and as to each, without the other, there might be no suspicion of malice; yet, from a consideration of all the communications, each without malice in itself, a jury might be permitted to find malice in every one. In support of this ruling of the superior court the plaintiff has cited but one authoriDavis v. Starrett, 97 Me. 574, 55 Atl. We have been able to find no other. the defendant, the plaintiff further relies well happen that the necessities of her poupon two so-called repetitions of the lan-sition and the prosecution of her proper inguage complained of. The first of these was vestigation might force this defendant into at the home of the defendant's attorney, in three or four or a greater number of privithe course of an interview, and during leged conferences similar to that held with the time that the defendant, Mrs. Grieve, | Mrs. Grieve and Mrs. Lake. Each would be and Mrs. Lake alone were present. This privileged, the communications made at each meeting was also held at the request of Mrs. | would be presumed to be made in good faith, Grieve and Mrs. Lake, that they might obtain further information in regard to the matter discussed at the previous conference. The testimony as to what occurred at this meeting does not show any repetition of the statements previously made. The conversation related to the desire of the other won-en to obtain the names of the defendant's in- ty. formants. This the defendant was unwilling | 516. to divulge, on the ground, as she says, that The case of Davis v. Starrett has been rethe information was given to her in confi-ferred to in text-books and other cases as dence, because of her position as President an authority for the principle that the repeof the State Federation, and she was not tition upon a privileged occasion of words at liberty to furnish the information sought. spoken at a previous privileged occasion may The second of these so-called repetitions be shown in evidence upon the question of was made at a meeting of the Providence express malice in the defendant in his utMothers' Club held in the Mathewson Street terances at the first privileged occasion. Church. This was a special meeting of the Certain language of the Maine court in club, called by the plaintiff herself, by vir- the opinion seems to warrant that view, but tue of her office of president, for the pur- other observations of the court in the depose of discussing the statements of the velopment of its argument appear to modify defendant regarding the plaintiff made at the broader general statement. The court the first interview hereinbefore referred to. says: “It is easily apparent that slanderous By direction of the plaintiff a special invi- words, otherwise privileged, may be uttered tation to be present at this meeting was sent in such a spirit or under such circumstances to the defendant, and in response to that in- as to indicate that they themselves are the vitation the defendant attended the meeting. product of a hostile or malevolent disposiIt does not appear from the testimony that tion. If so, they certainly would have a any persons were present except members tendency to show that in uttering some othof the club. At this meeting the plaintiff er, but similar, slander, the speaker was made a statement in regard to her conduct moved by the same disposition." There will and called upon the defendant to reply. The be no dissent from that proposition. If it defendant then read a statement in defense appears that words are uttered upon a priviof her words spoken at the first interview leged occasion in a malicious spirit, the with Mrs. Grieve and Mrs. Lake. As to speaker forfeits the privilege, the presumpneither the interview at the home of said at- tion of good faith is rebutted, as to him the torney nor the meeting in said church does occasion ceases to be a privileged one, and any intrinsic or extrinsic evidence of malice his slanderous words may be used to show towards the plaintiff appear in the defend- a malicious motive in his utterances upon a ant's language or conduct. These are also previous privileged occasion. That seems to clearly occasions of qualified privilege. Tes-be the true intent of Davis v. Starrett. We timony as to what took place at these two find the better reason and ample authority meetings was admitted by the justice at in favor of the rule that "privileged comthe trial against the objections of the de- munications, which cannot themselves form fendant. Exceptions to said rulings are included in the bill of exceptions. the basis for an action of slander, are not admissible for the purpose of showing malice, in other communications." Shinglemeyer v. Wright, 124 Mich, 230, 82 N. W. 887, 50 L. R. A. 129; Watson v. Moore, 2 Cush. (Mass.) 133; McLaughlin v. Charles, 60 Hun, 239, 14 N. Y. Supp. 608; Thompson v. McCready, 194 Pa. 32, 45 Atl. 78; Lauder v. Jones, 13 N. D. 525, 101 N. W. 907. The justice presiding at the trial permitted this testimony to go to the jury on the ground “that repetition of the original statement, as bearing on the question of the attitude of the person making it, bears on the question of malice," and later in his charge the said justice so instructed the jury. In these rulings and instructions the learned We are of the opinion that there was no justice was in error. This ruling permits evidence of malice which justified the subthe presumption of good faith, which attach- mission of the case to the jury. The excepes to the original statement, to be destroyed tion to the refusal of the justice presiding by another statement, to which the presump- to direct a verdict for the defendant is sus Opportunity will be given to the plaintiff } on December 2, 1912, to show cause why the case should not be transmitted to the superior court, with direction to enter judgment for the defendant for costs. (34 R. I. 538) FOXWELL v. SULLIVAN, Town Treasurer. 1. MUNICIPAL CORPORATIONS (§ 816*) [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $S 1711-1716, 1718, 1720, 1723; Dec. Dig. § 816.*] 2. MUNICIPAL CORPORATIONS (§ 812*)-TORTS -NOTICE OF INJURY-SUFFICIENCY. A notice of injury to a town from falling over the cap of a water pipe stated that on the easterly sidewalk of B. street, at a point about 10 feet south of the southwesterly corner of a certain building on such street, and directly opposite the intersection of the northerly sidewalk of Elm street with the westerly side of said B. street, there was in said sidewalk a water cap which projected above the level of the sidewalk. In the locality of the accident, two streets ran at right angles with B. street, namely. Elm street and Eli street, Elm street being 350 feet south of Eli street; but there were no houses or water caps opposite its intersection with B. street, while on the easterly side of B. street, near its intersection with Eli street, from 11 to 13 feet south of the southwesterly corner of the building on B. street referred to, there was a water cap. Held, that it was apparent that the place of the injury was near the intersection of Eli street with B. street, instead of at the intersection of Elm street, as stated in the notice, and the notice was sufficient. VINCENT, J. This is an action of trespass on the case for negligence to recover damages for injuries which the plaintiff claims that he suffered by falling over the cap of a water pipe which extended above the east sidewalk of Broad street in the town of Cumberland. At the close of the testimony a verdict for the defendant was directed by the superior court, on the ground that the notice to the town, required by statute as a condition precedent to the commencement of a suit, was insufficient or defective. To this direction of a verdict the plaintiff took an exception. The plaintiff also took exception to the ruling of the trial court upon the admission of certain testimony. On these exceptions of the plaintiff the case is now before this court. The plaintiff, on the 5th day of April, 1911, gave a written notice to the town, as provided in section 16, c. 36, Gen. Laws 1896. The plaintiff, having apparently discovered later that this notice was defective, in that it failed to properly describe the place of the accident, gave a second notice in writing to the town on the 4th day of May, 1911. It is undisputed that both of these notices were given within the period limited by the statute. [1] The plaintiff in his declaration sets up the second notice, without making any reference to the first one. We think that it is quite evident that he intended to abandon the first notice, and his intention to do so is sufficiently evidenced by the fact that he declared only upon the other. Had he relied wholly upon the first notice at the trial, after having declared only upon the second, he could not have maintained his suit. It was not, perhaps, necessary to set up the notice in the declaration; but having done so, and having set up the second notice [Ed. Note.-For other cases, see Municipal alone, the first notice should have been conCorporations, Cent. Dig. §§ 1696-1707; Dec.sidered as abandoned, and the evidence ofDig. § 812.*] 3. MUNICIPAL CORPORATIONS (§ 812*)-TORTS -NOTICE OF INJURIES. A town is entitled to such notice of the place where a personal injury was received on its streets as to inform its officers with reasonable certainty of the time and place of such injury and the character of the defect which caused it; but every error in the description is not fatal to the validity of a notice. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1696-1707; Dec. Dig. § 812.*] Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge. Action by Ernest Foxwell against John C. Sullivan, Town Treasurer. Verdict directed for defendant, and plaintiff excepts. Exceptions sustained, and case remitted, with directions for new trial. John J. Fitzgerald and Patrick E. Dillon, both of Providence, for plaintiff. Quinn & Kernan, of Providence, for defendant. fered relating to it should have been eliminated from the consideration of the case. [2] The defendant contends, further, however, that the second notice is inherently defective and insufficient, in that it fails to properly describe the place of the accident, and upon that ground a verdict for the defendant was directed. The notice is as follows: "To the Honorable the Town Council of the Town of Cumberland: Respectfully represents Ernest Foxwell, of Valley Fails, in said town of Cumberland, that on Sunday, March 26, A. D. 1911, he was walking along the easterly sidewalk on Broad street. a public highway of said town; that on the said easterly sidewalk of said Broad street, a public highway of said town, at a point about 10 feet south of the southwesterly corner of the building numbered 263 on said Broad street, and directly opposite the Interception [intersection] of the northerly sidewalk of Elm street with the westerly side of said Broad street, there was an obstruc tion dangerous to travelers in this, that inadvertence in the preparation of the nothere was in said sidewalk a certain water tice "Elm street" was substituted for "Eli cap which projected above the level of the street." sidewalk about an inch and a half, of which defect said town of Cumberland had reasonable notice, or might have had reasonable notice by the exercise of proper care and diligence on its part; that your said petitioner, Ernest Foxwell, while in the exercise of due and reasonable care, struck with his foot said obstruction, and was thereby thrown to the sidewalk with great force and violence; that by reason of being thrown in this manner, through the defect and obstruction in said sidewalk, said claimant's knee and back were injured; that said injury to claimant's knee is a traumatic synovitis of the knee joint; that the injuries thus received are permanent, and said claimant is now confined to his bed under the care of a doctor; that he has been rendered absolutely unable to follow his usual employment, and has been and will be put to great expense for doctor's bills, medicine, care, and attendance; that his damages in all amount to the sum of four thousand ($4,000) dollars, for which sum he now presents his claim to this honorable body and requests that the same be allowed. Ernest Foxwell, by His Attorney, P. E. Dillon." The portion of the notice referred to as insufficiently describing the place of the accident is "that on the said easterly sidewalk of said Broad street, a public highway of said town, at a point about 10 feet south of the southwesterly corner of the building numbered 263 on said Broad street, and directly opposite the intersection of the northerly sidewalk of Elm street with the westerly side of said Broad street, there was an obstruction dangerous to travelers in this, that there was in said sidewalk a certain water cap which projected above the level of the sidewalk about an inch and a half." It appears that in the general locality where this accident is supposed to have occurred there are two streets running at right angles with Broad street, viz., Elm street and Eli street. Elm street is some 350 feet south of Eli street, and opposite its intersection with Broad street there are no houses, and consequently no water gates or caps. It is vacant land. There are no water gates or caps within 200 feet of such intersection. On the easterly side of Broad street, near the intersection of Eli street, from 11 to 13 feet south of the southwesterly corner of the house numbered 263 on said Broad street, otherwise referred to as the "Keefe" house, there is a water cap or gate, and there is no other water cap on the easterly side of Broad street so located that it could be confused with the one referred to in the notice as "about 10 feet south of the southwesterly corner of the building numbered 263 on Broad street." It is quite apparent from these facts that through some [3] The town is entitled to such notice as would inform its officers with reasonable certainty as to the time and place of the injury, and as to the character and nature of the defect which caused it, so as to aid them in their investigation of the question of liability. It is not every error, however, that amounts to a substantial defect sufficient to invalidate the notice. Perry v. Sheldon, 30 R. I. 426, 75 Atl. 690. The error or defect must be one through which the notice fails to convey to the town the information required by the statute with reasonable certainty. If, on the other hand, the notice is sufficient, notwithstanding the defect, to apprise the officers of the town with reasonable certainty as to the time, place, etc., of the accident, it must be held to be a good and valid notice. In the case at bar the notice first described the place of the accident as the easterly sidewalk of Broad street, about 10 feet south of the southwesterly corner of the building numbered 263 on said Broad street. Had the plaintiff stopped there, no question could have arisen, as that description of the place was definite and sufficient; but he continued on, adding the words "and directly opposite the intersection of the northerly sidewalk of Elm street with the westerly side of said Broad street." The addition was erroneous, as Elm street is some 350 feet south. If we take into consideration the accuracy with which the notice first describes the place, together with the fact that at the intersection of Elm street there is only a vacant lot, and no water gates or caps whatever, it at once becomes apparent that the place of the injury was at or near the intersection of Eli street, about 10 feet south of the southwesterly corner of the building numbered 263 on Broad street, and that the town was advised thereof with reasonable certainty. The plaintiff's exceptions are sustained, and the case is remitted to the superior court, with direction to grant the plaintiff a new trial. action for injuries to an employé, and the note | amount of the said judgment and costs the was discounted at a bank and the proceeds paid casualty company was under no obligation to satisfy the judgment. Held, that the payment to satisfy the judgment for the employe's to pay anything to its insured. injuries was sufficient, though not in money, so that the employer could recover over against the insurance company on the policy. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1298; Dec. Dig. § 514.*] Case certified from Superior Court, Providence and Bristol Counties. The case comes before the court on certification of the superior court, under the provisions of section 4, c. 298, of the General Laws of 1909, upon the following agreed statement of facts. "(1) That the defendant issued to the plaintiff the policy of insurance, as set forth "(2) That the accident to John E. Whip Action by the Herbo-Phosa Company in the declaration. against the Philadelphia Casualty Company. Case certified from superior court. Deci-ple happened as set forth in the declaration, sion for plaintiff, and case remitted to supe- and was covered by the policy. rior court for entry of judgment for plaintiff. "(3) That Ann E. Congdon, administratrix of said John E. Whipple, by Lewis A. Waterman, attorney, brought suit against the plaintiff in the case at bar on account of said accident, as set forth in the declaration, and recovered judgment therein against said plaintiff in the case at bar on the 6th day of May, 1911, as of April 4th, 1911, for the sum of twenty-five hundred ($2,500) dollars damages and forty-eight dollars and ninety-five cents ($48.95) costs. That execution upon said judgment was issued from the superior court on the 9th day of May. 1911. for the sum of twenty-five hundred and forty-eight dollars and ninety-five cents ($2.548.95) judgment and costs, together with fifteen dollars and twenty-nine cents ($15.29) interest thereon, amounting in the whole to two thousand five hundred and sixty-four dollars and twenty-four cents ($2,564.24). "(4) That said execution was returned to the superior court on February 17, 1912. with the following indorsement thereon: Having received full payment and satisfaction of the within execution the same is hereby canceled and discharged. Providence, May 17, 1911. Waterman, Curran & Hunt, Plaintiff's Attorneys.' Ann E. Congdon, administratrix upon the estate of her father, John E. Whipple, brought a suit against the Herbo-Phosa Company to recover damages for the death of said Whipple, which, as alleged, was brought about by the negligence of said company, or its predecessor, the Modox Company. The Herbo-Phosa Company was insured against accident in the defendant casualty company. The casualty company having refused or failed to assume the defense of the Whipple suit, the same was defended by the Herbo-Phosa Company. The "(5) That on the 17th day of May, 1911. plaintiff in the Whipple suit recovered a the Herbo-Phosa Company gave to the Westjudgment for the sum of $2,548.95 damages minster Bank of Providence, Rhode Island. and costs. Later the Herbo-Phosa Com- the note of said Herbo-Phosa Company for pany, claiming that it had paid the amount two thousand five hundred and sixty-four of this judgment and costs, and that it had, dollars and twenty-four cents ($2.564.26), been put to other and further expense in the payable six (6) months after date, of which defense thereof, requested reimbursement the following is a copy: $2564.24. from the defendant casualty company for dence, R. I. May 17. 1911. Six months the losses thus sustained, in accordance with after date, with interest at the rate of 5% the terms of the policy contract. The de- per cent. per annum, for value received we fendant casualty company refused to com- promise to pay to Westminster Bank, or orply with this request of the plaintiff, on the der at said bank, in the city of Providence ground that the latter had not actually suf- twenty-five hundred sixty-four 24/100 dolfered any loss, and that its pretended pay- lars, having deposited herewith and pledged ment of the Judgment and costs aforesaid as collateral security for the payment herewas nothing more than a mere subterfuge of Certif. of Deposit Westminster Bank No. designed, in collusion with other parties in 814, with authority to sell the same, or any interest. for the purpose of enabling the part thereof, or any collaterals substituted Herbo-Phosa Company to avoid the terms for or added to the above, without notice, of the policy providing only for indemnity either at public or private sale or otheragainst actual loss, and therefore that until wise, at the option, of the holder, on the there had been a bona fide payment of the nonperformance of this promise. the said Provi "(7) That the Lewis A. Waterman last mentioned is the same person who is hereinbefore described as attorney for Ann E. Congdon, administratrix, in said case against the Herbo-Phosa Company, and is also one of the attorneys for the plaintiff in the case at bar. holder applying the net proceeds to the transaction with said bank was entered uppayment of this note and accounting to on to furnish security for the payment of for the surplus, if any; and said note. That all the above described in it is hereby agreed that such surplus, or this paragraph occurred at one and the any excess of collaterals upon this note, same visit of the parties aforesaid at said shall be applicable to any other note or Westminster Bank on the 17th day of May, claim against ............ held by said 1911. holder, whether now due or to become due, "(6) That at the time of the transactions or hereafter to be contracted. Should the described in paragraph 5 above the financial market value of any security pledged for condition of the Herbo-Phosa Company was this loan, in the judgment of the holder not such as to enable it to meet immediatethereof, decline, .... hereby agree to de- ly all its due financial obligations. That it posit on demand (which may be made by did not have the money to pay said judg a notice in writing sent by mail or oth-ment, and that its credit was not such as erwise to .... residence or place of busi- to enable it to borrow money without seness) additional collateral, so that the mar-] curity. ket value shall always be at least per cent. more than the amount of this note; and failing to deposit such additional security, this note shall be deemed to be due and payable forthwith, anything herein expressed to the contrary notwithstanding, and the holder or holders hereof may immediately reimburse themselves by the sale of the security, or any part thereof; and it is hereby agreed that the holder or holders of this note, or any person in his or their behalf, may purchase at any such sale discharged from any right of redemption. Authority is hereby given to use, transfer or hypothecate any of the collaterals hereby pledged at holder's option, said holder being required, on tender of the amount loaned and interest, to return an equal quantity of said collateral and not the specific collateral hypothecated. HerboPhosa Co., James S. Barry, Pres. & Mgr. Byron A. Remington, Treas.' That thereup- "(9) That at the maturity of said note the on the Herbo-Phosa Company received from Herbo-Phosa Company gave to the Westminthe Westminster Bank a cashier's check of ster Bank a renewal note, payable six (6) said bank for two thousand five hundred months after date, for the same amount upand sixty-four dollars and twenty-four cents on the same security and containing in all ($2,564.24), payable to the Herbo-Phosa Com- other respects the same terms and condipany. That thereupon the Herbo-Phosations and upon the same terms and condiCompany indorsed said check in blank and delivered same to Lewis A. Waterman, as attorney for said Ann E. Congdon, administratrix of John E. Whipple, and the same was received by said Lewis A. Waterman, as "(10) That on November 21, 1911, the attorney as aforesaid, in full payment and Herbo-Phosa Company gave its check upon satisfaction of the judgment and execution its account in the Industrial Trust Company, described in paragraphs 3 and 4 above. payable at the Westminster Bank, for the That thereupon said Lewis A. Waterman, sum of seventy-one dollars and thirty cents said Ann E. Congdon, administratrix assent- ($71.30), which check was given and was ing thereto, deposited said cashier's check received by the Westminster Bank as full in said Westminster Bank and received from said bank a certificate of deposit in said "(8) That on May 17, 1911, the HerboPhosa Company gave its check upon its account in the Industrial Trust Company, payable to the Westminster Bank, for the sum of seventy-two dollars and eight cents ($72.08), which check was given and was received by the Westminster Bank as full payment of the interest on said note of HerboPhosa Company for two thousand five hundred and sixty-four dollars and twenty-four cents ($2,564.24), dated May 17, 1911, up to the time of the maturity of said note and upon presentation said check was duly honored and paid. tions as the said original note, and thereupon said original note was marked 'Paid' by said Westminster Bank and by it surrendered to said Herbo-Phosa Company. payment of the interest on said renewal note up to the time of the maturity of said renewal note, and upon presentation said check was duly honored and paid. bank for the same sum as the face value of said cashier's check, which certificate of deposit was immediately deposited with said note of the Herbo-Phosa Company in said "(11) That said renewal note for two thouWestminster Bank and pledged to said bank sand five hundred and sixty-four dollars and as collateral security for the payment of twenty-four cents ($2,564.24) of said Herbosaid note, in accordance with an agreement Phosa Company is now held by said Westmade by said Lewis A. Waterman with said minster Bank. That it is not yet due, and |