Hodgkins v. Gallagher

122 Me. 112 | Me. | 1922

Deasy, J.

This is an action of tort for alleged slander. It comes to this court on report.

The plaintiff was in December, 1921 employed in the Mechanic Falls Post Office by Frank A. Millett, Postmaster. The defendant was a United States Post Office Inspector. Acting by authority of his office he directed Mr. Millett to dismiss the plaintiff from service in the post office. In this connection it is alleged in the writ that he said referring to the plaintiff, ‘ ‘He is a thief— He has stolen between eighty and one hundred dollars from the Athletic” (Association).

This allegation is supported by the testimony of Mr. Millett. The defendant denies using the above or any similar language, and also pleads privilege.

The defense of privilege if at all necessary is not sustained. The defendant’s privilege is a qualified privilege and is a defense only if the defamatory words were spoken in good faith, without actual malice (Sweeney v. Higgins, 117 Maine, 415) and with reasonable grounds for believing their truth. (Toothaker v. Conant, 91 Maine, 438; Elms v. Crane, 118 Maine, 264). The defendant was not actuated by malice. What he said was uttered in good faith. But the case does not disclose that he had any reasonable grounds for accusing the plaintiff of stealing. If he used the defamatory language as alleged, the defense of privilege is not established. But the defendant denies that he made use of the words charged. He admits that he directed the plaintiff’s removal because he was “not satisfactory in the service” but disputes that he in any form of words accused him of crime.

Strict proof is required of the utterance by the defendant of the words set forth in the writ so far as they are essential to the charge. Kimball v. Page, 96 Maine, 489. The burden is upon the plaintiff. The Postmaster Millett testifies that the words were spoken as set forth. The Post Office Inspector Gallagher as positively denies the speaking of the words charged or any others of similar import.

Gallagher is interested as a party. Millett is frankly a partisan of the plaintiff and naturally so as the plaintiff has been for some years a member of his household. Neither Millett nor Gallagher is corroborated; neither is impeached; neither is contradicted except by the other.

We see no reason to hold that the testimony of Millett outweighs that of Gallagher. It is difficult for any of us to remember spoken words after months or even days have passed. What we remember is not the words spoken, but our interpretation of their import and meaning.

There is no evidence in the case proving or tending to prove the commission of any criminal offense by the plaintiff. We decide the case on the ground that he has not shown by preponderance'of evidence that the defendant charged him with any Such offense.

Judgment for defendant.