Moriarty v. Lippe

• Decision Date: 08 February 1972
• Citation: 294 A.2d 326,162 Conn. 371
• Court: Connecticut Supreme Court
• Parties: Michael E. MORIARTY v. Flora LIPPE et al.

Page 326

294 A.2d 326

162 Conn. 371

Michael E. MORIARTY v. Flora LIPPE et al.

Supreme Court of Connecticut.

Feb. 8, 1972.

Jules Lang, Norwalk, for appellant (named defendant).

John Keogh, Jr., Norwalk, with whom, on the brief, were Walter E. Whitton, Norwalk, and J. Allen Kerr, Jr., for appellant (defendant The Hour Publishing Co.).

Robert A. Slavitt, Norwalk, with whom, on the brief, was Abraham D. Slavitt, Norwalk, for appellee (plaintiff).

Before HOUSE, C.J., and COTTER, THIM, SHAPIRO and LOISELLE, JJ.

SHAPIRO, Associate Justice.

The plaintiff, a patrolman in the Norwalk police department, brought this action seeking damages against the named defendant, Flora Lippe, hereinafter referred to as Lippe, and The Hour Publishing Company, hereinafter referred to as The Hour. The plaintiff's amended complaint is in three counts. The first and second counts are directed against Lippe only. The first count alleges slander arising from a street incident in Norwalk on August 27, 1966. The second count alleges libel in the publication of a letter sent to the police commissioners, mayor and chief of police of Norwalk on August 29, 1966. The third count, directed against The Hour only, alleges libel in the publication in its newspaper of a letter from Lippe dated August 29, 1966. The defendants in their answers pleaded both truth and fair comment on a public official as special defenses. Lippe also filed a counterclaim seeking damages in which she alleged physical injury and emotional upset.

The jury returned a general verdict on the complaint against both defendants for $4000 and found for the plaintiff Moriarty on Lippe's counterclaim.

Each defendant moved that the court set aside the verdict and render judgment notwithstanding the verdict in accordance with motions for a directed verdict previously made, on which the court had reserved decision. The court denied the motions to set aside the verdict and judgment was rendered in accordance with the jury's verdict. The defendants have appealed, assigning error in rulings on evidence, in the court's refusal to charge as requested, in the court's charge and in the denial of their motions to set aside the verdict and render judgment notwithstanding the verdict.

We turn first to the defendants' claims that the court erred in denying their motions to set aside the verdict and render judgment notwithstanding the verdict because the verdict is not supported by the evidence. We test the court's action in these respects by the evidence printed in the appendices to the briefs. Southington v. Francis, 159 Conn. 64, 68, 266 A.2d 387; Prystash v. Best Medium Publishing Co., 157 Conn. 507, 508, 254 A.2d 872; Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 498, 208 A.2d 748; Smith v. Housing Authority, 144 Conn. 13, 14, 127 A.2d 45; see Practice Book §§ 716, 718, 721. For the attack on the court's refusal to set aside the verdict to succeed, it must appear that the evidence furnished no reasonable basis for the jury's conclusion that a libel or slander had been committed. Petrizzo v. Commercial Contractors Corporation, supra, 152 Conn. 499, 208 A.2d 748. The evidence must be considered in the light most favorable to the plaintiff. Grills v. Pepsi-Cola Bottling Co., 151 Conn. 627, 628, 201 A.2d 185; Petrillo v. Bess, 149 Conn. 166, 167, 179 A.2d 600; Kazukynas v. N. C. Casciano & Sons, Inc., 149 Conn. 1, 2, 174 A.2d 796; Kerrigan v. Detroit Steel Corporation, 146 Conn. 658, 660, 154 A.2d 517.

The jury could have found as follows: On August 27, 1966, at approximately 12:45 p.m., while in the course of walking his beat, the plaintiff saw a vehicle improperly parked in front of an A & P store on Belden Avenue in the town of Norwalk. The plaintiff blew the horn of the car to alert the operator to come out and remove the vehicle, which was impeding the traffic flow on United States route 1 at a particularly busy intersection. About two or three minutes later a woman identified as Flora Lippe emerged from the A & P store and, in a loud voice that could have been heard across the street, said to the plaintiff, 'God damn you. Don't you know how to write a ticket, you stupid son of a bitch.' The plaintiff then asked Lippe for her license and registration. As she produced her license and registration she continued a verbal barrage at the plaintiff, wanting to know his name, who his father was, whether he was after the chief's job and telling the plaintiff that his father would never do anything like that to her, all of this in a screaming voice that attracted a crowd of thirty-five to forty people. The plaintiff did not respond orally to her as he wrote out a uniform traffic summons. Lippe, screaming and shouting, referred to plaintiff as a clown, a big fat ape and a smart aleck, claiming he was out to make a name for himself and that he was out for the chief's job. The plaintiff informed her that she was being issued a summons and requested that she sign the bottom line of the summons, but she refused to do so or to accept the ticket and started to leave the scene. The officer again told her she would have to sign the summons or would have to come with him to police headquarters. In response to this, she stated that she would not sign the summons and again described him as a big fat oaf, an ape and a clown many times over in a loud voice, all in the presence of a substantial crowd there assembled. It was only after the officer advised her that she was in breach of the peace and would have to accompany him, and Lippe attempted to leave in spite of that admonition, that the officer first placed a hand on her person, taking hold of her right wrist. At this point, Lippe physically attacked the plaintiff with her pocketbook and attempted to kick him and otherwise to inflict harm on him, and in defense of himself against this attack he exercised sufficient force to prevent her from further attacking him, but no additional force. Albert Prato, a captain on the Norwalk police department and a superior of the plaintiff, then happened on the scene and in response to his inquiry about what had transpired, Lippe stated in a loud voice that 'this ape almost twisted my arm off,' that she was surprised that the 'ape' did not take his gun out and shoot and kill her, that he was treating her like common dirt, that she was a business woman and had not done anything wrong, and that she did not see why this 'ape' was picking on her in this way. On arrival at police headquarters, she continued to shout at the plaintiff, calling him an 'ape' and, addressing Lieutenant Varanay of the Norwalk police department, a superior officer of the plaintiff, accused the plaintiff of attempting to tear her arm out of its socket and again stated that she did not understand why the plaintiff did not take a gun and shoot her.

All of the foregoing events occurred on Saturday, August 27, 1966. On Monday, August 29, two days after the incident, The Hour published a news article concerning the incident. The article gave no hint that a police officer degraded a citizen. Two days later, on Wednesday, August 31, The Hour published in its letters to the editor column, 'People's Forum,' a 'letter of protest' submitted by Lippe. On August 30 or 31, the chief of police, a police commissioner and the mayor of Norwalk received complaints against the plaintiff, delivered by Lippe, as a result of which the plaintiff was requested to appear in the chief's office. The complaints, identical in content to the 'letter of protest,' contained the words: 'He came up to me, grabbed my arm, twisted it back until it felt as though it came loose out of its socket' and 'I would like to bring charges against Officer Moriarty for being abusive and using unnecessary force and treating a respectable citizen like a common criminal.' As a result of the publication of the letter by The Hour, the plaintiff was the victim of continual oral harassment, embarrassment and humiliation due to his part in the incident, both from the general public and from his fellow officers. The investigation conducted by the Norwalk police department made other officers aware of the incident, and this greatly diminished the plaintiff's efficiency as a police officer and his acceptance by fellow officers in the line of duty until, as a result of an investigation by the commissioner into the charge of police brutality, the plaintiff was exonerated of any charge of misconduct. Subsequent to August 31, 1966, Lippe withdrew the charge of misconduct against the plaintiff from the complaint files of the police commissioners.

I

We consider first the appeal of The Hour. It assigns as error the court's denial of its motions for a directed verdict, to set aside the verdict, and for judgment notwithstanding the verdict because the verdict is not supported by the evidence.

We assume for the purpose of discussing these motions that the letter published by The Hour was false and that its content was libelous per se. ¹ If this be so, in order to sustain a verdict of libel against The Hour the inquiry is whether there was sufficient evidence from which the jury could reasonably conclude that The Hour published the letter with 'actual malice,' that is, with knowledge that it was false or with reckless disregard of whether it was false. This constitutionally compelled standard of review, first enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686, delimits the power of a state to award damages for libel in actions brought by public officials against critics of their official conduct.

The motivating force for New York Times Co. v. Sullivan, supra, 270, 84 S.Ct. 721, was 'a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that . . . (such debate) may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public...