Burns v. Telegram Pub. Co.

• Decision Date: 16 July 1915
• Citation: 89 Conn. 549,94 A. 917
• Court: Connecticut Supreme Court
• Parties: BURNS v. TELEGRAM PUB. CO.

94 A. 917

89 Conn. 549

BURNS

v. TELEGRAM PUB. CO.

Supreme Court of Errors of Connecticut.

July 16, 1915.

Appeal from Superior Court, Fairfield County; Joseph P. Tuttle and Lucien F. Burpee, Judges.

Action by George Burns against the Telegram Publishing Company. From a judgment for defendant, plaintiff appeals. No error.

David S. Day, of Bridgeport, for appellant. Thomas M. Cullman, of Bridgeport, for appellee.

RORABACK, J. This action was brought against the defendant to recover damages for the publication of an article in the Bridgeport Telegram, a newspaper published in the city of Bridgeport, in Fairfield county. The defendant interposed a demurrer to the sufficiency of the complaint, which was overruled. An answer was then filed, which admitted the publication of the article and denied the other allegations of the complaint. The answer also averred that the publication was in regard to a matter of public interest, and concerned public property and public-business, and was made by the defendant in good faith and without intent to impute to the plaintiff any fraudulent, dishonest, or criminal act, and was privileged. The complaint alleged that on February 4, 1914, the defendant published the following concerning the plaintiff:

"Burns Claim has the Fire Board Guessing.

"Charge Coming Now for Use of Gasoline.

Tanks Creates Some Sharp Comment.

"Ex-Fire Commissioner Burns, of 630 North avenue, served a notice on the board of fire commissioners that has had that body guessing for the past month and has since called for some rather pertinent remarks. Since the former commissioner has been retired from the board he has served notice on that body that they are given until April 1 to stop using some tanks on his premises for the storage of gasoline, or after that date if they do use them to pay him $20 a month for their use.

"Something less than a year ago, about 8 months, as nearly as can be ascertained, the fire department bought some 8,000 gallons of gasoline at a price of 10 cents a gallon, which was rather cheap. At that time Mr. Burns was a fire commissioner, and in his zeal to further the efforts of the board stated that he had two tanks on his premises that belonged to the Goodrich Company, formerly of this city, but then of New Haven, which they neglected to take away, and which the department could gladly have the use of, free of charge.

"Shrunk 1,000 Gallons.

"Some mechanics among the firemen cleaned the tanks and put faucets on one of them and they have been used since. Normally the department uses a thousand gallons of gasoline a month, and the supply in the tanks ran out over a month ago. Then the strange fact was discovered that the 8.000 gallons had shrunk a thousand gallons. This was rather surprising, as evaporation alone could scarcely be expected to account for that much of a shrinkage, even if the tanks were elevated, instead of underground.

"Since the supply was gone the department has been buying its gasoline as it was needed from the Standard Oil Company, and it is more than certain that the fire department will no longer use the tanks in the custody of Mr. Burns. There is a plan on foot, which the mayor is considering, of purchasing some large tanks, and store in them enough 'gas' to supply all city departments. The fact that Mr. Burns did not attempt to charge the city for the use of tanks until he was deposed as a member of the board caused considerable surprise in fire circles."

The complaint also averred that:

"The defendant meant thereby that the city of Bridgeport had been deprived of all or a part of said 1,000 gallons of gasoline mentioned in said publication by fraudulent, dishonest, or criminal acts of the plaintiff." "Said publication was false and malicious."

This court has defined libel as being:

"A false and malicious publication of a person, which exposes him to public ridicule, hatred, or contempt, or hinders virtuous men from associating with him." Donaghue v. Gaffy, 54 Conn. 257, 7 Atl. 552.

Odgers, in his work on Libel and Slander, ...