Baer v. Rosenblatt

• Decision Date: 28 October 1964
• Parties: Frank P. BAER v. Alfred D. ROSENBLATT.
• Court: New Hampshire Supreme Court

Page 773

203 A.2d 773

106 N.H. 26

Frank P. BAER v. Alfred D. ROSENBLATT.

Supreme Court of New Hampshire.

Argued June 2, 1964.

Decided Oct. 6, 1964.

Rehearing Denied Oct. 28, 1964.

Doherty & Dyer, Laconia, and McLane, Carleton, Graf, Greene & Brown, Stanley M. Brown, Manchester, for plaintiff.

Nighswander, Lord & Bownes, Conrad E. Snow, Hugh H. Bownes, Laconia, for defendant.

LAMPRON, Justice.

On April 15, 1950, the Belknap county commissioners who had the legal control of the Belknap Recreational Area at Gilford, hired the plaintiff, Frank (Fritzie) P. Baer, as supervisor of the area. Their written agreement provided that Frank P. Baer will 'supervise the collection and disbursement of all funds coming from or disbursed on account of said recreational area' (par. 5); 'transmit all funds accruing from said recreational area to said county commissioners' (par. 6); 'carefully examine all bills and invoices submitted relative to said recreational area and either approve or disapprove the same' (par. 7).

Under a renewed agreement, dated November 27, 1953, containing the above provisions, plaintiff continued as such supervisor until he was advised on June 23, 1959, that the county commissioners were exercising their right to terminate their contract effective July 10, 1959.

As of September 15, 1959, by virtue of Laws 1959, c. 399, the operation of this area was placed in a commission of five members. Dana S. Beane, Jr., was its first chairman. In November, 1959, the commission hired Warren Warner as manager of the area.

Since 1958, the defendant, a merchant in Laconia, regularly contributed a daily unpaid column in the Laconia Evening Citizen which was entitled 'Out Of My Head.' Some of these articles, starting with one published on December 11, 1958, referred to the plaintiff in conjunction with the Belknap Recreational Area.

Defendant's column, which is the basis of this action, was published January 29, 1960, when the plaintiff was no longer connected with the area. It read in part as follows:

'Been doing a little listening and checking at Belknap Recreational Area and am thunderstruck by what am learning.

'This year, a year without snow till very late, a year with actually few very major changes in procedure; the difference in cash income simply fantasic, almost unbelievable.

'On any sort of comparative basis, the Area this year is doing literally hundreds of per cent Better than last year.

'When consider that last year was excellent snow year, that season started because of more snow, months earlier last year, one can only ponder following question:

'What happened to all the money last year? and every other year? What magic has Dana Beane and rest of commission, and Mr. Warner wrought to make such tremendous difference in net cash results.'

On March 9, 1960, the plaintiff instituted this action of libel alleging that the above article could be and was understood to mean 'that the difference in the net cash results of the income of said Area was due because the plaintiff had committed larceny and that said money was stolen or embezzled or converted by the plaintiff to his own use,' and that 'said false, scandalous, malicious and defamatory libels were calculated to bring plaintiff into hatred, contempt, ridicule.'

On March 6, 1963, approximately three years after plaintiff instituted this action, the defendant moved for a change of venue. He based his motion on the fact that he 'as a columnist has frequently made forthright, caustic, and barbed remarks about many affairs in the City of Laconia and in Belknap County, including * * * the management past and present of the Belknap County Recreation Area' and that his remarks 'have undoubtedly ruffled the feelings of many people in Belknap County and have made him an object of antagonism by many people in Belknap County.' 'Some people admire his forthright comments * * * and many other people dislike him intensely for the comments.' He alleged that for this and other reasons it was probably impossible he would receive a fair and impartial trial in Belknap county.

The Superior Court has authority to change the venue in an action. RSA 507:11; Cochecho R. R. v. Farrington, 26 N.H. 428. A change should be made if there is probable ground to apprehend that a fair and impartial trial cannot be had in the particular county. Hilliard v. Beattie, 58 N.H. 112. This is a matter within the discretion of the Trial Court whose determination will not be disturbed unless a plain abuse of that discretion is shown. Whitcher v. Union Grange Fair Association, 77 N.H. 405, 407, 92 A. 735. The record does not compel a conclusion that there was abuse. State v. Small, 99 N.H. 349, 352, 111 A.2d 201.

We agree with the statement in defendant's brief that 'it seems clear that the questions of whether or not the plaintiff was within the orbit of the words of the article and whether the article imputed wrong-doing to the plaintiff were properly left for jury determination.' As it could be found that the newspaper article complained of was defamatory of the plaintiff and damaging to him, the defendant could properly be found liable unless the publication was justified or excused.

Justification is established if the facts stated are true and are published with a justifiable motive. Hutchins v. Page, 75 N.H. 215, 72 A. 689, 31 L.R.A.,N.S., 132; Changon v. Union-Leader Corp., 103 N.H. 426, 437, 174 A.2d 825. There was ample evidence to warrant a finding by the jury that the defamatory statements of facts made in this column were not substantially true and that the comments made thereon were unjustified. Restatements, Torst, s. 582, comment e; Prosser, Torts (2d ed.) s. 96, p. 632.

'Even though a defendant cannot justify the publication because it can be found to be untrue he may excuse it by showing it was privileged. A conditional privilege, which is what is claimed here, is established if the facts, although untrue, were published on a lawful occasion, in good faith, for a justificable purpose, and with a belief, founded on reasonable grounds of its truth.' Chagnon v. Union-Leader Corp., supra, 103 N.H. 438, 174 A.2d 833.

Statements of facts and comments based thereon made by the defendant about the management of the Belknap Recreational Area could be found to constitute a lawful occasion and the basis of a privilege. However they would constitute a lawful occasion and a privilege only if they were published in good faith and with a belief, founded on reasonable grounds, of their truth. State v. Burnham, 9 N.H. 34; Lafferty v. Houlihan, 81 N.J. 67, 71, 121 A. 92. A court, therefore, cannot rule that a communication is privileged in the public interest without assuming the conditions on which it is held to be privileged, namely, that it was made with good motives and upon probable grounds of its truth. Lafferty v. Houlihan, supra, 81 N.H. 72, 122 A. 92. Where, as in this case, the motives of the defendant and his basis for believing his statements to be true were both in controversy, the Trial Court properly denied defendant's motion that it rule before trial that his article, in the absence of malice or bad faith, was privileged in the public interest.

For the same reason the Trial Court properly refused defendant's request that the jury be charged as a matter of law that there was a lawful occasion for the publication of defendant's article. An examination of the Court's charge in its entirety reveals that the jury was properly instructed on these issues.

The law is well established that a defamatory statement made with malice cannot be excused as privileged. Chagnon v. Union-Leader Corp., 103 N.H. 426, 438, 174 A.2d 825. Also when the element of malice enters into the wrong the rule of damages is different and more liberal. Bixby v. Dunlap, 56 N.H 456, 462, 463. The burden of proving malice to defeat the defense of privilege as well as to invoke the more liberal rule of damages is on the plaintiff. Hutchins v. Page, 75 N.H. 215, 72 A. 689, 31 L.R.B.A.,N.S., 132; Saladino v. Gurdy, 80 N.H. 211, 116 A. 436; 1 Harper & James, Law of Torts, s. 5.27, p. 455. The Trial Court properly defined malice in its charge to the jury as 'ill will, evil motive, intention to injure or a wanton or reckless disregard of the rights of others. Malice * * * may consist of the intentional publication of defamatory matters with a reckless disregarded of the rights of others, and it and consist of willfully doing an act or a willful neglect of an obligation which the writer knows is liable to injure another, regardless of the consequences, even though there is no actual intention to hurt or harm an individual.' Chagnon v. Union-Leader Corp., supra; New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964).

The defendant stated in part in the article complained of 'Been doing a little listerning and checking at Belknap Recreation Area and am thunderstruck by what am learning. This year, a year without snow till very late * * * the difference in cash income simply fantastic, almost unbelievable. On any sort of comparative basis, the Area this year is doing literally hundreds of per cent Better than last year. When consider last year was excellent snow year * * * one can only ponder following question: What happened to all the money last year? and every other year?'

Defendant testified that by 'literally hundreds of per cent Better' he meant to say that the cash income for 'this year' was more than twice but not necessarily more than three times what it was 'last year.' The jury could find on the evidence that on the figures available when defendant wrote his article there was very little difference in the cash income for the two years compared in defendant's column.

Defendant testified 'had I not been told that there was a great difference between that January and the other January, I would probably not have had occasion to write the article.' There...