Corsello v. Emerson Bros., Inc.

• Decision Date: 07 May 1927
• Citation: 106 Conn. 127,137 A. 390
• Court: Connecticut Supreme Court
• Parties: CORSELLO v. EMERSON BROS., INC.

137 A. 390

106 Conn. 127

CORSELLO v. EMERSON BROS., INC.

Supreme Court of Errors of Connecticut.

May 7, 1927

Appeal from Superior Court, New Haven County; Newell Jennings Judge.

Action for libel by Anthony E. Corsello against Emerson Bros Incorporated. Verdict and judgment for plaintiff, and defendant appeals from the denial of a motion to set aside the verdict and rulings on evidence. No error.

Newspaper reporter as agent of newspaper is conclusively presumed to have disclosed to principal information received in line of duty relative to libelous article.

Robert L. Munger, of Ansonia, for appellant.

Alfonse C. Fasano, of New Haven, for appellee.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.

WHEELER, C.J.

The jury might reasonably have found these facts: Dorothy Dziadik, a girl of 15 years of age, on September 2, 1925, in the office of the plaintiff, an attorney in good standing in Ansonia, signed and made oath to an affidavit which recited that Police Officer Shea of Ansonia had committed an indecent assault upon her on the evening of September 1st, as a result of which he had been placed under arrest on September 28th, released on bond, and the case against him continued. On September 30th, this girl went with Officer Shea and a friend to the house of an attorney and then signed and made oath to another affidavit retracting the charge made against Officer Shea. The following day the defendant about noon sent its reporter, Kelly, to the plaintiff, who informed the plaintiff that there was a terrible story in defendant's office about plaintiff giving or offering to give Dorothy Dziadik $5,000 to make charges against Officer Shea, whereupon the plaintiff replied that before publishing any comment or statement about the matter the newspaper should first permit him to read it, so that he might have an opportunity to make a statement, but that if any comment or statement were made about the plaintiff in the newspaper without first showing the statement to him, he would hold the newspaper responsible for any damages that might result from its publication. Thereafter Reporter Kelly came to him and told him he had reported his statement to his superior on defendant's staff. The article was published about 4 o'clock of the same afternoon without its having been shown to the plaintiff. It contained the matters we have recited concerning the first and second affidavits. The second of these affidavits also recited that the plaintiff came to her place of employment preceding the making of the first affidavit and requested her to go to his office that afternoon, and that in compliance with this request she went to his office and plaintiff requested her to make a statement against Officer Shea, which she refused to do. On several other occasions she says the plaintiff came to her place of employment and talked to her about Officer Shea and requested her to visit his office again, and that in response to this request she went to his office and later at the request of the plaintiff signed an affidavit which he did not read to her. The article concluded with the statement that " attorney Corsello, who returned from New Haven early this afternoon, when asked for a statement, stated he had no comment to make." The headlines of the article were:

" Girl Denies Making Charges Against Officer Shea--Fifteen Year Old Shelton Miss, Who Was said In an Out of Town Sunday Newspaper to Have Made Charges of Improper Conduct Against the Officer, Makes Affidavit in Which She Declares the Charges Baseless--Says Attorney Corsello Induced Her to Sign Paper Which Was Not Read to Her."

The jury might reasonably have found that the facts stated in the second affidavit were false, and those stated in the first affidavit, upon which the officer was arrested, were true.

The charge against the plaintiff in this article is that he induced this girl to sign a false affidavit charging a police officer with a serious crime, and that, too, without having read the affidavit to her. Such an accusation was a serious reflection upon the professional conduct and reputation of this attorney and, if true, constituted a breach of the Code of Professional Ethics whose rules he was bound to observe, and for breach of which he might have been disciplined to the extent of being disbarred from the practice of his profession. It was also an accusation which might have subjected him to prosecution for the commission of a crime. The trial court was right in instructing the jury that the accusation was libelous per se. The jury could not reasonably have found upon the facts of record other than that the accusation was false. As we understand the plaintiff's brief, he admits, for the purposes of this case, that the occasion of the publication of this article was one of conditional privilege. We shall so treat it. The subject-matter of this article concerned the public order; one of the police officers of the community in which the defendant's newspaper circulated was under arrest upon a charge made in one of these affidavits and retracted in the other. Everything which related to the charge against the police officer and which tended to throw light upon it or upon these affidavits was legitimate comment. The making and manner of making of the affidavits were relevant subjects of newspaper inquiry. If the accusation as made against the plaintiff attorney were true, there can be no question that it was within the province of this newspaper to publish it. But it could not use the occasion of its privilege to abuse the privilege.

Under General Statutes, § 5799, the defendant had the right to give proof of its intention, which it has done. The plaintiff had open to him two courses, either to request a retraction of the charge in as public a manner as that in which it was made, which he did not do, or to prove that the charge was made with malice in fact. Unless the plaintiff has pursued one or the other of these courses, the statute provides that " he shall recover nothing but such actual damage as he may have specially alleged and proved." We say in Arnott v. Standard Association, 57 Conn. 86, 92, 17 A. 361 (3 L.R.A. 69):

" The cited statute was doubtless enacted in the interest of publishers of newspapers. It intended to farnish them a measure of protection in the publication of current news, criticisms upon public men and measures, and comments upon matters of public interest."

It did not intend to give them opportunity to abuse the occasion of privilege which might on proper occasion be theirs, nor to give them protection in the privilege of repeating defamatory publications when done with " malice in fact. " It did intend that, upon proof of such intention, " it should rebut the presumption of malice raised by the law from the publication of a false and defamatory article, and put upon the plaintiff the burden of proving by other and additional evidence an improper and unjustifiable motive." Arnott v. Standard Association, 57 Conn. 86, 92, 17 A. 361 (3 L.R.A. 69).

Both parties are in agreement that an occasion of privilege having been shown the liability of the defendant turns upon whether the plaintiff has established that the defamatory article was published by the defendant with malice in fact. As used in the statute malice in fact neither means a willful intention to injure another, nor hatred or ill-will towards him, but merely that the false publication is actuated by an...