Adams

Action for libel. It is alleged, in plaintiff's complaint, that, from August, 1891, to September, 1895, plaintiff was employed as brakeman in the service of the Southern Pacific Company and from September, 1895, to December 31, 1910, he was in its service as conductor upon the trains of said railroad company which, among other places, were, in 1910, being regularly operated between South Vallejo and Suisun; that, on December 31, 1910, plaintiff was in said service as train conductor between said last named points and was receiving as compensation the sum of $184.50 per month; that, on December 1, 1910, defendant wrote, signed, and published and caused to be delivered to and read by Charles S. Fee, then the general passenger agent of said railroad company, a letter containing false and defamatory matter concerning plaintiff as follows, to wit: "Los Banos, Cal., December 1, 1910. "Mr. CHARLES S. FEE, San Francisco. Dear Sir: Sunday afternoon on train from Napa Junction to Suisun a passenger was spoken to in very rough language by Conductor Adams, simply because he had by mistake gotten on that train, expecting to go to Santa Rosa. The passenger was a well dressed sober man,…

The application for a hearing in this court after decision by the district court of appeal of the third district is denied. We deem it proper to say in denying the application that we do not approve what is said in the opinion of the district court of appeal with reference to the action of the trial court in modifying certain requested instructions relative to privileged communications, said court having modified same by "injecting into each a qualification to the effect that before libelous matter can be privileged it must appear that it was and is substantially true." We are satisfied, however, that the error of the trial court in this regard must be held to be immaterial, in view of the express finding by the jury that in the writing and publication of the letter the defendant was actuated by actual malice toward plaintiff (see Civ. Code, sec. 47 , subd. 3), which finding we deem sufficiently sustained by evidence. Shaw, J., Sloss, J., Lawlor, J., and Melvin, J., concurred. *Page 642