Blakeslee v. Carroll

• Decision Date: 06 March 1894
• Citation: 29 A. 473,64 Conn. 223
• Court: Connecticut Supreme Court
• Parties: BLAKESLEE et al. v. CARROLL.

29 A. 473

64 Conn. 223

BLAKESLEE et al.

v. CARROLL.

Supreme Court of Errors of Connecticut.

March 6, 1894.

Appeal from superior court, New Haven county; George W. Wheeler, Judge.

Action by Charles W. Blakeslee & Sons against Anthony Carroll for damages for slander. Judgment for plaintiffs. Defendant appeals. Reversed.

The words were spoken before a committee of the board of aldermen of New Haven appointed to investigate certain charges against the board of public works of that city. Plaintiffs were general contractors for public works, and defendant a sewer contractor. The words were as follows: "I may be poor; I don't own as much money as the Blakeslees; but I tell you, you see the city property go up there, and see the Blakeslees' yard; see the cobble stones and paving stones belonging to the city; look at the city year book, and see how much they drew out of it; no wonder they be rich; and why cast reflections on my name, when I do my work?" By these words, as plaintiffs charged, defendant "meant to be understood, and was understood by those who heard him, to mean that the plaintiffs did not honestly obtain said cobble stones and paving stones, and that they had either stolen the same, or they had fraudulently obtained them by collusion with the board of public works; and that they had unlawfully taken into their possession and unlawfully appropriated to their own use a large quantity of paving stones and cobble stones, the property of the city of New Haven, with an attempt to defraud said city."

William L. Bennett, for appellant. Rufus S. Pickett, for appellees.

TORRANCE, J. This is an appeal by the defendant from a judgment in an action of slander. The complaint sets out the alleged slanderous words in full, and alleges, in substance, that they charge or impute a crime, and are false and malicious. The defendant in his answer, after admitting that he uttered the words set out in the complaint, but denying that they had the meaning therein ascribed to them, alleged, in substance— First, that they were true, and not false and malicious; second, that "said words were spoken by the defendant as a witness testifying under oath before a committee of the board of aldermen of the city of New Haven, a body having power through their presiding officer to compel the attendance and testimony of witnesses before them by the issue of subpoenas and the administration of oaths in the manner and according to the rules governing the same in courts of justice;" third, that "said words were spoken by the defendant as a witness at a certain hearing or investigation held by the board of aldermen of the city of New Haven, sitting as a committee of the whole, concerning the performance by the board of public works of said city, as then constituted, of the duties imposed upon said board of public works; and in connection therewith concerning the granting of contracts to persons connected with the government of the city of New Haven, and serving upon any of the boards of said city;" and "that it was the duty and privilege of the defendant, not only as a person employed and making his living in constructing sewers, but as a citizen interested as such in the good and economical government of the city, to bring to the attention of said board of aldermen at said hearing such matters as were believed by him to be true, and as were pertinent and relevant to the matters under consideration by said board; and that the words so uttered were pertinent and relevant, and were uttered without malice and in good faith."

It is quite evident from the record that the main contention between the parties in the court below related to the question whether the occasion upon which the alleged slanderous words were uttered was what is called a "privileged occasion," either absolutely or conditionally; and, if the latter, whether the defendant had exceeded his privilege, or had been influenced by actual malice; and the questions involved in the present appeal relate almost entirely to the same matters. The reasons of appeal are somewhat numerous, assigning errors in the rejection of evidence, in the refusal of the court to charge certain requests, and in certain parts of the charge as given; but it is handly necessary to consider them all separately or in their numerical order. One of the questions presented, and one that it seems well to consider first, is whether the occasion upon which the words in question were uttered was one of absolute privilege, as it is called, or only one of conditional privilege. It is settled law that in actions of slander and libel the defendant is permitted to show, if he can, that the circumstances under which the defamatory words were published were such as to shield him from liability for what would otherwise be an actionable wrong. In such cases the occasion of the publication is, for the sake of common convenience and in the interests of society, said to free the defendant from the liability that would otherwise be imposed upon him, and is called a "privileged occasion." These occasions are usually divided into two classes—those absolutely privileged, and those conditionally privileged. The general rule is that defamatory words spoken upon an occasion absolutely privileged, though spoken falsely knowingly, and with express malice, impose no liability for damages recoverable in an action of slander; while such words spoken upon an occasion only conditionally privileged impose such liability, if spoken with what is called express malice. In the former class the freedom from liability is said to be absolute or without condition, as contrasted with such freedom in the latter class, where it is said to be conditioned upon the want or absence of express malice. The freedom from liability in the first class is founded upon the principle that in certain cases it is "advantageous for the public interest that persons should not be in any way fettered in their statements," but should speak out the whole truth, freely and fearlessly. Odgers, Sland. & L. *p. 186. This class is comparatively a narrow one, and is, speaking generally, strictly confined to legislative proceedings, judicial proceedings in the established courts of justice, acts of state, and acts done in the exercise of military and naval authority. In judicial proceedings the protection of the rule extends to judges, counsel, and witnesses. "I take this to be a rule of law not founded, as is the protection in other cases of privileged statements, on the absence of malice in the party sued, but founded on public policy, which requires that a judge in dealing with the matter before him, a party in preparing or resisting a legal proceeding, and a witness in giving evidence in a court of justice, shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel." Kennedy v. Hilliard, 10 Ir. C. L. 195; Munster v. Lamb, 11 Q. B. Div. 588; Seaman v. Netherclift, 1 C. P. Div. 540; Dawkins v. Lord Rokeby, L. R. 7 H. L. 744. In the case last cited, which was the case of a witness before a military court of inquiry, Lord Penzance thus states the foundation of the rule: "I wish to say one word on the supposed hardship of the law which is brought into question by this appeal. It is said that a statement of fact of a libelous nature which is palpably untrue—known to be untrue by him who made it, and dictated by malice—ought to be the subject of a civil remedy, though made in the course of a purely military inquiry. This mode of stating the question assumes the untruth and assumes the malice. If by any process of demonstration, free from the defects of human judgment, the untruth and malice could be set above and beyond all question or doubt, there might be ground for contending that the law of the land should give damages to the injured man. But this is not the state of things under which this question of law has to be determined. Whether the statements were, in fact, untrue, and whether they were dictated by malice, are, and always will be, open questions, upon which opinions may differ, and which can only be resolved by the exercise of human judgment. And the real question is whether it is proper on grounds of public policy to remit such questions to the judgment of a jury. The reasons against so doing are simple and obvious. A witness may be utterly free from malice, and may yet, in the eyes of the jury, be open to that imputation; or, again, the witness may be cleared by the jury of the imputation, and may yet have to encounter the expense and distress of a harassing litigation. With such possibilities hanging over his head, a witness cannot be expected to speak with that free and open mind which the administration of justice demands."

The existence of what is called an absolute privilege at common law in the case of a witness testifying in a court of law is generally recognized by the courts of this country, although they are not...