Flanagan v. McLane

• Decision Date: 16 September 1913
• Citation: 87 Conn. 220,88 A. 96
• Parties: FLANAGAN v. McLANE.
• Court: Connecticut Supreme Court

88 A. 96

87 Conn. 220

FLANAGAN

v. McLANE.

Supreme Court of Errors of Connecticut.

Sept. 16, 1913.

Dissenting opinion.

For majority opinion, see 87 Atl. 727.

WHEELER, J. The action consists of three separate counts in libel and one count in slander.

We cannot say that the verdict of the jury upon the issues presented under counts 1 and 4 for libel and count 3 for slander might not reasonably have been rendered.

Count 2 recites that on March 31, 1912, at Hamden, the defendant published a letter addressed to Frederick Sturtze as follows: "I wrote you a few weeks ago about some money we had stolen, and as I have heard nothing from you concluded that you haven't done anything about it. I write now to say we have found the money stowed away in a place where we would never have put it, so we think that after they found we suspected them, they returned it and hid it in that place, for Mr. Flanagan kept saying, 'Hasn't it been mislaid?' Of course we are very glad to get the money and shall do nothing further about it, although I am perfectly satisfied in my mind that Mr. Flanagan took it, for he acted guilty." And it further recites that the publication was false and malicious.

The defendant makes the first defense of her answer—privileged communication—the second defense of her answer to the second count. The first defense was made as an answer to all the counts; in reality it is a defense to the first count alone. That count recited that the defendant had published a certain libel of the plaintiff on March 5, 1913, in a letter addressed to Frederick Sturtze. It set up that she, believing certain moneys belonging to her had been stolen, wrote to Mr. Sturtze, a peace officer of Hamden, requesting him as such peace officer to investigate the facts set forth in the letter recited in count 1, and, further, that her letter was written without malice against the plaintiff, in an honest endeavor to recover her property by making a complaint to the proper authority for his investigation, and was a privileged communication. The libel set forth in the second count was published in another letter, and on another day, and constituted an independent cause of action. Therefore the so-called first defense—privileged communication—to the first count has no relation to the cause of action set up in the second count.

The second count on the record stands unanswered. The opinion of the court concedes this. In the finding of facts accompanying the opinion the court say: "Technically, and by reason of verbal inaccuracy, the second count stands unanswered; but the intent to plead the same defense to the second count as was pleaded to the first is manifest, and the case was tried to the court below and argued here as if the issues had been so formulated." We do not find these admissions stated in the record. Nor do we find them in the brief or oral argument of the plaintiff. We think the court had no right to disregard the pleadings as made by the parties. But if the defendant had pleaded privilege, as she may have intended, her plea would have been ineffective, just as the facts in evidence are ineffective, to establish that this letter was a privileged communication.

The defamatory publication charging a crime not being denied stood admitted, and made out a prima facie case against its author, and from its publication the law presumes it is false, imputes malice to its author, and presumes some damage. Atwater v. Morning News Co., 67 Conn. 504, 521, 34 Atl. 865; Donaghue v. Gaffy, 53 Conn. 43, 51, 2 Atl. 397; Swift v. Dickerman, 31 Conn. 285, 293; Bacon v. Mich. C. R. Co., 55 Mich. 224, 21 N. W. 324, 54 Am. Rep. 372; Newell on Slander and Libel (2d Ed.) § 19; Greenleaf on Ev. (16th Ed.) § 418.

But if the publication could be shown to have been a qualified or conditionally privileged communication, the presumption of falsity and malice is rebutted, and the burden of proving that the publication was made with express malice is on the plaintiff, for no one has a qualified privilege to maliciously libel another. Atwater v. Morning News Co., 67 Conn. 504, 518, 34 Atl. 865; Barry v. McCollom, 81 Conn. 293, 297, 70 Atl. 1035, 129 Am. St. Rep. 215; Hassett v. Carroll, 85 Conn. 23, 35, 81 Atl. 1013, Ann. Cas. 1913A, 333; Nichols v. Eaton, 110 Iowa, 509, 512, 81 N. W. 792, 47 L. R. A. 483, 80 Am. St. Rep. 319; note, Denver Pub. W. Co. v. Holloway 3 L. R. A. (N. S.) 697; note, Sunley v. Met. Life Ins. Co., 12 L. R. A. (N. S.) 91.

If circumstances came to the knowledge of the defendant which caused her to believe a crime had been committed, it was her civic duty to state to the authorities what she knew and believed; on ground of highest public policy her communication would be a qualified or conditionally privileged one. Eames v. Whittaker, 123 Mass. 342, 344; Brow v. Hathaway, 13 Allen, 239, 241; Newell on Slander and Libel, §§ 96, 98. Moreover, since the defendant had an interest in the recovery of the money, and the person to whom she made the communication had a duty to discharge respecting this she had, so long as she did not act with express...