1 N.Y.S. 280 | New York Circuit Court, Oneida County | 1888
The complaint is for slander and slanderous utterances charged to have been made by the defendant of and concerning the plaintiff.
The answer of the defendant is a general denial. And, for a further answer, he avers that said institution was, and for a long time previous to the alleged wrongs complained of had been, a corporation duly organized under the laws of the state. That he (defendant) was at that time, and for some time previous thereto had been, superintendent of said institution, and that the officers of the same were controlled and managed by a board of trustees, who appointed an executive committee, among the duties of which was to hire and discharge teachers, employes, and other attendants, and to care for its good and general welfare. At the time of the'commission of the grievances complained of, such executive committee consisted of Edward Huntington, B. J. Beach, D. P. McArd, John G. Bissell, and B. Huntington. That about the 19th day of January, 1878, there was received at his house, on the grounds of said institution, through the mail, a sealed envelope, bearing the Rome postmark, directed on the outside, in an apparently disguised handwriting, by a female hand, to “Mrs. Edward B. Relson, Rome, R. Y.,” the defendant’s wife. When opened, the envelope was found to contain a paper, partly printed and partly written, of a grossly vulgar and obscene character. Same was without signature. That he, defendant, was •well acquainted with the lady’s handwriting, and upon examination became satisfied that the address on the envelope was written by the plaintiff. That he thereupon submitted the same, without malice, but in good faith, and in the belief that plaintiff was the one who sent the same, as in duty bound to do, to said B. J. Beach, who was at the time chairman of said executive committee. Upon consultation with Beach, and in order to determine, if possible, who wrote the address on said envelope, it was concluded by him (Beach) to send the same, with certain handwriting known to be plaintiff’s, to J. E. Paine, an expert in regard to handwriting, of wide reputation, in the city of Rew York, to obtain his opinion. Same was sent, and Paine afterwards, and about February 12, 1878, made his report to Beach in writing, and to the effect that the same person who wrote the matter known to be plaintiff’s wrote the directions on the envelope. With this evidence of the plaintiff’s guilt, and on the 18th day of February, 1878, the executive committee had a meeting for the purpose of acting upon the matter, and said committee, being satisfied that the plaintiff was in fact the author of said communication, thereupon, by formal action, discharged the plaintiff as one of the employes of said institution. The answer further avers that his action in the premises was privileged; he acting in good faith and upon probable cause.
Upon the trial of the issues, it appeared that the Central Rew York Institution for Deaf and Dumb was a charitable corporation; that, during the
The plaintiff, in her testimony, states the following to have taken place at that time: “I went into the office, and stepped up to Nelson’s desk. Mr. Beach stepped forward, and handed me a letter, and said, ‘ You sent this.’ I took the letter in my hand, the one now shown me. Beach says, ‘Nelson says you sent this.’ I at first understood him to say to Mr. Nelson; I said I never sent it to Mr. Nelson. Beach says, ‘ You see it is to Mrs. Nelson.’ I said, ‘ I never sent it.’ Beach said it was a dirty, obscene letter sent to Mrs. Edward B. Nelson, and if I did not write it and send it, who did? I said I believed it was a contrived plan to get me out of the institution; that he had been trying to get me out, and this was his last resort. Beach said, ‘ Where were you on that day?’ I said, ‘I can’t tell you until I can find dates to show.’ Beach said: 11 know where you were; you were in Utica, and returned in the evening.’ I said: ‘I have been to Utica, but whether on that day or not I can’t tell until I find dates to show.’ Beach says: ‘ This is a plain postmark,—Rome.’ I said: ‘ If this is the day I was in Utica, I was not in Rome.’ Beach turned to Nelson, and said: ‘ You received this letter about 7 p. m., did you not? ’ Nelson answered, ‘ Yes; ’ and it was a dirty letter, and had cost him and his wife some pain, and he knew I wrote the letter. I then examined the envelope, and saw the writing, and it looked like Mrs. Randall’s, then a pupil in the institution. I took the printed slip out of the envelope. On the edge was a margin about one inch wide. There was some writing on it. I said it was Mr. Nelson’s handwriting; Mr. Beach stepped to my side, and snatched it out of my hand, and put it in his pocket, and said, ‘ It is not for you to read.’ ” The foregoing is, in substance, all the evidence given by the plaintiff, upon which the suggestion made that Nelson acted in bad faith, and without probable cause, in bringing the question of the authorship of the communication before the executive committee of said
The occasion of the communication by the defendant to the committee was privileged. He owed them the duty, and would have been derelict had he omitted to perform it. Odger, Sland. & Lib. 182. I was inclined to think upon the trial that this was an absolute privilege, and that any communication made by the defendant to the committee was a privileged one, and that no recovery could be had in any view of the case. When the case wTas before the general term, that court seemed to view the privilege as a qualified one, and that if it appeared or there was satisfactory evidence given of malice, bad faith, or a want of probable cause, that then the defendant might be liable;-and it was upon this interpretation of the law that cause was tried. The defendant held the position of superintendent of a public institution, and was responsible for the proper administration of its affairs, and especially for those relating to the moral as well as physical care and training of its inmates, subject, nevertheless, to the supervision and control of the board of trustees and its executive committee. Holding this responsible position, it was his duty, if he honestly believed that an employe under him had been guilty of conduct unbecoming her, and the position she occupied, to report the same to his superiors, the committee; and if, in making such report, he acted in good faith and with probable cause, although such suspicion turned out to be groundless, he would not be liable, since such action and communication was privileged, within well-settled rules. The occasion of the publication repels the inference of malice. Van Wyck v. Aspinwall, 17 N. Y. 192, and cases cited. In the case of Harrison v. Bush, 32 Eng. Law & Eq. 177, cited in the above case, Lord Campbell is made to say: “A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminating matter which without the privilege would be slanderous and actionable. Duty, in the proposed cause, cannot be confined to legal duty, but must include moral and social duties of imperfect obligation.”
The plaintiff, in her evidence, makes the defendant say, “I know you wrote it, ” in the presence of the committee. This utterance, had it been made to them, with the charge, would have been privileged, if any part of the communication was; and it was equally so when spoken to them in the plaintiff’s presence, authoritatively made a part of it; and this is so if the utterance can be regarded as a positive statement, rather than simply the expression of an opinion. I am disposed to think the latter is the true construction to be given it. In the case of Humphreys v. Stilwell, 2 Fost. & F. 590, it was held, when the defendant, who was a life governor of a public school, to which the plaintiff supplied butcher’s meat, stated to the servant of the school whose duty it
The relations existing between the plaintiff and defendant were friendly, as evidenced by the letters from her to him of date of July 11, 1877, and continued to November 5, 1877. No change in the feeling there exhibited is shown to have taken place, and no possible motive for the existence of malice on defendant’s part towards the plaintiff appears. The question involved did not of necessity require that it should appear that the plaintiff actually addressed and sent the matter.' The question is, had the defendant probable ground to believe she sent it? After the matter had been laid before the committee, and the suspicion created that the plaintiff was the guilty person, means were taken, and such I think as a prudent man under the circumstances would have adopted, to verify the truth of the same; and until that was secured, through the report of the expert, no charge was made, and no other or different action taken. When that came to hand, the plaintiff was summoned before the committee, and then she was charged by the chairman, Beach, with having sent the communication. The important question in the case is, did the defendant have probable cause to justify his action ? Unless there was evidence satisfactory to show that the defendant had some knowledge or reliable information that the plaintiff did not send the envelope, and therefore that he acted in bad faith and without probable cause, he was fully justified in what he did, and in doing it he incurred no liability to the plaintiff. The only evidence showing or tending to show this is that of the plaintiff, before referred to, that there was some writing on the margin of the inclosed paper which she thought was written by the defendant, and which was refuted by the evidence and in the manner before referred to. In my judgment, the jury must have misconstrued the evidence, or failed to give it its legitimate effect, in arriving at the conclusion they did. The verdict being, then, clearly against the weight of the evidence, but one duty is to be performed, and that is to set it aside, and grant a new trial. Conrad v. Williams, 6 Hill, 444.
The verdict, if allowed to stand, would be not simply unjust to the defendant, but as a precedent is one that would be likely to seriously interfere with a proper discharge of duty on the part of those innumerable persons who occupy relations similar to that of the defendant, and upon the due performance of which the welfare, and perhaps safety, of many depend. It would seem that less harm would likely arise from the adoption of a rule that communications of this nature are absolutely privileged than there will be in holding the privilege qualified, and that the party making it may be subject, as to liability, to the infirmity in memory of the complaining person, or to the
My conclusion is that the verdict should be set aside, and a new trial granted, with costs to abide the event. An order to this effect will'be entered.