Pecue v. West

• Decision Date: 25 April 1922
• Citation: 233 N.Y. 316,135 N.E. 515
• Parties: PECUE v. WEST.
• Court: New York Court of Appeals Court of Appeals

233 N.Y. 316

135 N.E. 515

PECUE

v.WEST.

Court of Appeals of New York.

April 25, 1922.

Action by Charles Pecue against George H. West for libel. Judgment of nonsuit entered at the Trial Term was affirmed by the Appellate Division (191 App. Div. 620,181 N. Y. Supp. 826), and plaintiff appeals.

reversed, and new trial granted.

Pound, McLaughlin, and Crane, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Third department.

Milford D. Whedon, of Granville, for appellant.

Benjamin P. Wheat, of Albany, and E. Raymond Shepard, of Saratoga Springs, for respondent.

ANDREWS, J.

During 1918 George H. West was superintendent of the law and order department of the New York Civic League. It seems to have been his duty, when he received information as to vice and immorality in a community, to convey it to the authorities and ask them to look into the matter. Charles Pecue had a saloon in Granville until September 30th, when his license expired. He then moved to a small building in the same town, which had formerly been a saloon, and used it as a restaurant and poolroom. He was a married man with children, and he and his family lived in a house next door. West had not been in Granville for three or four years and seems to have had no personal knowledge of conditions there. He was not acquainted with Pecue. Late in October he received a letter from a Mrs. Collins, so far as appears, an entire stranger to him, stating that--

‘A Mr. Pecue, who kept a saloon near the railroad crossing, has been and is keeping a disorderly house.’

A few days later a second letter reached him from the same Mrs. Collins. Again it contained charges against Pecue:

‘The following information is received. * * * Charles Pecue, Potter avenue, who kept a saloon, is keeping girls for immoral purposes. One was taken to the hospital sick and another taken into the hospital off the street.’

There was this much basis for this gossip. A servant, employed in the Pecue residence, went to the hospital at her brother's request, suffering from an attack of influenza. Otherwise it was wholly false. Nevertheless, although the second letter did not even purport to be based upon what Mrs. Collins herself knew, without making the slightest investigation, without stating that he was acting on information which he had not verified or attempted to verify, speaking as of his own personal knowledge, West wrote and sent to the district attorney of Washington county a letter containing:

‘Charles Pecue, Potter avenue, formerly proprietor of a saloon, has been and is keeping girls for immoral purposes. One was taken to the hospital sick and another taken to the hospital off the street. The place is in Granville, Washington county, N. Y.’

This action was brought to recover damages for libel. At the close of the trial a nonsuit was granted on the ground that the communication so made was privileged and the plaintiff had failed to show the necessary malice on the part of the defendant. This result was affirmed in the Appellate Division by a divided court. It is now said that, not only was the theory of the trial judge right, but that he should have gone further. He should have held that under the circumstances the letter was absolutely privileged, and that malice in making the charge was immaterial.

[1] Doubtless there are cases where a false charge may be safely made, no matter how great the personal malice of the writer. They are few. One, however, relates to words published in the course of judicial proceedings. As to such words there often exists an absolute privilege founded on the supposed requirements of public policy. But while the principle is generally recognized, its application is frequently in doubt. Courts differ as to what constitutes a judicial proceeding within the rule. Is a complaint made or information given to a district attorney of an alleged crime within its compass? Some courts, believing that the general interest requires the utmost freedom in such matters, have held that it is. Matter of Quarles and Butler, 158 U. S. 532, 15 Sup. Ct. 959, 39 L. Ed. 1080;Vogel v. Gruaz, 110 U. S. 311, 4 Sup. Ct. 12, 28 L. Ed. 158;Schultz v. Strauss, 127 Wis. 325, 106 N. W. 1066,7 Ann. Cas. 528;Wells v. Toogood, 165 Mich. 677, 131 N. W. 124;Oliver v. Pate, 43 Ind. 132;Gabriel v. McMullin, 127 Iowa, 426, 103 N. W. 355. Others seem doubtful. McDavitt v. Boyer, 169 Ill. 475, 483, 485, 48 N. E. 317Champman v. Battle, 124 Ga. 574, 52 S. E. 812. Elsewhere, while the cases cited do not always definitely determine the question, the inclination seems to be to decide that under such circumstances the privilege is not absolute, but qualified. Flanagan v. McLane, 87 Conn. 220, 87 Atl. 727,88 Atl. 96;Robinson v. Van Auken, 190 Mass. 161, 76 N. E. 601;Bunton v. Worley, 4 Bibb (Ky.) 38, 7 Am. Dec. 735;Brinsfield v. Howeth, 107 Md. 278, 68 Atl. 566,24 L. R. A. (N. S.) 583;Hancock v. Blackwell, 139 Mo. 440, 41 S. W. 205;Miller v. Nuckolls, 77 Ark. 64, 91 S. W. 759,4 L. R. A. (N. S.) 149, 113 Am. St. Rep. 122,7 Ann. Cas. 110;Pierce v. Oard, 23 Neb. 828, 37 N. W. 677;Marshall v. Gunter, 6 Rich. (S. C.) 419;Briggs v. Byrd, 34 N. C. 377;Sands v. Robison, 12 Smedes & M. (Miss.) 704, 51 Am. Dec. 132.

In New York we find no controlling authority. In Hastings v. Lusk, 22 Wend. 410, 417, 34 Am. Dec. 330, Chancellor Walworth, speaking of absolute privilege, says it extends to complaints made to grand juries and magistrates, charging persons with crime. Here no action for slander will lie ‘although express malice as well as the absolute falsity of the charge can be established by proof.’ In these cases, however, a proceeding in court is in progress or is about to be initiated. In Thorn v. Blanchard, 5 Johns. 508, the majority of the Court of Errors thought the same rule applicable to complaints made to the Council of Appointment to obtain the removal of a district attorney. On the other hand, only qualified privilege attached to charges made against a customs officer to the secretary of the treasury in whome was vested the right of removal (Howard v. Thompson, 21 Wend. 319, 34 Am. Dec. 238); or to a bishop having power to examine and redress grievances (O'Donaghue v. McGovern, 23 Wend. 26); or to a constable asked to serve a process (Lathrop v. Hyde, 25 Wend. 448); or to a police officer (Smith v. Kerr, Edm. Sel. Cas. 190, affirmed 1 Barb. 155); or to the Governor on an application for a pardon (Andrews v. Gardiner, 224 N. Y. 440, 121 N. E. 341, 2 A. L. R. 1371). A dictum of Judge Folger appears in Klinck v. Colby, 46 N. Y. 427, 434,7 Am. Rep. 360, that--

‘For the sake of public justice, charges and communications, which would otherwise be slanderous, are protected if made bona fide in the prosecution of an inquiry into a suspected crime.’

A statement not dissimilar in effect is found in Thorn v. Moser, 1 Denio, 488.

[2] But while no authority controls us, the tendency of our courts is to restrict the rule of absolute privilege rather than to extend it. As has been pointed out, the English rule of complete immunity to counsel and witnesses in proceedings in court, with us is limited to these matters relevant to the proceedings in which they are engaged. We have said impliedly that the rule applies only to a proceeding in court or one before an officer having attributes similar to a court. It is not applied ‘to proceedings which, though official and public, are not in substance judicial,’ and it is ‘the tendency of courts to restrict the scope of absolute privilege in libel.’ Andrews v. Gardiner, supra.

[3] In our opinion it should not be held that the rule of absolute privilege is applicableto the circumstances before us. It extends the rule beyond that of any case except possibly Thorn v. Blanchard, the authority of which has been questioned. The complaint to the district attorney is not a judicial proceeding. In receiving it he has no attributes similar to a court. It is his duty to investigate where crime is or where it may have been committed. But such was the duty of the police officer in Smith v. Kerr. Nor do we think that any rule of public policy requires a different conclusion. It may be that the words ‘actual malice’ have a peculiar meaning in this connection. It may be, as Judge Cowen said, that, whatever the actual ill will, there can be no recovery if the complainant had reasonable ground to believe his charge was well founded. At least, as so limited, the public interest is not likely to suffer because proper complaints are checked by fear. And it is to the general advantage that the time of public officials should not be wasted in the investigation of false charges, made maliciously and without any probable ground to believe them true.

[4][5] While not a case of absolute privilege, undoubtedly a qualified privilege attaches to information as to actual or suspected crime given by the citizen to a district attorney. Klinck v. Colby, 46 N. Y. 427, 7 Am. Rep. 360. If so, one claiming to be injured must show that the reporter was actuated by malice. If no evidence be given warranting such a conclusion, the complaint should be dismissed. Ashcroft v. Hammond, 197 N. Y. 488, 90 N.E. 1117. Malice, however, does not mean alone personal ill will. It may also mean such a wanton and reckless disregard of the rights of another as is ill will's equivalent. This means more than mere negligence or want of sound judgment. Hesketh v. Brindle, 4 Times L. R. 199. It means more than hasty or mistaken action. Hemmens v. Nelson, 138 N. Y. 517, 34 N. E. 342,20 L. R. A. 440. If the defendant made the statements in good faith, believing them to be true, he will be protected, even if a man of wider reasoning powers or greater skill in sifting evidence would have hesitated. Clark v. Molyneux, 3 Q. B. Div. 237. So if he fairly and in good faith relies on...