190 A.D. 838 | N.Y. App. Div. | 1920
The action is for libel in this letter written and sent by defendant to the-master of the plaintiff:
“ Dear Sir.— In May last, I took the liberty to call your attention to a dishonest action on the part of one of your employees, to which your letter of May 23rd came to hand. Although no longer a B. R. T. stockholder, I again take the liberty of calling your attention to an act seen by me this day. I do this from the fact that I employ help myself, and have no use for a thief. To-day at 12:10 p. m., I entered the substation at Bowery and Kenmore Street, to come home. When I got downstairs, there was a line of about twelve people awaiting their turn to get to the ticket office. Your ticket agent seemed to do all she could to delay the willing-to-be passengers, with the result that while I was standing in line, four men threw in their nickels and ran downstairs without passing through the turnstile. This, no doubt, was a clear gain of twenty cents in about one minute for your ticket agent. So as there may not be any error as to the agent let me say that this was on the west side of the Bowery. The agent was a rather thin woman. At the same time and while I was in line, a rather stout woman came out of the booth, as if she was going home, after being relieved by the thin woman. This no doubt should enable you to find a way to get this dishonest employee right. In favor of honest employees, I am,
“ Yours very truly,
“ GEORGE P. CLAUSS.”
The defendant joined issue by denials, pleas of privilege, justification and mitigation, and adduced testimony. The learned court at plaintiff’s requests and under defendant’s exceptions charged “ specifically ” that the sole question for the jury was the amount of damages and that the questions of privilege or of truth must not be considered. The jury returned a verdict for |2,000, the full amount demanded. The defendant appeals.
I think that the procedure of the trial was wrong and that the exceptions were well taken. The defendant pleaded privilege. As the facts of the occasion were not in dispute, the court should have determined first whether the occasion
The basis of such qualified privilege is public policy (Bacon v. Mich. Cent. R. R. Co., 66 Mich. 166; Klinck v. Colby, 46 N. Y. 436) which holds that such a course is in the discharge of a public duty, devolved upon every member of society, lest the community should be an Alsatia or one in which the King's writ does not run. “ The well-being of each rises and falls with the well-being of all.” (Spencer, Data of Ethics, 241.) “ Interest ” is not essential to this kind of qualified privilege. “ Interest ” must exist only when the communication relates to the conduct of one’s own affairs and is thus expressly limited in the approved definitions. (See White v. Nicholls, 3 How. [U. S.] 266; Toogood v. Spyring, 1 Cromp. M. & R. Exch. 181; Davies v. Snead, L. R. [5 Q. B.] 611; of which the first two are authorities cited for the definition given in Klinck v. Colby, supra, which Cullen, Ch. J., in Ashcroft v. Hammond, 197 N. Y. 488, 494, says is constantly reiterated.) “ Interest ” is required in order to shut what is termed, in Byam v. Collins (111 N. Y. 151), “ the flood-gates of injurious gossip and defamation.” But information of a crime or of an attempt thereat is in the discharge of a public duty, not in the concern of one’s own affairs. Even in the discharge of the social duty of giving character to a servant, there is no “ interest ” peculiar to the informer.
But before the defendant can raise the shield of qualified privilege, the proof must satisfy the jury that he (but not
If the plaintiff establishes malice, then, despite the qualified privilege, damages may be recovered, and even punitive damages as well. (Crane v. Bennett, 177 N. Y. 106, 116.)
I advise that the judgment and order of the County Court of Kings county be reversed and a new trial be ordered, with costs to abide the event.
Rich, Putnam, Blackmar and Jaycox, JJ., concur.
Judgment and order of the County Court of Kings county reversed and new trial ordered, with costs to abide the event.