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163 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 

Libel — Letter Shown to Defendant's Employees — 
Occasion Held Privileged. — It is a broad rule of law that the 
showing of a letter containing defamatory matter by the writer 
to any person other then the addressee is a publication. 1 This 
rule has been subjected to the exception that where there is a com- 
munity of duty or interest in the subject matter of the letter be- 
tween the writer and the person to whom the letter is shown, it is 
a privileged occasion.* A modern outgrowth of this long-establ- 
ished principle is found in the proposition advanced in a recent 
case that the scope of this privilege covers all the incidents of the 
transmission and treatment of the communication which are in 
accordance with the reasonable and usual course of business. 3 

In this case a letter had been written to the plaintiff based on 
statements of the defendant's bill collector that certain receipts 
had been tampered with. The letter, intimating that the plain- 
tiff had done the tampering, was composed partly by the defendant's 
general manager and partly by the bookkeeper, and had then been 
shown to the bill collector. No malice having been found, the 
occasion was held conditionally privileged since each of these 
persons had a duty to perform for the defendant respecting the 
letter, and the performance of this duty was the usual course of 
doing business in such a matter. 

Neither in England nor in this country are the authorities in 
accord on this subject. Two distinct lines of cases have arisen 
within the past thirty years which are difficult of reconciliation. 
The one view of the question is presented by the line of decisions 
following the case of Pullman v. Hill. 4 In that case it was held 
that the dictation of a libel by an officer of a mercantile company 
to a stenographer employed by it, and its delivery to an office boy 
to have letter press copies made, when the communication itself 
was not privileged, constituted a publication; and that since the 
occasion was not privileged, the publication was actionable. This 
rule but followed the long recognized principle of pre-typewriter 
days that the getting a libelous letter copied in writing for one by 
another is a publication ; 6 and the application of the strict language 
of this rule has since been frequently made in America in deciding 
that the dictation of a letter to a stenographer is in any case a 
publication. 6 

The rule of the Pullman case, where it has been followed, has 
been understood to hold clearly that dictation to a typist is publi- 

'Pullman v. Hill (1891) 1 Q. B. 524. 

"Blackham v. Pugh (1846) 2 C. B. 611, 15 L. J. C. P. 290. 

'Globe Furniture Co. v. Wright, 265 Fed. 873 (1920). 

«(i8 9 i) 1 Q. B. 524. 

6 Kiene v. Ruff, 1 Iowa 482 (1855); Adams v. Lawson, 17 Gratt. 250, 94 
Am. Dec. 455 (Va. 1867). 

'Gambril v. Schcoley, 93 Md. 48, 48 Atl. 730 (1901); Sun Title Insurance 
Co. v. Bailey, 101 Va. 443, 44 S. E. 692 (1902); Puterbaugh v. Gold Medal 
Manufacturing Co., 7 Ont. L. R. 582, 1 Am. Cas. 100 (1904) ; Ferdon v. Dickens, 
161 Ala. 181, 49 So. 888 (1909). 



NOTES 169 

cation. Yet the rule of that case is in reality far less broad. The 
basis of the decision lay in the fact that there was no duty on the 
part of the defendant to write this letter, and no duty on the part 
of the typist to take it for dictation, and that the dictating and 
copying of the letter were not a part of the usual and reasonable 
conduct of the defendant's business; and this is recognized clearly 
by Lord Esher, who had delivered the court's opinion in the Pull- 
man case, when in another case three years later he so defined his 
own ruling. 7 In this latter case, where a solicitor had dictated to 
his stenographer a letter containing libelous statements and this 
letter was afterwards copied into a letter book by another clerk, 
the letter was held not actionable since it was the duty of the 
solicitor to write this letter and it was also his duty to handle the 
matter in the ordinary way of doing business; and since the ordi- 
nary manner of doing his business included dictation to a steno- 
grapher and copying by a clerk, such an occasion was privileged. 

The apparently conflicting rules of these two cases 8 faced 
the English courts later; and the present English rule as developed 
therefrom is best given by Collins, M. R., when in following the 
decision of Boxsius v. Goblet Freres, supra, he comments on the two 
earlier decisions: "The result of these two cases to which I have 
alluded, taken together, appears to me that, where there is a duty, 
whether of perfect or imperfect obligation, as between two per- 
sons, which forms the ground of a privileged occasion, the person 
exercising the privilege is entitled to take all reasonable means of 
doing so, and those reasonable means may include the introduc- 
tion of third persons, where that is reasonable and in the ordinary 
course of business; and, if so, it will not destroy the privilege."' 
And this interpretation of Lord Esher's rule has been the one con- 
sistently followed in England. 10 

American courts have generally thus far followed the strict 
rule of the Pullman case ; but recently there has been an inclina- 
tion shown in some cases to turn toward the present English rule. 11 
One recent American case 12 has decidedly accepted it as being in 
accord with the business necessities of our day. The language of 
the court in this case clearly adopts this view: " It is inconceivable 
how the business of the country, under the present conditions, can 
be carried on, if a business man or corporation must be subject to 
litigation for every letter containing some statement too strong, 
where it is only sent to the person to whom directed, and only 
heard by a stenographer to whom the letter is dictated." It is 

'Boxsius v. Goblet Freres, (1894) I. Q. B. 842. 

'Pullman v. Hill and Boxsius v. Goblet Freres, supra. 

'Edmonston v. Birch & Co., (1907) 1. K. B. 371. 

"Morgan v. Wallis 33 T. L. R. 495 (Eng. 1917); London Association v. 
Greenlands, L. R. (1916) 2 App. Cas. 22. 

"Nichols v. Eaton, no Iowa 509, 81 N. W. 792 (1900); Phillips v. Brad- 
shaw, 167 Ala 199, 52 So. 662 (1910). 

12 Cartwright-Caps Co. v. Fischel, 113 Miss. 359, 7 So. 278 (1917). 



170 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 

reasonable to be expected that this rule will henceforth prevail; 
the principal case seems to show that tendency. Modern con- 
ditions of business are such that a man cannot himself write his 
business letters; and in business it is often necessary to include in 
correspondence statements defamatory of the recipient of the 
letter. To subject a business man to action for civil or criminal 
libel for conducting his business in the ordinary way, when his 
interests require that in good faith he write a defamatory letter, 
would be to apply a too oppressive rule of law. 

The solution to this question is probably best stated by Earl 
Loreburn in a recent case 13 in which he says: "The facts of differ- 
ent cases vary infinitely, and I do not think that the principle can 
be put more definitely than by saying that the judge has to con- 
sider the nature of the duty or right or interest, and to rule whether 
or not the defendant has published something beyond what was 
germane and reasonably appropriate to the occasion, or has given 
it a publicity incommensurate to the oceasion. " On such a view 
as this, business necessity can be convenienced ; and still a man 
will not be permitted to go far afield from business interests to use 
his office facilities for writing defamatory letters which are not 
within the scope of the reasonable and usual conduct of his busi- 
ness. 14 

Another view of this question which is favored by some courts 
is that such communications are not actionable because the steno- 
grapher or other employee to whom the communication was made 
before it was mailed is not a third person, within the technical 
meaning of such term, but is merely an impersonal facility used in 
making and transmitting the communication. Under this view 
it has been held that dictation to a stenographer by an officer of a 
corporation is not a publication. 16 This rule has been held as well 
to apply between members of a partnership. 16 And it has been 
extended so far in one case as to govern communications between 
any fellow employees of a corporation. 17 The soundness of this 
rule, however, may well be questioned. Individual identity is 
not lost by one's being a member of a firm or an employee of a 
corporation ; and such business status does not destroy the ability 
of an officer, partner or employee to form individual opinions and 
express them. While The Globe Furniture Co. v. Wright, supra, 
does not repudiate this proposition, Judge Smyth does not accept 
it. He puts his decision squarely on the ground that duty to write 
this letter made the occasion conditionally privileged, and that 

"London Association v. Greenlands, supra. 

"As to probable limits of such rule, see notes in 20 L. R. A. (N. S.) 361 ; 
L. R. A., 1915E, 131- 

16 Owen v. Ogilvie Publishing Co., 32 App. Div. 465, 53 N. Y. S. 1033 

(I9I7)- . , 

"Kirschenbaum v. Kaufmann, 50 N. Y. L. J. 406 (1913). 

"Central of Georgia Railroad v. Jones, 18 Ga. App. 414, 89 S. E. 429 
(I9I7)- 



NOTES 171 

since no malice was shown, everything done by the defendant was 
done in the ordinary course of conducting the business ; that being 
so, the occasion remained privileged. 

B. C. J. 

Is a Conviction on a Void Indictment a Bar to a Sub- 
sequent Prosecution? — It is an established maxim of the 
common law 1 incorporated into the Federal Constitution 2 and made 
a part of the fundamental law of every state 3 that no man shall be 
put in jeopardy twice for the same offense. However well es- 
tablished this doctrine is, it is often difficult to determine whether, 
on a given state of facts, former jeopardy can be pleaded as a bar 
to a second prosecution. 

The general rule is that there can be no jeopardy where the 
indictment is not sufficient to sustain a conviction. 4 Such an 
indictment may be either void or defective. It is void where it 
does not state an offense, 5 or where it was found by a grand jury 
which was illegally organized ; 6 while it is defective where it states 
an offense and was regularly found, yet because of errors in form 
or substance it is insufficient to sustain a conviction and would 
be reversed on error. 7 The theory upon which the above rule of 
jeopardy is based is that it would be a contradiction in terms to 
say that a person was put in danger of his life or liberty by an 
indictment under which he could not be convicted; for the law 
will presume that the court will discover the defect in the indict- 
ment in time to prevent the defendant's being convicted. 8 Thus, 
it is universally held that a conviction and judgment upon a de- 
fective or void indictment is not a bar to another prosecution for 

'4 Blackstone's Commentaries, 335; Kohlheimer v. State, 39 Miss. 548, 
77 Am. Dec. 689.(1860), semble. 

Constitution of the U. S., Amend. V: "Nor shall any person be subject 
for the same offense to be twice put in jeopardy of life or limb. " 

3 Alabama, Const, of 1901, Art. I, sec. 10; California, Const, of 1879, Art. 
I, sec. 13; Colorado, Const, of 1876, Art. II, sec. 18; Delaware, Const, of 1897; 
Indiana, Const, of 1851, Art. I, sec. 14; Kentucky, Const, of 1890; Maine, 
Const, of 1819; Ohio, Const, of 1851, Art. I, sec. 10; Pennsylvania, Const, of 
1873, Art. I, sec. 10. 

4 Kohlheimer v. State, supra; Robinson v. State, 52 Ala. 587 (1875); 
State v. Smith, 88 Iowa, 178 (1893); People v. Terrill, 133 Cal. 120, 65 Pac. 
303 (1910)5 Kenny v. State, 121 Md. 120, 87 Atl. 1109 (1913), semble; Bishop: 
New Criminal Law, 8th ed., Sec. 1021, par. 2. 

6 State v. Bogard, 25 Ind. App. 123, 57 N. E. 722, 81 A. S. R. 84 (1900); 
People v. Terrill, supra. 

6 Kohlheimer v. State, supra; Finley v. State, 61 Ala. 201 (1878); U.S. v. 
Jones, 31 Fed. 725 (1887); Ogle v. State, 43 Tex. Cr. App. 219 (1901); Stephens 
v. State, 50 So. 42 (Ala. 1909). 

'Commonwealth v. Phillips, 16 Pick. 211 (Mass. 1834); Shook v. State, 
25 Tex. Cr. App. 345 (1888); U. S. v. Ball, 163 U. S. 662 (1895); State v. Keat- 
ing, 202 Mo. 197 (1907). 

"Hawkins, Pleas of the Crown, vol. II, ch. 35, sec. 8; 4 Criminal Law 
-Magazine, 487, 490; People v. McNealy, 17 Cal. 332, (1861) semble.