Maitland v. Town of Thompson

• Court: Connecticut Supreme Court
• Writing for the Court: JENNINGS, Judge
• Citation: Maitland v. Town of Thompson, 129 Conn. 186, 27 A.2d 160 (Conn. 1942)
• Decision Date: 10 June 1942
• Parties: MAITLAND et al. v. TOWN OF THOMPSON et al.

27 A.2d 160

129 Conn. 186

MAITLAND et al.

v. TOWN OF THOMPSON et al.

Supreme Court of Errors of Connecticut.

June 10, 1942.

Appeal from Superior Court, Windham County; Quinlan, Judge.

Action by Alexander Maitland and others against the Town of Thompson and its selectmen and treasurer for an injunction against payment of a bill for counsel fees incurred in a libel action. Judgment for defendants after trial to the court, and plaintiffs appeal.

No error.

Before MALTBIE, C. J., and AVERY, BROWN, and JENNINGS, JJ.

John B. Harvey, of Willimantic, for appellants (plaintiffs).

Jeremiah D. Shea, of New Haven, and William P. Barber, of Putnam, and Ellsworth B. Foote, of New Haven (David E. FitzGerald, of New Haven, on the brief), for appellees (defendants).

JENNINGS, Judge.

The plaintiffs are taxpayers of the town of Thompson, hereinafter referred to as the town. The defendants are the town, its selectmen and treasurer. The plaintiffs secured a temporary injunction restraining the defendants from paying a bill for legal services rendered to five members of the board of education based on the defense of a libel action, brought against them by the former superintendent of schools of the town on the ground that the payment would be an illegal diversion of public funds raised by taxation. In this action they sought, unsuccessfully, to have this injunction made permanent. The basic question is, can the town legally assume the expense of this defense?

The finding, which is not attacked by the plaintiffs, discloses the following facts: The town's board of education consists of nine members. They serve without pay. In April, 1938, the board voted, five to four, not to rehire Meldon E. Smith, who had been superintendent of schools for one year. The minority requested the majority to give reasons for their action but the latter gave no reason at that time. Almost immediately great agitation arose in the town and demands were made that the reasons for this action be made public. The majority of the board endeavored to avoid harming Smith but were advised by the state commissioner of education to make their reasons public and finally, acting reluctantly and under public pressure amounting almost to compulsion, on advice of counsel wrote a letter to the state commissioner. This gave as their reasons that Smith had attempted to put through unwarranted and unauthorized purchases of supplies, that he had carried to the board untruthful stories about teachers and that he had misrepresented his qualifications to act as superintendent of schools. The minority were partially responsible for the agitation described and, to avoid further unpleasantness, the majority did not call a special meeting to ratify their action in writing the letter until after the termination of the litigation which ensued. Thus the charges were never brought before or considered by the board, as such. Smith requested a retraction. He sued the majority, as individuals, for libel, describing them in the body of the complaint as members of the board of education and alleging that the acts complained of were acts performed by them as members of the board.

The defendants in the libel action consulted the town counsel and as a result it became necessary for them to seek counsel elsewhere. Counsel were retained and represented these defendants throughout the lengthy trial. The defense was privilege and the trial court in that action found for the defendants on the ground that there was a conditional privilege and that the defendants were free from malice. No appeal was taken from that decision. In the case at bar, the court further found that these defendants acted in good faith and without malice in voting not to rehire Smith, that they honestly believed that the statements contained in the letter were true, that they made them in good faith and that all of these acts were performed in a conscientious desire to discharge the duties of their office as members of the board. After judgment, bills for legal services were rendered to the town and the board in the amount of $2,085.85. The board approved the bills, thereby ratifying, as a board, the action of the majority in hiring counsel, and requested that the selectmen call a special town meeting to appropriate money for their payment. This meeting was held upon due notice, the necessary appropriation was made and the selectmen and treasurer were empowered and directed to pay the bills.

The trial court further found concerning the libel action that "The judgment filed therein was that though the charges were unfortunately and mistakenly made and were not true," nevertheless, the five defendants being members of the board occupied a position of conditional privilege. The defendants attack the quoted portion as found without evidence; that this was so was not disputed by the plaintiffs in brief or oral argument. The quoted statement was not a special finding in the judgment of the libel action but was taken from the memorandum of decision. This alone would justify striking out the finding. Furthermore, although the file in the libel action, including the memorandum of decision, was made an exhibit in the case at bar, it was relevant only to show the issues raised by the pleadings and the resulting judgment. German v. German, 125 Conn. 84, 89, 3 A.2d 849. As to these issues, described above, this unnecessary statement was not a basis upon which the finding objected to could be made. It is stricken from the finding.

One ruling on evidence is made a ground of error. Smith was not present at the trial of the case at bar and his whereabouts were unknown, but the plaintiffs offered in evidence his demand for a retraction which was refused by the defendants in the libel action. Its authenticity was admitted but it was objected to as irrelevant and excluded on that ground. Neither the wording of the demand for retraction as given in the finding nor the corrected finding as a whole support the claim of relevancy. The ruling was correct.

The conclusions reached by the trial court were, in effect, that the defendants in the libel action were acting in discharge of a duty imposed by law in a matter in which the town had an interest and that the board and town lawfully ratified their action in incurring the legal fees in question. The remaining assignments of error attack these...