concerning whom the same was published to public hatred, contempt, or ridicule, or deprive him of the benefits of public confidence or social intercourse, such publication is a libel, and an action would lie therefor, although no special damage is alleged. Tillson v. Robbins, 68 Me. 295; Dexter v. Spear, 4 Mason, 115, Fed. Cas. No. 3,867; Smart v. Blanchard, 42 N. H. 151; Adams v. Lawson, 17 Grat. 250; McGregor v. Thwaites, 4 Dowl. & R. 695; Thorley v. Kerry, 4 Taunt. 355; Villers v. Monsley, 2 Wils. 403; Starkie, Sland. & L. § 153; Rosc. N. P. Ev. 791; 2 Whart. Cr. Law, § 1598. In Cropp v. Tilney, 3 Salk. 226, Lord Holt said: 'Scandalous matter is not necessary to make a libel. It is enough if the defendant induces an ill opinion to be had of the plaintiff, or to make him contemptible or ridiculous.' In Shipley v. Todhunter, 7 Car. & P. 680, Tindal, C. J., said that any written communication that bears on the face of it any charge, or which tends to villify another, is a libel.' In Woodward v. Dowsing, 2 Man. & R. 74, it was said that 'any written publication which tends to disgrace is actionable.' And in Dexter v. Spear, supra, it was said by Judge Story that 'any publication, the tendency of which is to degrade or injure another person, or bring him into hatred, ridicule, or contempt, or which accuses him of a crime punishable by law, or of an act odious and disgraceful in society, is a libel.' In Bell v. Stone, 1 Bos. & P. 331, the action was publishing of the plaintiff that he was a 'villain.' The plaintiff failing to prove a special damage, the court directed a verdict for the defendant. Counsel, however, contending that, inasmuch as the charge was in writing, it was actionable without proof of special damage, the court asked the jury what damages they would give, supposing the plaintiff entitled to recover in point of law. They answered, 'One shilling.' Subsequently a rule was granted on the defendant to show cause why the verdict in his favor should not be set aside, and a verdiet entered for the plaintiff; and upon the hearing the court expressed themselves clearly of the opinion that any words written or published, throwing contumely on the party, were actionable,' and ordered the rule to be made absolute. These authorities abundantly show that in many instances a marked distinction exists between words spoken and the same words written and published; and that words written or printed, and published, imputing to another any act, the tendency of which is to disgrace him, or to deprive him of the confidence and good will of society, or lessen its esteem for him, are actionable per se, and consequently lay the foundation for an indictment under the statute."

Applying these principles to the language used in the letter under consideration, we find the charge that plaintiffs are withholding money, collected by them, belonging to the company, and that the criminal laws provide for their action; and the company, by its agent, says:

"We have demanded payment by Buckner & Co. [plaintiffs] of $22.50, the amount they robbed of company funds on a false claim for commission on business which they did not transact."

It seems clear that this language is sufficient to constitute a libel. It may be true that a crime is not charged in technical language, or with sufficient certainty to support an indictment. It is, however, directly charged that the plaintiffs have been guilty of conduct for which the criminal laws provide, and are withholding money, collected by them, belonging to the insurance company, under a false claim for commissions on business they did not transact. Here is an expression of the writer's opinion that the plaintiffs' conduct came within the reach of the criminal law, and that they wrongfully appropriated moneys intrusted to their care, under the pretense of a claim for commissions upon business which they never transacted. These charges certainly reflect in the most serious manner upon the integrity, character, and business standing of the plaintiffs. Such

conduct would show them wholly unfit to be intrusted with any business, and meriting the aversion of honorable men. Men guilty of such conduct would be unworthy of the confidence and good will of society. The circulation of charges of so serious a nature tends to destroy that reputation and confidence to which all honorable men are entitled in the community. Such dishonest conduct, though technically not criminal, would lessen the esteem of society, and tend to deprive plaintiffs of their social standing. The petition contains all that is necessary to the statement of a cause of action, and, for the reasons stated, the words charged are libelous per se, from which the jury might imply malice, and are actionable without averment of special damage. The other averments are sufficient to warrant the overruling of the demurrer, and there was no error in the action of the court in that behalf.

3. The court below sustained the demurrer to the 9th defense, which is as follows:

"Ninth. Defendant, further answering, states that the said letter was written by said Garrigue to said Jack S. Moore as secretary of said local board at Hopkinsville, and that said Jack S. Moore and each and every member of said board were all familiar with the facts referred to in said letter, and that said Jack S. Moore and each and every member of said board knew that said letter did not charge a violation of the criminal laws of the state of Kentucky, or the crime of robbery, or any dishonest or criminal conduct, and did not understand said letter to charge the plaintiffs with being guilty of the crime of robbery or any crime whatever, or any dishonest or criminal conduct; and said Moore and each and every member of said board knew that said letter referred to the transactions herein before set forth, and so understood said letter. Defendant further states that said letter was written to said Moore as secretary of said local board, and that said local board consisted of the agents of the various insurance companies doing business in the city of Hopkinsville, Kentucky, and its vicinity, and that said letter was written in regard to transactions upon which the board had acted and was acting, and which directly concerned the defendant, and in which the defendant was directly interested, and that said letter was a privileged communication, and that it was written without any malice or ill will on the part of the defendant or any of its agents, and in an honest belief that the statements therein contained were true, and without any motive or intention to injure the plaintiffs."

And the amendment relating thereto is:

"And for amendment, in addition to the allegations contained in the ninth paragraph, defendant says that said local board at Hopkinsville was maintained and supported by the various insurance companies doing business in that city, and that defendant contributed and paid its proportion of all the sums necessary to support and maintain said board. Defendant says that said local board claimed and exercised the authority and power to fix and establish the rates of insurance and the premiums to be charged by the defendant and other companies for business done in said city; to superintend and oversee the local recording agent of the defendant as to the amount of premiums he should receive for defendant; to furnish to defendant's said agent the tariff rates for all business that might be secured by defendant in said Hopkinsville agency. Defendant says that said board claimed and exercised the further right to fine or expel the local agents of the companies belonging thereto, and deprive them of the privileges of membership in said organization, and further to declare that no member should do business with any company refusing to adhere to its rules; and defendant says that the membership in said board is absolutely necessary and essential to the proper conduct of its business, and that it could not transact the same without the privileges of membership in said organization. Defendant further says that said local board is a subordi

nate branch of an organization known as the Kentucky & Tennessee Board of Fire Underwriters, and is under the control and supervision of the Kentucky & Tennessee Board, and that it protested against said local board's treatment of this defendant, and demanded a rescission of the sentence imposed by said local board upon defendant."

This answer is twofold in its character. In the first place, it alleges that those to whom the letter was addressed (the secretary and local board) fully understood the alleged libelous statements, and knew the nature and character thereof, and that the said letter did not charge any violation of the criminal laws of the state of Kentucky, or any crime of robbery, or any dishonest or criminal conduct, and they did not understand the letter to charge the plaintiffs with being guilty of the crime of robbery, or any crime whatever, or any dishonest or criminal conduct, and said Moore and each and every member of said board knew that said letter referred to the transaction set out in the answer. In support of this ground of defense, authorities are cited holding, in effect, that where persons, in whose hearing slanderous words are uttered, understand the words to refer to innocent transactions, or those not criminal, no action for slander can be maintained. Examples of this class of cases are found in Hayes v. Ball, 72 N. Y. 418, and Carmichael v. Shiel, 21 Ind. 66. In the former case the words imputed were, "When he [the plaintiff] was highway commissioner, he stole $1,000 from the town." Defendant attempted to show that, when he held the office of highway commissioner, he failed to procure vouchers for $1,000 which came into his hands. Chief Justice Church, in speaking of the ruling of the court below, said:

"If it had appeared that when the words were spoken they were accompanied with such an explanation as would make it clear that they referred to an innocent transaction, or to a transaction which, in law, could not have constituted larceny, the motion for a nonsuit should have been granted. So if it had appeared that all of the persons who were present understood from the facts which they knew, or had otherwise learned, that the words referred to a transaction which could not, in law, constitute larceny, the same result would follow."

In the Indiana case, plaintiff sued to recover from defendant for language charging her with stealing. Plaintiff was in the service of defendant, who was a landlord in a hotel in Indianapolis, and while in such service she broke dishes belonging to the house. The landlord deducted the value of the dishes from her wages. The plaintiff then carried away the fragments of the dishes, openly claiming them as her property. Defendant then went before the justice, and instituted proceedings against her. Upon the trial the plaintiff was discharged. Immediately after the discharge, and while the parties were still in the court room, defendant advanced towards plaintiff and said, "Now, I want you to bring back the dishes you stole from my house." The court held that, these words being spoken in the presence of those who heard the evidence of the late trial, and who knew that the transaction referred to was not criminal, but innocent, or a trespass, at most, the action for slander could not be maintained. The knowledge of the witnesses was such that no charge of crime was conveyed to them in the utterance of

the defendant. These and similar cases are cited in support of the contention of the plaintiff in error. We are at a loss to perceive their application to the facts in this case. In cases of libel, where the writing is put into circulation, it may, as a natural and probable consequence of publication, reach persons for whom it was not intended. The petition in this case charges that said letter was received by said Moore, and its contents published and made known by him, as was intended by said defendant, in the city of Hopkinsville, where the plaintiffs reside. This allegation is not denied in this ground of defense. No other allegation of the answer is incorporated, by reference, into this ground of defense; but, looking at the eleventh paragraph of the answer, which covers this matter of publication by defendant, we find it stated:

"Eleventh. States that the only publication of said letter by this defendant was the writing and mailing thereof to said Jack S. Moore, and the reading of the same by the said Moore as secretary of the said board, and that said Moore was not authorized to make the contents of said letter known to any one else, and that this defendant is not responsible for any damages which plaintiffs may have sustained by the acts of the said Moore; and denies that said plaintiffs have sustained any damages whatever."

The latter part of this paragraph is mere conclusion, and it may be true that the defendant gave no direct authority to Moore, secretary of the local board, to publish the alleged libel. Still, it would be liable in law for such publication as is the natural consequence of putting the letter in circulation. If the publication by Moore, referred to in this petition, was found by the jury to have been the natural and probable consequence of defendant's publication, then the defendant would be responsible for the same. This rule is recognized in Townsh. Sland. & L. § 158. In Miller v. Butler, 6 Cush. 71, where the suit was brought for circulation of an alleged libelous letter, it is said in the syllabus:

"The responsibility of the writer of a private letter for the publication of a libel contained therein is not limited to the consequences of a communication of it to the person to whom the letter is addressed, but extends to the probable consequences of thus putting it in circulation."

To the same effect is the language of Chief Justice Gilfillan, of the supreme court of Minnesota, in Zier v. Hofflin, 33 Minn. 66–68, 21 N. W. 862:

"Now, although one who publishes a libel is not to be held responsible for an independent wrong done by a third person, though connected with the libel, he is responsible for the natural consequences of his own wrong act, although the wrongful act of a third person may concur in bringing about such consequences. If it were a natural consequence of defendant's publication through the newspaper that some evil-disposed person should send a copy of the paper, or the item cut from the paper, to some one whom defendant had not thought of its reaching, he would be liable for it, as the consequences of his own wrong. Townsh. Sland. & L. § 158; Miller v. Butler, 6 Cush. 71. It was for the jury to say whether sending the postal card by a third person was a natural consequence of defendant's publication in the newspaper."

It was therefore a question for the jury to determine whether such publications as the plaintiffs might properly prove under the statements of the petition were the natural consequences of sending the letter to Moore, and thus putting it in circulation. We are

therefore of the opinion that the court did not err in sustaining the demurrer to this branch of the defense.

There is the further undertaking to plead in this paragraph of the answer that the communication in question was of a privileged character. It is alleged that the letter was written to Moore as secretary of said local board; that said board consisted of the agents of the various insurance companies doing business in Hopkinsville, Ky.; that said letter was written in regard to certain transactions concerning which the board had acted and was acting, and which directly concerned the defendant, in which it was interested, and was written without malice or ill will on the part of the defendant or its agents, and in the belief that the statements were true, without any desire to injure the plaintiffs. It is not claimed that this communication comes within the class known as "absolutely privileged," but that it is, rather, entitled to a qualified privilege. Privileged communications of this character may be said to comprehend all bona fide statements in performance of any duty, whether legal, moral, or social, even though of imperfect obligation, when made with a fair and reasonable purpose of protecting the interest of the person making them, or the interest of the person to whom they are made. Townsh. Sland. & L. § 209; Taft, C. J., in Publishing Co. v. Hallam, 8 C. C. A. 201, 59 Fed. 540. The question of qual ified privilege was discussed in the supreme court of the United States in the case of White v. Nicholls, 3 How. 266, 11 L. Ed. 591. Mr. Justice Daniel sums up his conclusions as follows:

"The investigation has conducted us to the following conclusions, which we propound as the law applicable thereto: (1) That every publication, either by writing, printing or pictures, which charges upon or imputes to any person that which renders him liable to punishment, or which is calculated to make him infamous or odious or ridiculous, is prima facie a libel; and implies malice in the author or publisher towards the person to whom such publication is made. Proof of malice, therefore, in the cases just described, can never be required of the party complaining, beyond the proof of the publication itself. Justification, excuse, or extenuation, if either can be shown, must proceed from the defendant. (2) That the description of cases recognized as privileged communications must be understood as exceptions to this rule, and as being founded upon some apparently recognized obligation or motive, legal, moral, or social, which may fairly be presumed to have led to the publication, and therefore prima facie relieves it from that just implication from which the general rule of the law is deduced. The rule of evidence as to such cases is accordingly so far changed as to impose it on the plaintiff to remove those presumptions flowing from the seeming obligations and situations of the parties, and to require him to bring home to the defendant the existence of malice as the true motive of his conduct. Beyond this extent no presumption can be permitted to operate, much less be made to sanctify the indulgence of malice, however wicked, however express, under the protection of legal forms. We conclude, then, that malice may be proved, though alleged to have existed in the proceedings before a court or legislative body, or any other tribunal or authority, although such court, legislative body, or other tribunal may have been the appropriate authority for redressing the grievance presented to it, and that proof of express malice in any written publication, petition, or proceeding addressed to such tribunal will render that publication, petition, or proceeding libelous in its character, and actionable, and will subject the author and publisher thereof to all consequences of libel. And we think that, in every case of a proceeding like those just enumerated, falsehood and the absence of probable cause will amount to proof of malice."