Barry v. McCollom

• Decision Date: 29 October 1908
• Citation: 81 Conn. 293,70 A. 1035
• Court: Connecticut Supreme Court
• Parties: BARRY v. McCOLLOM.

70 A. 1035

81 Conn. 293

BARRY

v. McCOLLOM.

Supreme Court of Errors of Connecticut.

Oct. 29, 1908.

Appeal from Superior Court, Hartford County; Milton A. Shumway, Judge.

Action for libel by Helen Barry against Edward. D. McCollom. Judgment for plaintiff, and defendant appeals. Error, and new trial ordered.

Charles E. Perkins and Herbert O. Bowers, for appellant.

Benedict M. Holden and Hugh M. Alcorn, for appellee.

BALDWIN, C. J. In May, 1907, the plaintiff was the teacher of a public district school in the town of South Windsor, and the defendant was the superintendent of all the public schools in that and another town. One of his duties was to report to the board of school visitors in each town in regard to the efficiency and qualification of the teachers employed in the different schools. He made a written report to the secretary of the South Windsor board, in which are statements concerning the plaintiff which were libelous, unless protected as a privileged communication. She brought this action, alleging a publication of these statements, and that they were false and malicious. His answer denied that they were false and malicious, set up the official relations of the parties and his consequent privilege, and also averred the truth of everything contained in the report. In the charge to the jury, the trial court, after stating that the defendant could claim the benefit of protection for whatever was contained in the report by a conditional or qualified privilege, and that the controlling question for them to decide was whether he published it in good faith, without any improper or unjustifiable motive, proceeded thus: "The defendant is not ebliged to prove the words were in fact true, but he must prove that he believed them to be true, and had reason to believe them to be true, and that they were published in good faith, and with no intention and purpose on his part of injuring the plaintiff, but with an intention of performing his duty* in reporting to the school board of South Windsor what he believed to be true, and had good reason for believing to be true. * * * In order to find in favor of the plaintiff in this case, you must find from the evidence the existence of some improper and unjustifiable motive on the part of the defendant when he made the report in question. The defendant may have arrived at conclusions without sufficient evidence, but the privilege protects him from liability in this suit on that ground until the plaintiff has overcome the presumption of good faith by proof of malice in fact, as she assumes the burden of proof of the existence of malice by other proof that the presumption which arises from the mere publication of the defamatory matter. * * * Now, in determining his good faith, you must ask yourselves upon what evidence did he make these statements. He is relieved by reason of the position which he occupied from the ordinary duty of a person who makes slanderous or libelous statements to prove their exact truth. He is entitled to be relieved from liability if he honestly believed them to be true, and made them in good faith. * ?* If the facts stated in the report or any of them imputing unfitness to teach on the part of the plaintiff, Miss Helen Barry, are not true, and the defendant knew they were not true, then the conclusion that he acted in bad faith is almost irresistible. But, if the defendant did not know the statements in the report were untrue, then you should ask yourself the question whether he had reasonable grounds for believing them to be true, and, if you find that lie did, you would be justified in finding a verdict in his favor. But, if you find that he had not reasonable grounds for believing His statements to be true, you would be justified in finding a verdict in favor of the plaintiff." The jury were thus correctly instructed at one point in the charge that the defendant was protected by his privilege if he honestly believed his statements to be true and made them in good faith, and incorrectly Instructed at other points that he must have had "good reason" or "reasonable grounds" for believing them to be true, and also was bound to prove that he published them with no intention and purpose of injuring the plaintiff. The necessary and inevitable effect of such a report was to in jure the plaintiff. It charged her with faults so serious that those charged with the duty of employing her or re-employing her as a teacher, if they gave credit to them, would naturally discharge or decline to re-engage her. The jury could not fail to find that the defendant must have known this, and therefore that he intended to injure her, for the word "injury," as generally used,...