This action of tort, originally brought against the corporate defendant and two of its employees, Curley and Flynn, was submitted to the jury only against the corporate defendant, hereinafter called the defendant.
There was evidence of the following: The plaintiff was employed by the defendant as a member of its police force. On August 7, 1953, he was assigned to guard the defendant’s ullage house on C Street, South Boston. The ullage house was used to store broken crates of vegetables until they were sold at auction. Suspecting thefts from the ullage house, the defendant assigned two of its police officers, Curley and Flynn, to watch the house. From 10 p.m. on August 6 until approximately 5 a.m. on August 7 they watched the ullage house from their automobile, parked about 300 feet away. During this period they observed the plaintiff going from the ullage house to his car carrying packages. This occurred several times. On the last occasion they saw the plaintiff get into his car and drive it from the parking lot, where it had been parked, to C Street where, at a place near the end of the ullage house, he left it. Around 6 a.m., as a result of a conversation with Sergeant Hartnett (a police officer in the defendant’s employ), the plaintiff, accompanied by Hartnett, left the ullage house and “went out onto C Street where he observed . . . [Curley and Flynn] standing beside the plaintiff’s automobile.”
The plaintiff’s version of what happened thereafter is as follows: He saw ‘ ‘ Curley trying the doors of his car, and he observed four or five truck drivers standing on the sidewalk at about the center of his car.” He walked toward his car with Hartnett and when they were within twelve or fifteen feet from it “Curley said in a loud voice ‘Open up your car. We know what has been going on here during the night.’ ” The truck drivers were about six to eight feet away when Curley made this statement. Curley made it “in a very loud voice. He hollered it.” Again “Curley hollered ‘ Open up your car and take out the stuff that
The plaintiff, at Curley’s suggestion, shortly thereafter drove his car to yard 7, and Curley, Flynn and Hartnett followed. There the plaintiff opened his car and produced a bag with six potatoes, two heads of lettuce and a cantaloupe. The plaintiff was then told to drive to “8 House” where he stayed from 7 a.m. until 8:30 when he was informed that he had been dismissed from the defendant’s employ. The plaintiff testified that the property found in his car had been given to him in the ullage house by the owners. “ [N]o criminal complaint of any kind was issued against the plaintiff.”
It was agreed that Curley and Flynn were employees of the defendant on August 7, 1953, and were acting at that time within the scope of their employment as patrolmen.
The alleged defamatory statements were accusations of crime and were actionable without proof of special damage.
The judge, on the evidence, could rightfully have concluded, as evidently he did by entering a verdict for the defendant, that the alleged defamatory words were uttered in privileged circumstances. The plaintiff does not argue the contrary. His position is that (1) the privilege is not absolute but conditional; (2) it can be destroyed by proof of abuse of the privilege; and (3) there was sufficient evidence of such abuse as to require the submission of the case to the jury. As to the correctness of the first two propositions there can be no doubt. Gassett v. Gilbert,
It is settled that proof of actual malice will constitute an abuse of the privilege. See e.g. Gassett v. Gilbert,
But there may be an abuse of the privilege in the absence of actual malice. The privilege may be abused by an unnecessary, unreasonable or excessive publication of the defamatory matter. This principle has been well stated in Harper and James, Torts, where, at page 455, it is said, “Where a publication is privileged by reason of the circumstances and occasion on which it is made, the privilege may be so far abused by an unnecessary and excessive publication that the immunity is lost, i.e., the defendant has gone beyond the area allowed by the privilege and is no longer protected. Thus, if an occasion is privileged as to communications between certain parties, the privilege is lost if the communication is made in such a manner as to unnecessarily and unreasonably publish it to others, as to whom the occasion is not privileged.” For authorities in accordance with this view see Cooley on Torts (4th ed.) § 158; Hallen, Excessive Publication in Defamation, 16 Minn. L. Rev. 160, 161, 163; Newell on Slander and Libel (4th ed.) § 437; Prosser on Torts (2d ed.) pp. 627, 629; Restatement: Torts, § 604; 33 Am. Jur., Libel and Slander,
The question then is whether within the principles just stated there was evidence that would warrant a finding that the defendant abused the privilege. A majority of the court are of opinion that there was.
There was evidence that the accusations were made loudly and repeatedly in the presence of an increasing crowd of disinterested onlookers. In addition, the plaintiff testified that Flynn continued to make his accusations within the hearing of the bystanders even after he (the plaintiff) requested that they move to an available and less public place to carry on the investigation. While the privilege will not be defeated by the mere fact that the defamatory matter was incidentally overheard by disinterested persons (Brow v. Hathaway,
The conclusion reached makes it unnecessary to pass on the plaintiff’s exception to the exclusion of evidence. The plaintiff’s exceptions are sustained and judgment is to be entered on the verdict returned by the jury.
So ordered.
Notes
The counts against Curley and Flynn were "waived in open court after all parties had rested and after the attorney for the defendants had argued to the jury.”