Galvin v. New York, N. H. & H. R. Co.

Decision Date12 July 1960
Citation168 N.E.2d 262,341 Mass. 293
PartiesJeremiah E. GALVIN v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John T. Gaffney, Boston (Patrick F. Murphy, Boston, with him), for plaintiff.

Noel W. Deering, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE, and CUTTER, JJ.

SPALDING, Justice.

This action of tort, originally brought against the corporate defendant and two of its employees, Curley and Flynn, was submitted to the jury only against the corporate defendant, hereinafter called the defendant. 1 The case having been submitted on three counts (slander, false imprisonment, and breach of contract), the jury returned a verdict for the plaintiff on the slander count, and verdicts for the defendant on the other two. The verdict for the plaintiff was recorded under leave reserved. Thereafter the judge, on motion of the defendant, entered a verdict for the defendant on the slander count. The case comes here on the plaintiff's exceptions to this action and to a ruling on evidence.

There was evidence of the following: The plaintiff was employed by the defendant as a member of its police force. On August 7, 1953, he was assigned to guard the defendant's ullage house on C Street, South Boston. The ullage house was used to store broken crates of vegetables until they were sold at auction. Suspecting thefts from the ullage house, the defendant assigned two of its police officers, Curley and Flynn, to watch the house. From 10 P.M. on August 6 until approximately 5 A.M. on August 7 they watched the ullage house from their automobile, parked about 300 feet away. During this period they observed the plaintiff going from the ullage house to his car carrying packages. This occurred several times. On the last occasion they saw the plaintiff get into his car and drive it from the parking lot, where it had been parked, to C Street where, at a place near the end of the ullage house, he left it. Around 6 A.M., as a result of a conversation with Sergeant Hartnett (a police officer in the defendant's employ), the plaintiff, accompanied by Hartnett, left the ullage house and 'went out onto C Street where he observed * * * [Curley and Flynn] standing beside the plaintiff's automobile.'

The plaintiff's version of what happened thereafter is as follows: He saw 'Curley trying the doors of his car, and he observed four or five truck drivers standing on the sidewalk at about the center of his car.' He walked toward his car with Hartnett and when they were within twelve or fifteen feet from it 'Curley said in a loud voice 'Open up your car. We know what has been going on here during the night.'' The truck drivers were about six to eight feet away when Curley made this statement. Curley made it 'in a very loud voice. He hollered it.' Again 'Curley hollered 'Open up your car and take out the stuff that you stole during the night.'' By this time the truck drivers were 'right beside Curley and were starting to form around * * * [the plaintiff's] car.' Replying to Curley, the plaintiff said 'I don't know what you are talking about.' 'Curley said in a loud voice 'If you do not open your car and show us the stuff you stole, we will take you up to station 6 and have you booked on suspicion and have your car opened.' At that time there were thirty to fifty truck drivers and workers all gathered in a circle around * * * [the plaintiff's] car.' The plaintiff asked Curley if they 'could get away from this crowd.' Flynn 'then spoke up and said 'Why don't you open up your car? I have watched you all night long going to different baskets in the ullage room and taking stuff and bringing it to your car.'' In reply the plaintiff stated that he had never taken 'anything from anybody' and that Flynn knew it. Flynn answered 'Why don't you take the stuff out of your car that you stole during the night and have this over with?' The plaintiff at that time was eight to ten feet away from Flynn and had no difficulty hearing him. '[t]here were then fifty to sixty drivers and workers circled around the three of us.'

The plaintiff, at Curley's suggestion, shortly thereafter drove his car to yard 7, and Curley, Flynn and Hartnett followed. There the plaintiff opened his car and produced a bag with six potatoes, two heads of lettuce and a cantaloupe. The plaintiff was then told to drive to '8 House' where he stayed from 7 A.M. until 8:30 when he was informed that he had been dismissed from the defendant's employ. The plaintiff testified that the property found in his car had been given to him in the ullage house by the owners. '[N]o criminal complaint of any kind was issued against the plaintiff.'

It was agreed that Curley and Flynn were employees of the defendant on August 7, 1953, and were acting at that time within the scope of their employment as patrolmen.

The alleged defamatory statements were accusations of crime and were actionable without proof of special damage. Crafer v. Hooper, 194 Mass. 68. 72, 80 N.E. 2; Friedman v. Connors, 292 Mass. 371, 373-374, 198 N.E. 513. And, since it could have been found that they were uttered by the defendant's employees in the course of their employment, the defendant would be subject to liability. Mills v. W. T. Grant Co., 233 Mass. 140, 123 N.E. 618; Pion v. Caron, 237 Mass. 107, 111, 129 N.E. 369; Pihl v. Morris, 319 Mass. 577, 581, 66 N.E.2d 804. The defendant does not contend otherwise. The sole ground urged by the defendant in support of the action of the judge in entering a verdict for the defendant is that the statements were made in such circumstances as to be privileged. It is undoubtedly the law that if the defendant, having reasonable cause to believe that someone had been stealing property from the ullage house, sought to discover the guilty party for its own protection, and, without malice and in the belief that it was true, charged the plaintiff with theft, the words would be privileged. It is the typical case of a privileged occasion. Brow v. Hathawat, 13 Allen 239, 241-242; Dale v. Harris, 109 Mass. 193, 196; Wormwood v. Lee, 226 Mass. 339, 341, 115 N.E. 494; Pion v. Caron, 237 Mass. 107, 110, 129 N.E. 369.

The judge, on the evidence, could rightfully have concluded, as evidently he did by entering a verdict for the defendant, that the alleged defamatory words were uttered in privileged circumstances. The plaintiff does not argue the contrary. His position is that (1) the privilege is not absolute but conditional; (2) it can be destroyed by proof of abuse of the privilege; and (3) there was sufficient evidence of such abuse as to require the submission of the case to the jury. As to the correctness of the first two propositions there can be no doubt. Gassett v. Gilbert, 6 Gray 94, 97; Dale v. Harris, 109 Mass. 193, 196; Doane v. Grew, 220 Mass. 171, 107 N.E. 620, L.R.A.1915C, 774; Pion v. Caron, 237 Mass. 107, 110, 129 N.E. 369; Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 343-344, 47 NE.2d 595; Sheehan v. Tobin, 326 Mass. 185, 189-192, 93 N.E.2d 524; Grindall v. First Nat. Stores, Inc., 330 Mass. 557, 559, 116 N.E.2d 687. See Restatement: Torts, § 599. The question, therefore, narrows down to the correctness of the plaintiff's third proposition, namely, that there was evidence from which the jury could find that the privilege had been abused. See Dale v. Harris, 109 Mass. 193, 196. As to this issue the burden was on the plaintiff. Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 344, 47 N.E.2d 595.

It is settled that proof of actual malice will constitute an abuse of the privilege. See e. g. Gassett v. Gilbert, 6 Gray 94, 97; Doane v. Grew, 220 Mass. 171, 176, 107 N.E. 620,...

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