Flanagan v. McLane

• Decision Date: 25 July 1913
• Citation: 87 Conn. 220,87 A. 727
• Court: Connecticut Supreme Court
• Parties: FLANAGAN v. McLANE.

87 A. 727

87 Conn. 220

FLANAGAN

v. McLANE.

Supreme Court of Errors of Connecticut.

July 25, 1913.

Roraback and Wheeler, JJ., dissenting.

Appeal from City Court of New Haven; Samuel E. Hoyt, Judge.

Action by Matthew C. Flanagan against Jennie McLane for libel and slander. Judgment for the defendant, and plaintiff appeals. Affirmed.

Action for libel and slander tried in the city court of New Haven before Hoyt, J., and a jury; verdict for defendant. Plaintiff appeals from the denial of his motion to set aside the verdict as against the evidence. No error.

The complaint contains three separate counts in libel and one in slander. The plaintiff and his helper worked in and about the house of the defendant's husband for some weeks. During this time a sum of money was missed which afterwards reappeared. While the money was missing the defendant wrote the letter set forth in the first count to one Sturtze, a constable of the town of Hamden, informing him of the loss and of her belief that the plaintiff had taken it. She had already written a similar letter, set forth in the fourth count, to the mother of the plaintiff's helper. After the money reappeared the defendant again wrote to Sturtze the letter which is the basis of the second count, saying in effect that the money had been found in a place where she had never put it and that she would do no more about the matter, but was satisfied that the plaintiff had taken it and brought it back again when he found that he was suspected. The third count of the complaint is in slander. The defendant's answer denied the allegations of the third count, admitted the authorship of the letters, and pleaded privilege and want of malice as to each. 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 in the court below and argued here as if the issues had been so formulated. The jury found the issues for the defendant.

Matthew A. Reynolds, of New Haven, for appellant.

Edwin S. Pickett, of New Haven, for appellee.

BEACH, J. (after stating the facts as above). The law implies malice from a libelous publication, except in certain cases of privilege, one of which is "when the author and publisher of the alleged slander acted in the bona fide discharge of a public or private duty or in the prosecution of his own right or interest."

"A privileged communication means nothing more than that the occasion of making it rebuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff, and throws upon him the onus of proving malice in fact, but not of proving it by extrinsic evidence only; he still has a right to require that the alleged libel itself shall be submitted to the jury that they may judge whether there is evidence of malice on the face of it." White v. Nicholls, 3 How. 266, 286, 287 (11 L Ed. 591).

Whether a publication is libelous per se is a question for the court. Donaghue v. Gaffy, 54 Conn. 257, 7 Atl. 552. Whether the occasion is one of privilege is also a question of law for the court. Atwater v. Morning News Co., 67 Conn. 504, 513, 34 Atl. 865; lias-sett v. Carroll, 85 Conn. 23, 36, 81 Atl. 1013, Ann. Cas. 1013A, 333.

Whether the defendant in the use of the privileged occasion was or was not actuated by malice in fact is a question for the jury. Donaghue v. Gaffy; Atwater v. Morning News Co.; ...