Dennehy v. O'Connell

• Decision Date: 28 May 1895
• Citation: 33 A. 920,66 Conn. 175
• Court: Connecticut Supreme Court
• Parties: DENNEHY v. O'CONNELL. ROCHE v. SAME.

33 A. 920

66 Conn. 175

DENNEHY

v. O'CONNELL.

ROCHE

v. SAME.

Supreme Court of Errors of Connecticut.

May 28, 1895.

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

Actions by Jeremiah Dennehy and John Roche against Michael O'Connell for libel. There were findings and judgments for the plaintiffs for $800 and $700, respectively, and defendant appeals. Affirmed.

Defendant, Michael O'Connell, was prosecuted and convicted in the city court for illegally selling liquors. On appeal to the court of common pleas, the jury disagreed on a trial held on November 6 and 7, 1889, and the case was dismissed. Afterwards said Michael O'Connell preferred charges against Jeremiah Dennehy and John Roche, who were members of the police department of the city of New Haven, before the board of police commissioners, charging them with perjury in the prosecution against him in a court of common pleas. The plaintiffs were summoned before said board, and tried upon said charges. The trial continued through several sessions of said board held in February and March, 1890. The defendant appeared, and testified, and then claimed that plaintiffs had on the trial of said court of common pleas committed perjury. The plaintiffs were discharged by said board, and afterwards brought this action for libel.

The complaint in the first case is as follows: "(1) The plaintiff is, and for more than three years last past has been, a policeman under the police department of the city of New Haven. (2) On February 6, 1890, the defendant published in certain charges preferred by him against the plaintiff before the board of police commissioners of the city of New Haven, in a certain written document purporting to be charges against the plaintiff, and addressed and delivered to the board of police commissioners of the city of New Haven, the following words concerning the plaintiff: 'One Jeremiah Dennehy and one John Roche, then and now policemen of said city, testified at said trial [meaning a certain trial had in the court of common pleas, criminal side, held at New Haven, on November 8, 1889, wherein the defendant was charged with unlawfully selling liquors at No. 227 Chapel street, in said city of New Haven, on Sunday, the 20th day of October, 1889] that they entered said premises on Sunday, about four o'clock in the afternoon, and found a pipe with faucet connected therewith in a certain bedroom, and said Dennehy testified that he drew beer from said faucet. All of said testimony was false, and known by both said policemen to be untrue,' —a copy of said written document containing said publication being the Exhibit A now on file in this cause. (3) The defendant meant thereby that the plaintiff had willfully and deliberately committed perjury in so testifying in said court of common pleas. (4) Said publication was false and malicious, and was known by the defendant to be untrue, and was published by the defendant with the deliberate purpose and intention of injuring the plaintiff, and causing his dismissal from said police department. The plaintiff claims damages." etc. Defendant interposed a demurrer to the complaint, on the ground that the writing declared upon was a privileged communication. The demurrer was overruled, and defendant answered, alleging that the allegations relating to the plaintiffs, appearing in said Exhibit A, annexed to said complaint, were true.

The court found, inter alia, as follows: "(14) I find that the defendant knew the plaintiff testified in said court of common pleas to the truth, and that the charges which the defendant published to the board of police commissioners, as set forth in Exhibit A, and which are alleged in these complaints, were false. (15) On October 28, 1889, the defendant began a suit against Dennehy, upon a groundless cause of action, for the sum of $505.15, for the purpose of showing in the trial in the court of common pleas that prior to October 20, 1889, Dennehy had had a dispute with the defendant regarding the subject-matter of this suit of October 28th; and, upon the trial herein, the defendant offered, in substantiation of his bill of particulars in said suit of October 28th, false and fraudulent entries upon his journals and ledgers of transactions which never took place, and testified to dealings with Dennehy none of which ever took place. * * * (19) I find that said charges of perjury as published by the defendant in Exhibit A were false, and then known to the defendant to be false, and that in publishing said charges the defendant acted with wanton and corrupt malice and deliberation, and published the same for the purpose of disgracing the plaintiffs, and securing their dismissal from the police force. (20) Upon the cross-examination of the plaintiff Dennehy he was inquired of as follows: 'Q. Didn't you and he have some dispute about a liquor bill that he claimed that you had run up over there in Blatchley avenue at that time? A. When? Q. Why, in 1889. * * * A. Oh, there was a bogus suit brought against me at that time by Michael O'Connell for $505.15, or something of that kind, but I never had a dispute, and never had a conversation with him, not I never owed him any bill. I never had any dealings with him. * * * Mr. Stoddard: The records will show it won't they? Mr. Webb: Well, we will lay in the file in the suit of O'Connell against Dennehy.' * * * (21) The plaintiffs offered in evidence the testimony of Charles F. Bollmann. * * * Upon cross-examination of the witness, he was asked if he was the plaintiff in the case of Bollman v. Loomis, reported in the 41st volume of Conn. Reports. The plaintiffs objected. The defendant's attorney claimed it, and stated that, if the witness answered in the affirmative, he should offer such case in evidence to affect the credibility of the witness. The court excluded the question, and the defendant duly excepted. (22) Upon the trial the defendant took the stand, and was inquired of as follows: 'Q. I will ask you now when was the first time that you ever heard that there was a claim made that there was a pipe came up through that room? A. That very day in the city court. In the police court. Q. Now, I will ask you if at your request your counsel asked the judge to go down there and look at the premises that day? (Objected to by plaintiff. Claimed to show that the instant the claim was made, and before opportunity for change, the defendant requested the judge trying the cause to go and look at the premises, to determine from inspection whether there was any pipe there, or evidence of any. The court excluded the question, and the defendant duly excepted.)' (23) The plaintiff offered the testimony of one McDonald that he had placed a pipe in said room by cutting out a piece of said floor. Upon the cross-examination, he said that said...