Hemmens v. Nelson

Citation138 N.Y. 517,34 N.E. 342
PartiesHEMMENS v. NELSON.
Decision Date13 June 1893
CourtNew York Court of Appeals
OPINION TEXT STARTS HERE

Appeal from supreme court, general term, fourth department.

Action by Emily Hemmens against Edward B. Nelson for slander. From a judgment of the general term (13 N. Y. Supp. 175) affirming a judgment entered on a verdict directed for defendant, plaintiff appeals. Affirmed.

Peckham and Maynard, JJ., dissenting.

Oswald B. Backus, for appellant.

John D. Kernan, for respondent.

O'BRIEN, J.

The principal question in this case arises upon an exception taken to the direction of a verdict for the defendant upon the fifth trial of an action of slander. The defamatory charge is alleged to have been made by the defendant of and concerning the plaintiff, in the month of February, 1878, and consisted, in substance, of a statement to B. J. Beach, and other worthy citizens, that the plaintiff on January 19, 1878, mailed to the defendant's wife, at Rome, N. Y., a sealed prepaid envelope, directed to her, in which was inclosed a printed letter or circular containing obscene and indecent matter. The defendant was at the time, and still is, the principal of the institution for deaf-mutes at Rome, one of the charitable institutions of the state. The plaintiff was then the superintendent of the sewing department, and her duty was to superintend the making of clothing for the children in the institution, and also to instruct a class in sewing. The general management of the institution is committed by the statute to a board of trustees or directors, with power to enact by-laws or rules and regulations for the government of the institution, and Mr. Beach was the president of the board. Under the by laws adopted the actual management is, to a great extent, devolved upon an executive committee composed of five members of the board, of which the president was always to be one. The defendant was really the executive head and manager of the institution. It was his duty and his right, under the rules and regulations adopted for its government, to attend the meetings of the board, to make reports in writing, and to participate in the discussions. Subject to the directions of the board, he had charge of the technical, moral, and religious instruction of the inmates. He was required to regulate the course of instruction in the classes, examinations, exhibitions, religious services in the chapel, and was himself to have the immediate charge of the advanced class. He was required to conduct all the correspondence, employ and dismiss all persons necessary to be employed, unless officers of the institution or persons appointed by the board, and, with the approval of the executivecommittee, he had power to suspend any professor, officer, or teacher appointed by the board. It was his duty to keep a book in which should be entered all events worthy of note relating to the institution, which was to be the property of the trustees, and submitted to them at the quarterly meetings, and always open to the inspection of the executive committee.

There is no dispute as to the fact that the defendant received the letter referred to in the regular mail of the institution. The proofs show that he gave it to his wife, to whom it appeared to be directed, and that she opened it, and, after looking at its contents, nature, and character, handed it back to him. An inspection of the paper indicates that it had been cut from a book or pamphlet prepared for advertising what were called female remedies of one Dr. Goff, of Syracuse. At the bottom of one of the pages it is signed, ‘A Lady Friend,’ in pencil, the writing appearing to be that of a woman, and in another part of the paper, following an advertisement of certain appliances for females, there was written, in apparently the same hand, in pencil, a statement that she, whoever the author was, had used them, and that they would accomplish the desired purpose. Without further description, it is sufficient, for every purpose of this appeal, to say that it was grossly obscene and indecent, and the charge that the plaintiff was the author of it, or rather sent it to the defendant's wife, through the mail, was defamatory, and prima facie actionable. The defendant examined the writing in the body of the paper and the directions on the envelope, and compared it with signatures and letters of the plaintiff and others in the institution, which were in the office, and he then formed the opinion that the plaintiff was the person who sentit. Having made this examination, he took the letter and papers to Mr. Beach, the chairman of the board and of the executive committee, and consulted with him in regard to the matter. In this interview, it may be assumed from the proof that the defendant expressed the opinion, in words of more or less positiveness, that the plaintiff was the person who sent the letter. Mr. Beach, after an examination of the letter, and comparing it with the genuine letters and signatures of the plaintiff, which were before him, agreed with the defendant, but, for greater caution, suggested that all the papers be sent to an expert in New York for examination and his opinion. This course was adopted, and all the papers were sent, and in due time returned, with the expert's opinion that the address on the envelope and the pencil writing in the circular were written by the plaintiff. A meeting of the executive committee was then called, and the plaintiff notified, and she was present at the meeting, and so was the defendant. There is considerable conflict in the testimony with respect to what actually took place at the meeting, and especially as to what the defendant said, but the jury could have found that he then and there stated and charged, in substance, that the plaintiff sent the letter, and she was discharged under the direction of the committee that day.

The court held that the defense of privilege, contained in the answer, was established, and that there was no question for the jury. The general term has repeatedly reversed judgments in the plaintiff's favor, (24 Hun, 395, 36 Hun, 149, and 13 N. Y. St. Rep. 211,) and has finally affirmed the judgment entered upon the verdict directed against her. There can be no doubt that the occasions upon which the defendant is shown to have made the charge were privileged; the only question being as to its nature and extent. The defendant occupied an important and responsible office under the authority of the state, involving the performance of duties of the most varied and delicate nature, upon which the efficiency and welfare of the institution largely depended. It was his duty to watch and carefully observe the moral conduct, not only of the children committed to his charge, but, even in a greater degree, the teachers, upon whose influence and example so much, for good or evil, depended. It was essential that he should be at liberty to communicate freely with the governing body as to any matter touching the conduct of either the teachers or the pupils. This he could not do if hampered by the fear of penalties that could follow errors of judgment or mistakes, as to who was or was not properly chargeable with improper conduct. In some cases the privilege which the law gives to persons in such circumstances, to speak freely, is absolute, however malicious the intent or false the charge may be. This immunity applies to words defamatory of the character of another spoken by a member of a legislative body in debate or in due course of proceedings, by counsel in arguments pertinent to the issue before the courts of justice, by military officers in reports or statements to their superiors, and all acts of state. From considerations of public policy, and to secure the unembarrassed and efficient administration of justice and public affairs, the law denies to the defamed party any remedy through an action for libel or slander in such cases. Hastings v. Lusk, 22 Wend. 410;Moore v. Bank, 123 N. Y. 420, 25 N. E. Rep. 1048.

The courts have refused to extend the class of cases where absolute privilege applies, and I shall assume it does not apply to this case, though it would perhaps be difficult to make a satisfactory distinction, founded upon principle, between the case of defamatory words in a petition to a legislative body or committee, or the reports of military officers, and the character of the charge in this case, and the circumstances under which it was made. If the defendant believed that the plaintiff was the person who sent the letter, it was his duty to communicate the fact to the executive committee and the president, all of whom had a corresponding duty with respect to everything that concerned the welfare of the institution, and his statements, under such circumstances, were confidential and privileged until the plaintiff removed the privilege by proof, on her part, of actual, as it is sometimes called, express malice, or malice in fact. Byam v. Collins, 111 N. Y. 143, 19 N. E. Rep. 75; Vanderzee v. McGregor, 12 Wend. 545;Van Wyck v. Aspin wall, 17 N. Y. 190; Washburn v. Cooke, 3 Denio, 120; Halstead v. Nelson, 36 Hun, 155; Moore v. Bank, supra. This kind of malice which overcomes and destroys the privilege is of course quite distinct from that which the law, in the first instance, imputes with respect to every defamatory charge, irrespective of motive. It has been defined to be an ‘indirect and wicked motive which induces the defendant to defame the plaintiff.’ Odg. Sland. & L. 267. Unless we can find in the record in this case some proof which would warrant the jury in finding the existence of such wicked motive on the part of the defendant when he made the charge in question, then the direction of the learned trial judge was correct, and the judgment must stand. The question is not whether the charge is true or false, nor whether the defendant had sufficient cause to believe that the plaintiff sent the letter, or acted hastily, or in a mistake, but...

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