| Conn. | Jul 25, 1913
Lead Opinion
The law implies malice from a libelous publication, except in certain cases of privilege, one of *222 which is when "the author and publisher of the alleged slander acted in the bona fide discharge of a public or private duty, . . . or in the prosecution of his own rights or interests. . . . A privileged communication means nothing more than that the occasion of making it rebuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff, and throws upon him the onus of proving malice in fact; but not of proving it by extrinsic evidence only; he has still a right to require that the alleged libel itself shall be submitted to the jury, that they may judge whether there is evidence of malice on the face of it." White v. Nicholls, 44 U.S. (3 How.) 266, 286, 287.
Whether a publication is libelous per se is a question for the court. Donaghue v. Gaffy,
No complaint is made on this appeal in regard to the rulings or charge of the court, and the only alleged error is the denial by the court of the plaintiff's motion to set aside the verdict as against the evidence.
As to the count in slander, the evidence was conflicting and affords reasonable basis for the verdict. So far as the counts in libel are concerned, the only question raised by this appeal is whether there was evidence from which the jury might reasonably have found that the defendant, in writing the letters complained of, was not actuated by malice in fact. We think, from an examination of the evidence, that the *223 jury might properly have come to the conclusion, from the defendant's own testimony, that she honestly believed that the plaintiff or his helper had taken her money, and that the letters in question were written in that belief and without malice in fact.
It is claimed in appellant's brief that the letter set out in the second count, which was written to the officer after the money was found, is beyond the pale of privilege, because the defendant was not then in the discharge of any duty or engaged in an effort to recover her money. But, as already pointed out, the question whether the letter was, or might be, if the facts pleaded in the answer were proved, a privileged communication was a question of law for the court; and it nowhere appears that the plaintiff made the claim in the court below, as a claim of law, that the letter was not privileged.
The motion to set aside the verdict is on the single ground that it is manifestly against the evidence. The question whether the letters themselves were privileged communications, on the facts pleaded, was a question of law for the court and is not brought up by this appeal.
We think that the letter set forth in the second count, although written after the money was found, must be dealt with as a part of the whole correspondence between the defendant and the officer. It is not very seriously disputed that the first letter to Sturtze, written before the money was found, is on the facts pleaded, a privileged communication. Sturtze was a constable, and the defendant appealed to him to investigate her loss with a view to get "evidence and threaten them with arrest." She was concerned more with using the law in terrorem than with the punishment of the supposed thief. Then, when the money was found, she again writes the officer, telling him that it is found, but *224 in a place where she never put it; that she will do no more about the matter; and that she is still satisfied that the plaintiff took it and brought it back again. Clearly this second letter would never have been written except for the first. The defendant was in a way bound to let the officer know that the money had been found, and if she said no more her letter would be taken as an admission that her former suspicions were mistaken. We think, under these circumstances, that the defendant, in writing to an officer already engaged in investigating the loss, was legally entitled, if acting honestly and without malice, to reaffirm her belief in the plaintiff's guilt, for the guidance of the officer in case it was, or might become, his duty to pursue the investigation with a view to criminal proceedings.
There is no error.
In this opinion PRENTICE, C. J., and THAYER, J., concurred.
Dissenting Opinion
The action consists of three separate counts in libel and one count in slander.
It could not be held that the verdict of the jury upon the issues presented under counts one and four, for libel, and count three for slander, might not reasonably have been rendered.
Count two recites that on March 31st, 1912, at Hamden, the defendant published a letter addressed to Frederick Sturtze as follows: "I wrote you a few weeks ago about some money we had stolen, and as I have heard nothing from you concluded that you haven't done anything about it. I write now to say we have found the money stowed away in a place where we would never have put it, so we think that after they found we suspected them, they returned it and hid it in that place, for Mr. Flanagan kept saying, `Hasn't *225 it been mislaid?' Of course we are very glad to get the money and shall do nothing further about it, although I am perfectly satisfied in my mind that Mr. Flanagan took it, for he acted guilty." And it further recites that the publication was false and malicious.
The defendant makes the first defense of her answer — privileged communication — the second defense of her answer to the second count. The first defense was made as an answer to all the counts; in reality it is a defense to the first count alone. That count recited that the defendant had published a certain libel of the plaintiff on March 5th, 1913, in a letter addressed to Frederick Sturtze. It set up that she, believing certain moneys belonging to her had been stolen, wrote to Mr. Sturtze, a peace officer of Hamden, requesting him as such peace officer to investigate the facts set forth in the letter recited in count one; and further, that her letter was written without malice against the plaintiff, in an honest endeavor to recover her property by making a complaint to the proper authority for his investigation, and was a privileged communication. The libel set forth in the second count was published in another letter and on another day, and constituted an independent cause of action. Therefore the so-called first defense — privileged communication — to the first count, has no relation to the cause of action set up in the second count.
The second count on the record stands unanswered. The opinion of the court concedes this. In the statement of facts accompanying the opinion the court say: "Technically, and by reason of verbal inaccuracy, the second count stands unanswered; but the intent to plead the same defense to the second count as was pleaded to the first is manifest, and the case was tried to the court below, and argued here, as if the issues bad been so formulated." *226
I do not find these admissions stated in the record. Nor do I find them in the brief or oral argument of the plaintiff. I think the court had no right to disregard the pleadings as made by the parties.
But if the defendant had pleaded privilege, as she may have intended, her plea would have been ineffective, just as the facts in evidence are ineffective, to establish that this letter was a privileged communication. The defamatory publication charging a crime, not being denied, stood admitted and made out a prima facie case against its author, and from its publication the law presumes it is false, imputes malice to its author, and presumes some damage. Atwater v. Morning NewsCo.,
If circumstances came to the knowledge of the defendant which caused her to believe a crime had been committed, it was her civic duty to state to the authorities what she knew and believed; on ground of highest *227
public policy her communication would be a qualified or conditionally privileged one. Eames v. Whittaker,
Moreover, since the defendant had an interest in the recovery of the money and the person to whom she made the communication had a duty to discharge respecting this, she had, so long as she did not act with express malice, the right to communicate to the peace officer the circumstances attending the loss of her money together with her suspicions and belief and every circumstance relevant to the detection of the theft. She must not make such a charge recklessly, or wantonly, or without circumstances reasonably arousing suspicion. Protection against the consequences of a defamatory charge through the privileged character of the charge requires an occasion of privilege and a privileged use of the occasion. Hassett v. Carroll,
The letter clearly charges the plaintiff with the theft of the defendant's money. It was not written the peace officer for the purpose of having him investigate the theft; nor in furtherance of any feature of the case. It was written primarily to have the peace officer desist from the investigation of the theft of which the defendant had complained to him over three weeks previously.
Belief in the charge did not justify her in its reiteration *228
upon withdrawal of it from the officer. She was not engaged in the performance of a public duty nor in the fair protection of her rights in renewing her charge against the defendant. She had no more right to libel the plaintiff in a communication to the peace officer than in one to any other person. Had her communication been made in furtherance of the detection of the theft or the prosecution of the crime, the occasion might have been a qualifiedly privileged one. "It must appear that they [the words] were spoken by defendant in the discharge of some public or private duty, legal or moral, and with that end and purpose in view, . . . and that they were spoken for the protection of such interests, and were relevant and proper in that connection. It must also appear that they were uttered in good faith, and in the honest belief that they were true."Quinn v. Scott,
This letter was not of this character, and in my opinion was not privileged; if this were not so, it is perfectly clear that the use made of the occasion was not privileged. The opinion holds that it was incumbent upon the plaintiff to have claimed in the court below that this letter was not privileged. On the contrary, as it seems to me, the defendant and not the plaintiff had the burden of proving the surrounding circumstances establishing the privilege. The opinion holds that the question whether the letter was privileged was a question not brought up by the appeal, since the case is before the court upon a motion to set aside the verdict as against the evidence. We must determine whether, on the issues raised, a cause of action was established. If there was a cause of action, unless the letter were privileged, the court cannot *229 determine whether the plaintiff was entitled to a verdict without passing upon the issue of whether this letter was privileged. To me this seems self-evident.
The opinion further holds that the defendant had the right, under the circumstances, "to reaffirm her belief in the plaintiff's guilt, for the guidance of the officer in case it was, or might become, his duty to pursue the investigation with a view to criminal proceedings."
This conclusion is, I believe, against all authority. The defendant was not engaged in the performance of a public duty, nor in the fair protection of her rights in renewing her libelous charge. She wrote to notify the constable to desist from his investigation. He had then been doing detective work for her in getting evidence, and expected her to pay him for his services. I repeat, her belief in the charge and her freedom from malice did not justify her renewal of the charge of theft to the public officer in discharging him from her service. In my opinion the verdict should be set aside and a new trial granted as to the second count.
RORABACK, J., although dissenting, did not concur in this opinion.