It appeared from the evidence that the charge of stealing was not made until after she had left the defendant's service; that he had told her he would say nothing about it if she would resume her employment at his house, and that he afterward said to her that, if she would admit the theft, he would give her a character. The jury concluded that he was not acting bona fide in the reply he gave to the inquiry as to the girl's character, and gave her a verdict.[1]
In making a damaging statement to an inquiring person about a domestic, it is perhaps kinder to her to see that no one is present but the one interested in the inquiry. It may also turn out to be the safer course to pursue. It is true that such caution is not absolutely essential for the protection of the communication, but, if an opportunity is sought for making a charge before third persons when it might have been made in private, it affords strong evidence of a malicious intention, and thus deprives it of that immunity which the law allows to such a statement when made honestly; and, too, the fact that a third person is present is a circumstance which, taken in connection with others, such as the style and character of the language used, would have weight with a jury in determining whether the person making the statement had acted in good faith or had been influenced by malice,[2] The same thing may be said of an accusation made to a servant in the presence of another. It is a question for the jury. If it is made at such a time, on such an occasion, and under such circumstances that the inference of malice prima facie arising from the accusation is rebutted, the burden of showing that it was actuated by malice or ill-will rests upon the servant. It must, for instance, be made in good faith and for a justifiable purpose, in the discharge of a duty, public or private, legal or moral, or in the prosecution of one's own rights and interests, and without any design to defame the person to whom it relates, even though it is all untrue.[3] Thus, if a lady is about to discharge a servant, and calls in a third person to hear the reason therefor, and states the reason in that person's presence, the courts have held that such a communication made with honesty of purpose is privileged.[4] It has been held, however, in Massachusetts, that a false charge made before a third person is libelous.[5] If the statement is made in answer to inquiries, it must be to some person who has an interest in the inquiry, and not as mere matter of gossip.[6]So, where a gentleman, having dismissed his servant for dishonesty, refused to give him a character, alleging to those who applied that he had dismissed him from his service for dishonesty, and the servant's brother afterward inquired of the master why he had so treated the servant, and was thus keeping him out of a situation, the gentleman replied, "He has robbed me, and I believe for years past."
