Ely v. Mason

• Decision Date: 30 November 1921
• Citation: 115 A. 479,97 Conn. 38
• Court: Connecticut Supreme Court
• Parties: ELY v. MASON.

115 A. 479

97 Conn. 38

ELY v. MASON.

Supreme Court of Errors of Connecticut.

November 30, 1921

Appeal from Superior Court, New Haven County; Isaac Wolfe, Judge.

Action by R. Maynard Ely against Lawrence Mason, for slander and libel. Judgment for defendant, and plaintiff appeals. No error.

In an action for libel and slander, based on a charge that defendant had accused plaintiff of being a thief, evidence that defendant had prepared a list of articles claimed to have been stolen, and exhibited it to plaintiff's husband, held not to subject defendant to cross-examination as to whether he believed the articles to have been stolen by plaintiff, and it was within the discretion of the court to permit cross-examination as to such matter at that point.

Albert McC. Mathewson, of New Haven, for appellant.

Frederick H. Wiggin, of New Haven, for appellee.

CURTIS, J.

This is an action for slander and libel. The defendant pleaded a general denial, and under that plea claimed that the words uttered by him were a privileged communication. There is no controversy that the words uttered were actionable per se, as they charged the plaintiff with larceny.

The first question on this appeal that presents itself for decision is whether the plaintiff's request for a correction of the finding should be granted.

An examination of the finding and the evidence presented in the case discloses that the changes sought by the plaintiff are based on the claim that under conflicting evidence the court should have found certain subordinate facts in accord with the way the plaintiff claims the evidence supports, rather than in the way the court finds that the evidence supports.

It was within the province of the trial court to determine what credit and weight should be attached to the evidence presented and to determine the facts.

The requests of the plaintiff for a correction of the finding are denied. The claim made in the fifth and sixth reasons of appeal, to the effect that under a general denial the claim that a defamatory communication was a privileged communication could not be made, is abandoned in view of our law as set forth in Atwater v. Morning News Co., 67 Conn. 504, 34 A. 865; Anderson v. Cowles, 72 Conn 335, 44 A. 477, 77 Am.St.Rep. 310.

Apart from the questions as to rulings upon the admission of evidence to be considered later, the fundamental error claimed by the plaintiff is that under the facts found the court erred in holding that the defamatory statements about the plaintiff made by the defendant were privileged communications.

The facts as found by the court are in brief as follows:

From February 1, 1917, until about March 1, 1920, the defendant as a lessee of the plaintiff's husband, was a tenant of several adjoining rooms in the home of the plaintiff and her husband. These rooms the defendant kept locked when he was absent. The plaintiff and her husband had a key to the rooms to use in the daily household work of caring for them. This housework was done by the plaintiff. No one occupied said premises except the defendant, the plaintiff, her husband, and their minor child. During the winter of 1918 and 1919 the defendant on several occasions missed money from a wallet left in his clothing in his rooms while he was absent, and thereafter, on different occasions, he missed various articles, as shirts, collars, handkerchiefs, stamps, and other articles which he kept in his rooms.

During this period the plaintiff cared for his rooms and had access to them. During the latter portion of the defendant's occupation of these rooms, the plaintiff kept a colored maid for several weeks, who assisted in the housework. The losses of the defendant began many months before this maid was employed.

The defendant usually paid his rent on or about the 1st day of the month. On February 1, 1920, he postponed paying his rent until he could talk with his landlord, the plaintiff's husband, about his various losses. The defendant made a memorandum of such articles as he believed had been stolen from him, and on February 22, 1920, he invited the plaintiff's husband to his rooms, and informed him of his losses, and showed him his memorandum, which was headed " Stolen." The husband asked the defendant whom he considered responsible, and the defendant replied that there could be only one person responsible, and that was the plaintiff, as she had sole access to his rooms, but that he made no charge against her, and proposed to make no charge.

The defendant requested the husband, as his landlord, to indemnify him for his losses. On the following evening the plaintiff and her husband called on the defendant in his rooms, and the husband asked the defendant whether he suspected that the plaintiff had taken the missing articles, and the defendant replied that he did.

The defendant at all times entertained an honest belief that his property had been taken or destroyed by the plaintiff, and at no time was he actuated or influenced by any improper motive, or by any ill will or ill feeling toward the plaintiff. The plaintiff failed to prove that in making any of the aforesaid statements the defendant was actuated by actual malice or malice in fact.

The publication of defamatory matter was admitted on the trial, and no justification was pleaded; that is, there was no answer by the defendant alleging the truth of the defamatory matter. Under this state of the case malice was the only issue, and the question of privileged communication is involved in that issue. Atwater v. Morning News Co., 67 Conn. 504, 34 A. 865.

A privileged communication in this connection means, in the first place, a defamatory statement made on what is known in law as an occasion of privilege. If the communication was made on an occasion of privilege, this rebuts the malice which the law implies from the making of a defamatory communication, and the plaintiff must show that the defendant was actuated by actual malice in order to recover. Actual malice is not necessary to be proven by extrinsic evidence. The defamatory communication made and the circumstances leading up to and surrounding the making are to be considered by the trier in determining this question. Flanagan v. McLane, 87 Conn. 220, 87 A. 727, 88 A. 96. A privileged communication is a defamatory communication made on what is called an occasion of privilege without actual malice.

The court has found that the defamatory communication as to the plaintiff, made by the defendant, was made without actual malice; therefore the only question for discussion as to this feature of the case is whether under the facts found the communication was made upon an occasion of privilege.

The defendant claims that under the facts found the occasion when the defamatory communications were made was an occasion of privilege, because the defendant was making the communication in order to protect his own interests. The defendant claimed that under the facts found it appears that he had lost personal property from his rooms, and believed that it had been stolen, and therefore had an interest in recovering the articles,...