
    Philip J. McDonald, Plaintiff, v. Frank W. Edwards, Defendant.
    (Supreme Court, New York Special Term,
    June, 1897.)
    1. Wrongfully procuring one’s discharge from employment — Slanderous words.
    The complaint in an action alleged that the plaintiff solicited employment from a life insurance company and was thereupon required to furnish security for his good conduct, through a guarantee company; that the guarantee company requiring information as to his habits and character, the plaintiff referred that company to the defendant for information; that in the meantime the insurance company had employed him provisionally; that the defendant, replying to inquiries of the guarantee company, conspired with a third person to injure the plaintiff and deprive him of employment, and falsely and maliciously made to the guarantee company statements concerning the plaintiff, “ accusing him of bad and vicious habits,” and which statements, if true, would render him unfit to occupy any position of responsibility. The plaintiff alleged that because of these statements the guarantee company refused to give the bond, and the insurance company dismissed him from his provisional employment, to his great loss and damage and to the great loss and damage of his reputation and character. Held, that, if the complaint was to be regarded as one in slander, it was demurrable in failing to set out the words which were supposed to constitute the slander.
    2. Same — Proximate cause.
    That, if the complaint proceeded upon the principle that an action would lie against the defendant because he maliciously procured the discharge of the plaintiff, it did not appear that the plaintiff had sustained damage by the wrongful act of the defendant, for, inasmuch as_ the insurance company refused the plaintiff employment because he did not give the bond, and as the guarantee company did not furnish the bond because of the defamatory statements of the defendant, there intervened, between the wrong done by the defendant and the damage received by the plaintiff, the voluntary act of the guarantee company, which act was the proximate cause of the plaintiff’s loss of employment.
    
      3. Slanderous words must appear.
    That, assuming, however, that there was a sufficient connection between the defendant’s statement to the guarantee company and the - plaintiff’s discharge by the insurance company, it was not legally apparent that his statement justified the guarantee company in declining to give the security, and that the plaintiff, therefore, should have set out the words spoken by the defendant, to the end that the court might determine whether the refusal of the guarantee company to give the bond was the result of its own caprice, or was the legitimate effect of the statements of the defendant.
    4. Allegation of conspiracy.
    That the complaint was not strengthened nor reinforced by the allegation of conspiracy.
    5. One referring another to a third person for information as to character.
    
      Quaere as to the effect upon the cause of action, of the fact that the defendant did. not volunteer to the guarantee company his opinion of the plaintiff, but was authorized, and invited by the plaintiff, to communicate that opinion to the company.
    Demurrer to complaint for insufficiency in substance.
    Frederick K. Porter, for plaintiff.
    Lorenzo Semple, for defendant.
   Pryor, J.

In substance these are the essential allegations of the complaint: That the plaintiff, soliciting employment of the Metropolitan Life Insurance Company, was required to furnish security for his good conduct by the United States Guarantee Company; that the guarantee company required information as to his habits and character; that.thereupon he" referred that company to the defendant for such information; that meanwhile the insurance company took plaintiff into its-employment provisionally until the guarantee company should furnish the requisite security; that, in reply to inquiries by the guarantee company, the defendant, conspiring with one- Moser to injure the plaintiff and to deprive him of "employment by the insurance company, falsely- and maliciously made to said company divers statements concerning plaintiff, “ accusing him of bad and vicious habits,” statements which, if true, would render him- unfit to occupy any position of responsibility; that by reason of said statements the guarantee company refused to give the bond for plaintiff’s good conduct; that thereupon the insurance company dismissed the plaintiff from the provisional employment, ■“ to his great loss and damage and to the great loss and. damage of his reputation and character, in the sum of $10,000.”

If, as the defendant insists, the action be for defamation, the complaint is clearly bad; because not setting forth the words supposed to constitute the slander. Germ Proof, etc., Co. v. Pasteur, etc., Co., 81 Hun, 49; Townshend on Slander and Libel, § 329. But, whatever the pleader’s theory of action, a demurrer cannot prevail if the complaint exhibit.a wrong entitling to any relief. Johnson v. Girdwood, 7 Misc. Rep. 651, affirmed in 143 N. Y. 660.

Under certain conditions an action lies for procuring a third person to break his contract with the plaintiff. Lumley v. Gye, 2 E. & B. 114; Bowen v. Hall, 6 Q. B. Div. 333; Walker v. Oronin, 107 Mass. 555. Here was no contract of employment by the insurance company; such contract being reserved to abide the event of plaintiff’s application for security. But the inference from the complaint is that, had the surety been furnished, the insurance company would have made a contract for the services of the plaintiff;, and this fact, by the law of New York, is sufficient. Rice v. Manley, 66 N. Y. 82; Benton v. Pratt, 2 Wend. 385.

The conditions indispensable to the maintenance of the action, are malice on the part of the defendant and special damage to the plaintiff. Gases supra. That the defendant maliciously procured, the discharge of the plaintiff is an express averment of the complaint; but that the plaintiff has sustained damage by the wrongful act of the defendant is not apparent. The insurance company refused employment to the plaintiff because he did not give the bond; and the guarantee company did not furnish the bond because of' defendant’s defamatory statements. Hence, between the wrong of" the defendant and the damage to the plaintiff, the voluntary act of" a third party intervened; and that act was the proximate cause of" plaintiff’s loss of employment. ■ The insurance company did not discharge plaintiff because of defendant’s slander — non liquetthat the company knew of the slander — but because of the failure-of the guarantee company to supply the security. In Vicars v. Wilcocks, 8 East, 1, employment was refused plaintiff not merely because of defendant’s defamation, but also because of plaintiff’s., discharge by his master; and while the former cause may havebeeu sufficiently proximate (Lynch v. Knight, 9 H. L. C. 577), by-all authorities the defendant was not responsible for the conse- . quence of the intervening act of the master. 2 Smith’s Leading Cases, note p. 485, 7th Am. ed.

Assuming, however, a sufficient connection between defendant’s statement to the guarantee company, and plaintiff’s discharge by the insurance company, it' is not legally apparent that the statement was such as to' justify the guarantee company in declining to give the security.. Beyond doubt if the statement by defendant did not impute to plaintiff an untrustworthy character, defendant is not responsible for the arbitrary or' unreasonable refusal of the guarantee company. But we have only the plaintiff’s conclusion that the statement was defamatory; and such conclusion is not admitted by the demurrer. Bogardus v. Ins. Co., 101 N. Y. 328. He should have pleaded the words spoken by. the defendant, in' order that, the court might determine whether.the refusal of the bond by the guarantee company was its own caprice or the legitimate effect of defendant’s statement. Wildee v. McKee, 111 Penn. St. 335; 56 Am. Rep. 271, cited by plaintiff to the contrary,v is an authority rather for the proposition, since there the identical-words of defamation appear in the pleading.

In a significant circumstance the present case is distinguished from all others of a like character; namely, that the defendant did not volunteer his opinion of the plaintiff -to the guarantee company, but was authorized and, indeed, invited by-the plaintiff to communicate the opinion. If the allegation of malice takes away from the communication the privilege that otherwise would attach tó it, still it is a novel and interesting question whether the plaintiff may found an action on a' statement which but for his request would never have'been made.

■The complaint is insufficient in substance, and is not reinforced by the allegation of conspiracy. Hutchins v. Hutchins, -7 Hill, 104.

Demurrer sustained. •  