Forsythe v. Durham — 270 N.Y. 141

Majority

p. 141

Erma Forsythe, an Infant, by Ray Forsythe, Her Guardian ad Litem, Respondent, v. Harold F. Durham, Appellant.

(Argued January 29, 1936;

decided March 3, 1936.)

Lewis E. Mosher and Sherman Moreland for appellant.

There is no evidence to support the finding that the defendant acted maliciously. (Hemmens v. Nelson, 138 N. Y. 517 ; Ashcroft v. Hammond, 197 N. Y. 488 ; Haft v. First Nat. Bank, 19 App. Div. 423 ; Decker v. Gaylord, 35 Hun, 584 ; Long v. Peters, 47 Iowa, 239 ; Dickinson v. Hathaway, 122 La. 644 ; Pecue v. West, 233 N. Y. 316 .)

John D. O’Loughlin and J. Laning Taylor for respondent.

The.question of malice was properly submitted to the jury. (Tim v. Hawes, 97 Misc. Rep. 30 ; Pecue v. West, 233 N. Y. 316 ; Sewell v. Catlin, 2 Wend. 296 ; Jarvis v. Hathaway, 3 Johns. 178 ; Fowles v. Brown, 30 N. Y. 20 ;

p. 142

Lally v. Emery, 59 Hun, 237 ; Bernstein v. Singer, 1 App. Div. 64 ; Bassell v. Elmore, 48 N. Y. 561 ; Thorn v. Moser, 1 Den. 488 ; Lindsey v. Smith, 7 Johns. 359 ; Demarest v. Harring, 6 Cow. 87 ; Harwood v. Keech, 4 Hun, 89 .)

In this action for slander defendant is principal of a high school and plaintiff was a student therein. Defendant’s duty required him to communicate to the Board of Education the fact that rumors concerning plaintiff were circulated among the students and teachers. In so acting he was protected by a qualified privilege and is free from liability unless his conduct resulted from malice. That there was no actual malice is conceded. There is no evidence that defendant acted with a wanton and reckless disregard of plaintiff’s rights or otherwise than in good faith. (Pecue v. West, 233 N. Y. 316 , 322, 323.)

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Judgments reversed, etc.

Cases cited

Hemmens v. Nelson 138 N. Y. 517 N.Y. 1893-06-13 p. 141
Ashcroft v. Hammond 197 N. Y. 488 N.Y. 1910-02-15 p. 141
Haft v. First National Bank 19 App. Div. 423 N.Y. App. Div. 1897-07-02 p. 141
Pecue v. West 233 N. Y. 316 N.Y. 1922-04-25 at 322, 323 p. 141, p. 142
Tim v. Hawes 97 Misc. Rep. 30 N.Y. App. Term 1916-10-25 p. 141
Poucher v. Livingston 2 Wend. 296 N.Y. Sup. Ct. p. 141
Fowles v. Bowen 30 N. Y. 20 N.Y. p. 141
Bassell v. Elmore 48 N. Y. 561 N.Y. Comm'n App. p. 142
Lindsey v. Smith 7 Johns. 359 N.Y. Sup. Ct. p. 142