such as to furnish the excuse. But the questions, of good faith, belief in the truth of the statement, and the existence of actual malice remain, although the court should hold that prima facie the communication was privileged. And these .questions are for the jury. Klinck v. Colby, 46 N. Y. 427, and authorities cited. Theuis clearly nothing in the letter from which the court would be justified in saying that the defendant was privileged, as a matter of law, to tell Mr. Waddell of the plaintiff’s alleged “questionable connections in the suburbs of Pittston.” It is a matter of common knowledge that men who have “questionable connections” in various localities are yet “worthy of confidence” in the transaction of mercantile pursuits, and this matter does not seem to have had any proper place in the communication, conceding it to have been proper for the defendant, if the facts stated were based upon information which he had a right to believe to be true, to have called the attention of Mr. Waddell to the alleged business delinquencies of. the plaintiff in an effort to protect himself against loss. The evidence on the trial was such that the jury had a right to believe that the letter was not written in good faith, or, if it was, that there was such a reckless disregard of the ordinary means of gathering information on which to base charges of a serious character that, the defendant has no right to claim immunity for his acts. The jury has evidently reached this conclusion in arriving at its verdict, and we find no reason to disturb that finding. See Smith v. Matthews, 152 N. Y. 152, 46 N. E. 164.

As the alleged errors of the court in its charge to the jury are based largely upon the proposition that the communication was privileged, these fall with the conclusion which we have reached in respect to that question, and we do not find merit in the others which are urged upon our attention. It is a sufficient answer to the proposition that the court erred in charging that the jury might award punitive damages to say, in the language of the court in Smith v. Matthews, supra, that “it has been repeatedly held in this state that a libel recklessly or carelessly published, as well as one induced by personal ill will, will support an award of punitive damages.”

That the award of $5,000 is not excessive, under the facts in this case, sufficiently appears, and the judgment appealed from should be affirmed, with costs. All concur.  