CHAPTER VI. THE SERVANT'S CHARACTER. MASTER NOT BOUND TO GIVE SERVANT A CHARACTER. WHERE MALICE ESTABLISHED PRIVILEGE DISAPPEARS PAGE 851 851 852 BE 853 HOW MALICE ESTABLISHED GIVING A FALSE CHARACTER ACTIONABLE IF DAMAGE ENSUE 858 858 858 INDICTABLE. PROOF OF THE FALSENESS OF THE CHARGE INSUFFICIENT No master is legally bound to give his domestic or menial servant Master not bound to give a character.1 If the master does make to a third person in servant a confidence a communication in the nature of a character, such character. communication is prima facie privileged, and no action can be maintained by the servant against him on account of it, if done bona fide and without malice. tion. A communication made bona fide upon any subject-matter in Character which the party communicating has an interest, or in reference given bond fide a privileged to which he has a duty, is privileged if made to a person having communicaa corresponding interest or duty, although it contain criminatory matter which without this privilege would be slanderous and actionable. But this duty is not to be confined to legal duties which may be enforced by legal process, but must include moral 1 Carrol v. Bird, 3 Esp. 201. 2 A canon propounded by counsel during argument and adopted by Lord Campbell in Harrison v. Bush, 5 E. & Bl. 344, 348. Ground of privilege. Duty of master to state the truth fairly and social duties of imperfect obligation. Indeed, this privilege in the matter of servants' characters arises from the duty (moral and not legal), which is cast by the requirements of society on the master, of stating fully and fairly the truth about his servant whether in his favour or against him, and because masters should be as fully protected as possible if they honestly discharge their duty in speaking of the characters of those who have quitted their service, and acquainting those with the truth who are about to take them into their homes and service. "It is of importance to the public that characters should be readily given. The servant who applies for the character, and the person who is to take him, are equally benefited. Indeed, there is no class to whom it is of so much importance that characters should be freely given as honest servants. It is for that object that communications are protected."2 Again: "In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is concerned. In such cases the occasion prevents the inference of malice which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society, and the law has not restricted the right to make them within any narrow limits.” The employers, then, of domestic servants have a duty cast upon them to state fairly and honestly what they know of them when and honestly. applied to by those who may be about to take them into their homes; and those who are about to employ them have a corresponding interest in knowing the truth concerning them, so that they may be rightly informed as to those who are coming to form part of their domestic household. Masters and mistresses should be freely, unreservedly, and truthfully outspoken as to their opinion of those servants who have left their service; not keeping back that which is unfavourable to them, nor wilfully speaking ill of them, nor recklessly exaggerating their faults and shortcomings. For while the law in the interests of society holds the communication of the character of a servant privileged, yet a deliberately 1 Per Lord Campbell in Harrison v. Bush, 5 E. & Bl. 344. Per Wightman, J., in Gardner v. Slade, 18 L. J. Q. B. 334. 3 Per Parke, B., in Toogood v. Spyring, 3 L J. Ex. 347. This has been approved of in Whiteley v. Adams, 33 L. J. C. P. 89; and Cowles v. Potts, 34 L. J. Q. B. 247. stated falsehood would be evidence of malice, and would tend to deprive the communication of its privilege.' 2 3 communicated. The master is in duty bound not only to state what he knows Facts learnt of the servant at the time of his discharge, but if he knows of any of servant after discharge circumstance subsequently happening, of which the inquirer is should be entitled to be informed, also to tell him further what he conscientiously believes to be the case; therefore, if a good character is at first given, and the master subsequently find out matters unfavourable to the servant, it is his duty to communicate his discovery to the person to whom the character has been given. This point was decided in the case of Child v. Affleck; there the defendant with whom the plaintiff had lived as servant, in answer to inquiries respecting her character, wrote a letter imputing misconduct. whilst in her service, and after she had left it; the defendant also made similar parol statements to persons that had recommended the plaintiff to her. It was held that neither the letter itself nor the parol statements proved malice, and that consequently the letter was a privileged communication, and the plaintiff not entitled to recover. quiries to be The privilege is not taken away even where the former master Former master courts inquiries to be made by the new master. Thus, in Gardner courting inv. Slade, the plaintiff, a domestic servant, about to enter the made by new master: priviservice of Mrs. M., referred Mrs. M. to the defendant, in whose lege. service she had been. The defendant being then unwell, her husband answered the application, and gave the plaintiff a good character; and Mrs. M. took the plaintiff into her service. The defendant subsequently recovered, and, in a letter written to Mrs. M. on other matters, said that she (the defendant) had been much imposed upon in her kitchen. Mrs. M. in consequence made further inquiries of the defendant as to the plaintiff's character; and the defendant in answer spoke the words complained of, namely, that she suspected the plaintiff of dishonesty. The jury found the defendant intended by her letter to induce Mrs. M. to make inquiries as to the plaintiff, and found for the plaintiff, subject to leave to move for a non-suit. The Court subsequently made the rule for a non-suit absolute; Lord Denman, C.J., saying: "I think the privilege which protects a master in giving a character lasts as long as anything is discovered, before unknown to the master; as, for instance, if I give a good character to a servant, and next day discover the servant is dishonest, surely in such a case it becomes my duty to communicate my discovery to the person to whom I have given the character." 1 Post, p. 856. 2 Per Kelly, C.B., in Jones v. Duke of Westminster (Times, April 26, 1879). 3 B. & C. 403. 9 E (Ubi sup.). 5 13 Q. B. 799. Former master Where malice is established, appears. Officious interference of So, where a master writes a letter to the former master of the servant on whose recommendation he had taken him, to the effect that his conduct had not justified the character given of him, it is a privileged communication. This privilege is based upon the propriety of warning the former master that the character originally given by him to the servant is no longer deserved. So, too, if a servant, knowing the character which his master will give of him, procures a letter to be written, not with a fair view of inquiring the character, but to procure an answer upon which to ground an action for a libel, no action can be maintained." Where the servant can establish the malice of the master in privilege dis- making the communication of which he complains, then the privilege is taken away; for the master is found to have acted no longer in the proper and honest discharge of the moral duty cast upon him, but has deliberately and intentionally devised a wrong to another person, for which he should be justly held responsible. Thus, where a master officiously volunteers to inform master may be a person into whose service he hears that a discharged servant of his is about to enter as to that servant's unfitness, it may be used against him as evidence of express malice towards the servant; for "upon the question whether a man who has written a libel injuring the character of a servant has acted bona fide or not, it makes a very material difference whether he volunteered to give the character, or had been called upon so to do. At all events, when he volunteers to give the character, stronger evidence will be required that he acted bona fide than in the case where he has given the character after being required so to do.” proof of express malice. Express malice and not law must be proved against the master. 3 There is an important distinction in their legal effect between mere malice in words prima facie slanderous spoken by a master of a servant, and such words spoken by one person of another not in that relationship. In the latter case malice in law which will ground Malice in law. an action is all that need be proved. "Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act done intentionally, without just cause or If I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional." But where an action for slander is brought on a communication of a servant's character, it is not to be considered as an action in the common way for defamation by words, excuse. 1 See Dixon v. Parsons, 1 F. & F. 24. 2 Per Lord Alvanley in King v. Waring, 5 Esp. 15. See Weatherston v. Hawkins, 1 T. R. 110. 3 Pattison v. Jones, 8 B. & C. 578. 4 Per Littledale, J., in Pattison v. Jones, p. 585. 5 Per Bayley, J., in Bromage v. Prosser, 4 B. & C. 247, 255. of malice on but that the gist of it must be malice, which is not implied from the occasion of speaking, but should be directly proved; and no action lies for giving the true character of a servant, upon application made to his former master, to inquire into his character, with a view of hiring him, unless there should be extraordinary circumstances of express malice. This privilege, as before seen, is not confined to communications made on application, but even where they are volunteered, if not found to be malicious. Communications, therefore, as to the character of a servant will be deemed prima facie to be true, and not actionable, but privileged, and the onus of proving malice is cast upon Onus of proof the plaintiff, and before the question of malice can be submitted the plaintiff. to the jury, the evidence must raise a probability of malice, and be more consistent with its existence than its non-existence.* Indeed, the protection of the master (for the benefit of society) Evidence of is carried a long way, and before the privilege of the communi- malice must cation is taken away, clear proof of malice must be forthcoming. It is the existence of the moral duty (before alluded to) cast upon the master, that makes his communication privileged; thus, where a master had dismissed a servant on a charge of theft, and warned his other servants against associating with him, and informed them of the reasons for dismissing him, his communication was deemed privileged.3 A servant cannot maintain and mere proof an action against his former master for words spoken or a letter written by him in giving a character of the servant, unless the insufficient. latter prove the malice as well as the falsehood of the charge, even though the master make specific charges of fraud against him. Thus, though the statement should be untrue in fact, the master will be held justified by the occasion in making that statement, unless it can be shown to have proceeded from a malicious mind.' 6 be clear; of the falseness of the charge Where defamatory words (such, for instance, as impute fraud to Privilege not a servant) are prima facie privileged, as being spoken with honesty tacan a way of purpose, and to a person interested in the inquiry, the mere fact famatory words spoken that they are spoken in the presence of a third person does not of in the presence necessity take away the privilege; so, where a master discharged osted third his footman and cook, and they asked him his reason for dismissing person. them, and he told the footman in the absence of the cook that he charged him with robbing him along with the cook, and told the 1 Per Lord Mansfield in Edmondson v. Stevenson et uxor, cited Bull. N. P. S. 2 Per Lord Mansfield in Hargrave v. Le Breton, 4 Burr. 2423, 2425. 3 See Whiteley v. Adams, 33 L. J. C. P. 89. 4 Somerville v. Hawkins, 20 L. J. C. P. 131. 6 Weatherston v. Hawkins (ubi sup.). 5 Ibid. 7 Per Lord Denman, C.J., in Fountain v. Boodle, 3 Q. B. 5, 12. 8 Toogood v. Spyring, 3 L. J. Ex. 347; Taylor v. Hawkins, 20 L. J. Q. B. 313. of an inter |