Fahr v. Hayes

• Decision Date: 27 February 1888
• Citation: 50 N.J.L. 275,13 A. 261
• Parties: FAHR v. HAYES.
• Court: New Jersey Supreme Court

13 A. 261

50 N.J.L. 275

FAHR

v. HAYES.

Supreme Court of New Jersey.

February 27, 1888.

(Syllabus by the Court.)

Action for slander by August J. Fahr against Henry Hayes. Tried at circuit court, Essex county, before Justice DEPUE.

On rule to show cause why a verdict for the plaintiff should not be set aside.

Argued November term, 1887, before the Chief Justice and REED, MAGLE, and DIXON, JJ.

Mr. Kalisch, for plaintiff. Mr. Stevens, for defendant.

DIXON, J. The plaintiff sued the defendant for slander, uttered on April 15, 1886, in the office of George Thoma, Jr., at the corner of Broadway and Cortlandt street, New York. The words used are said by the plaintiff to have been as follows, on direct examination: "You thief, you! Don't you show your face in Maiden Lane any more. You stole two chains from my factory, and you are indicted; within a few days from now you are going to state's prison. What would you [the by-standers] think of this man, if he was to leave your office and have two watches in his pocket?" And on cross-examination: "You thief, you! You don't show your face in Maiden Lane. You have been arrested for stealing gold chains. What would you [the by-standers] think of this man if he was to leave this office, and you would find two watches in his pocket?" The circumstances which led up to the utterance of the words were these: The defendant's firm, Wheeler, Parsons & Hayes, had a jewelry factory in Newark, and an office in 62 Maiden Lane, New York. The plaintiff was a peddler of jewelry, and for several years prior to March, 1886, had bought jewelry on credit at the defendant's factory. Jerome W. Simpson, who was manager of the factory, reported to the defendant that 13 gold chains had been missed in the factory between February 1 and March 6, 1886. On March 18, 1886, he told the defendant that he had found the party who had taken the chains; that on the day before the plaintiff had been at the factory, had looked at the roll of chains which Simpson had counted and weighed before the plaintiff came in, and that when the plaintiff had left chains were gone. On the evening of March 22, 1886, Simpson told the defendant that on that day the plaintiff had come to the factory for chains; had been shown a roll; had selected eight to be taken on credit; had then left the factory with the eight; that the roll had then been examined, and two other chains were lacking; that the chief of police of Newark had been at once notified; that he had pursued the plaintiff; had arrested him upon the street; and had found the eight chains in his satchel, and the two chains loose in his overcoat pocket. The chief of police confirmed the defendant Simpson's statement with regard to the arrest and the finding of the chains upon the plaintiff, and the defendant had formed an assured belief of the plaintiff's guilt. On April 15, 1886, the plaintiff, being on bail to answer for the larceny, went to Mr. Thoma's office to purchase jewelry on credit; and being asked by Mr. Thoma with whom he had been dealing, produced, among others, many bills of Wheeler, Parsons & Hayes, showing his credits with that firm, and told Thoma that he was arrested, accused of stealing chains at their factory, but was innocent. Thoma then took the plaintiff's card, and went over to the defendant's office, where, according to the testimony of Mr. Thoma, which is substantially uncontradicted, the following colloquy took place between himself and the defendant: "Mr. Hayes, this man, [showing the plaintiff's card,] refers me to you." The defendant said: "What, this man? That scoundrel has cheek enough to send over to me for reference!" Thoma replied, "Yes." Defendant asked, "Is he over there now?" Thoma answered, "Yes; come over with me." Defendant said, "Well, I am too willing to go over with you." Thoma and the defendant thereupon went to Thoma's office, where the alleged slander was then uttered, in presence of Thoma and others, who had desks in the same room. Before this time the accusation against the plaintiff had been brought to the attention of the grand jury of Essex county, who on April 19, 1886, presented an indictment against him for the crime. The plaintiff obtained a verdict at the circuit, which is now before us on a rule to show cause.

The defendant insists that the jury should have been directed to find a verdict for him, on the ground that the alleged slander was a privileged communication. The question is whether the defendant's statements come within that class of communications which is regarded in law as having a qualified privilege. In order to bring a case within this class prima facie, the burden is on the defendant to show—First, that the occasion was privileged; second, that the statement was made under an honest belief in its truth. It is unquestioned law that when one person applies to another for credit, and the latter seeks information from a third as to the propriety of giving credit to the applicant, a privileged occasion arises for communications bearing upon that subject. Ormsby v. Douglass, 37 N. Y. 477; King v. Patterson, 49 N. J. Law, 417, 9 Atl. Rep. 705. These were the circumstances of the present case: The plaintiff applied to Thoma for credit. Thoma sought information from the...