Gray v. Mossman

• Decision Date: 21 February 1917
• Citation: 91 Conn. 430,99 A. 1062
• Court: Connecticut Supreme Court
• Parties: GRAY v. MOSSMAN.

99 A. 1062

91 Conn. 430

GRAY

v. MOSSMAN.

Supreme Court of Errors of Connecticut.

Feb. 21, 1917.

Appeal from Superior Court, Fairfield County; Edwin B. Gager, Judge.

Action by Horace M. Gray against Albert Mossman to recover damages for an alleged libel. From order directing verdict for defendant, plaintiff appeals. No error.

Joseph A. Gray, of Norwalk, for appellant. Homer S. Cummings and Raymond E. Hackett, both of Stamford, for appellee.

WHEELER, J. This case was before us in 88 Conn. 247, 90 Atl. 938, on an appeal from a decision setting aside a verdict. We then held that, assuming the words used were actionable per se, the evidence disclosed that they were true; and, if false, that they were published in the exercise of a military privilege, and belonged to the class known as privileged communications, for the publication of which the defendant could not be held liable unless the proof showed that he was actuated by malice in making the publication. The conclusion of malice, we held, could not be reasonably reached upon the evidence. On the present trial the court directed a verdict, and the appeal herein is from this decision.

The basis of the decision was that the communication was privileged, and meant that the plaintiff was temperamentally unfitted for command, and that there was no evidence that showed—

"either that that was not true, or that the defendant did not, upon reasonable grounds, believe that it was true honestly. And there is no evidence whatever, as I think in this case any more than in the other case, as the Supreme Court said, to show that the defendant was actuated by any feeling of ill will, that he made that indorsement under any other considerations than in the reasonable and ordinary conduct of his duty in reporting to his superior officer the reason why he had not made the promotion that the plaintiff desired."

The evidence is not before us, and so we have no way of determining whether these conclusions, or the direction of the verdict, were supported by the evidence.

Criticism is directed at the court's action in regarding the former opinion of this court. Until modified by us it was, so far as it went, the law of the case, equally obligatory upon the parties to the action and to the trial court. The motion to correct is pressed in four particulars. The plaintiff desires a finding that the pleadings were not read at the opening of the trial, but by consent of counsel the court made a brief statement of the issues involved.

The consent of counsel was a waiver of any right he may have had to have the pleadings read. If the purpose of the motion is to disclose a difference between the issues as stated in the direction of the verdict and those at the opening of the trial, of which we have no knowledge, this would not affect the correctness of the court's direction of the verdict.

The plaintiff desires noted the fact that he offered in evidence the alleged libelous writing and evidence tending to prove all the allegations of the complaint. The defendant admitted the making and publication of the alleged libel; there was no occasion to offer it in evidence.

The court made no finding except its statement of the rulings on evidence. On the former appeal from the denial of a motion to set aside a verdict, we said no finding was required in that case, and that is true on an appeal from a directed verdict when the determining issue is decided by a review of the evidence. On such appeals consideration of the evidence, and not of the finding, will determine the correctness of the ruling appealed from.

On an appeal from a directed verdict, where rulings on evidence are taken up, in the ordinary case a finding of the facts is necessary to an understanding of the rulings on evidence, and should be made; cases may occur when the rulings on evidence may be considered upon a sufficient excerpt from the transcript of the evidence in connection with the admissions in the record without such a finding.

In this case the plaintiff did not request such a finding, and is in no position now to claim it; moreover, the rulings on evidence, although not stated as fully as would be desirable, are, as a rule, stated as contained in the plaintiff's request, and can be sufficiently understood to permit us to rule upon the var ous exceptions without having the aid of such a finding. Rulings upon evidence which merely are excerpts from the transcript surrounding the ruling made not infrequently do not put the appellate court in the position of the trial court. Where the excerpts of the evidence does not do this, the ruling should contain a brief statement, showing the situation under which the ruling was made.

The other grounds of the motion to correct are covered by the addition to the finding made.

Certain exceptions, affecting seven of the rulings on evidence, are pressed as embodying statements contrary to the evidence. The excerpts from the evidence do not support the claim. Without the entire evidence before us, or all that related to these subjects, we could not rule decisively upon these exceptions.

Conceding that these statements were wrongly incorporated in the finding, we would be unable to conclude that this was harmful to the plaintiff.

The rulings upon evidence are numerous, but in the main unimportant.

The roster (exception 1) of the military company was offered to prove that there was a vacancy in the office of first lieutenant. The roster named the second lieutenant and omitted reference to the first. This would, it seems to us, have tended to prove the vacancy claimed, and the existence of the vacancy appears to have been an issue in the case. As it did not tend to prove, so far as the record shows, the falsity of the alleged libel, or malice, its exclusion was harmless. For the direction of the verdict, was practically upon the ground that the evidence was substantially similar to that of the former trial, and that no evidence of the falsity or bad faith of the charge, or of its malice, had been adduced upon the present trial. This ruling was stated in the finding as the plaintiff's counsel stated it in his draft finding.

The second ground upon which the roster was claimed was that the plaintiff might prove which of these members had given him assurance of voting for him to fill this vacancy. This was wholly immaterial to the issues raised by the pleadings.

The plaintiff was not permitted to answer the question (exception 2) as to whether a sergeant should have had the confidence of the officers of the company, through want of military qualification.

For like reason the expert question asked of the witness Nash, and forming the subject of the fifteenth exception, were excluded.

The record does not show that the court exceeded its discretion in ruling that these witnesses were not qualified to testify as military. experts.

Definitions (exception 3) from the dictionary of the terms used in the libel were excluded because not terms of science, but the court ruled that the matter was one for judicial notice which might be taken advantage of in argument. No harm would have been done to have admitted these definitions, and no harm has been done by their exclusion. The court took judicial notice of them, as we do. And in our judgment they do not tend to prove the meaning attributed to the alleged libel by the plaintiff, nor to prove malice.

To prove malice the plaintiff (exception 4) was asked if he knew the intent of the defendant in issuing the indorsement which is the libel charged. This was properly excluded. It invited an answer based upon the witness' inferences or his judgment based upon any form of information, hearsay, or otherwise. The court ruled that all that the defendant did or said relevant to the matter might be shown; from this and the rest of the evidence it was for the jury to ascertain the intent.

The plaintiff's testimony (exception 5) was stricken out that a Col. Schultze had told him, in the presence of the defendant, that the same statement appearing in this indorsement was made in Hartford to obtain the plaintiff's discharge. The plaintiff claimed this as proof of a fact appearing in the military records and showing a repetition of the libel by the defendant. A fact appearing in an official record cannot be proved by hearsay.

We do not consider any other claim for the admissibility of this evidence for none such was made in the trial court or there ruled upon.

Exceptions 6, 8, and 22 are instances where either no objection was made or objections made and not persisted in or pressed to exception. These exceptions ought not to have been incorporated in the appeal.

The plaintiff (exception 7) testified to the defendant's wealth. It subsequently appeared that this was a mere estimate, based upon his knowledge that the defendant had received certain moneys from some estates some years before. The witness possessed no competent knowledge from which he could testify, and the court properly struck this out.

Upon an assumed set of facts (exception 9), purporting to detail an interview between the plaintiff and defendant in which the defendant said that he did not intend to call a meeting of the military company for the election of a second lieutenant, and intended to appoint to the position of second sergeant another than the plaintiff, and the plaintiff said to the defendant, his captain,...