Posnett v. Marble
| Decision Date | 23 September 1890 |
| Citation | 20 A. 813,62 Vt. 481 |
| Parties | CATHERINE POSNETT v. SUSAN MARBLE |
| Court | Vermont Supreme Court |
GENERAL TERM, OCTOBER, 1889.
Judgment reversed. New trial granted on condition that plaintiff pay defendant's costs heretofore incurred in the court below, and take no costs for that time in the event of a final recovery; and if a new trial is not desired upon these terms, plaintiff to become non-suit. Cause remanded.
Geo Wing, W. P. Dillingham and E. A. Heath, for the defendant.
The plaintiff was an applicant for appointment as postmistress at the North Fayston office. The defendant's husband was an applicant for the same position. One Chase, a post office inspector, was engaged in inspecting this office. While so engaged he procured the defendant's attendance at the office, and questioned her in regard to the plaintiff. The defendant at first declined to say anything about the plaintiff, whereupon Chase told her it was his business as inspector to make the inquiry and her duty to give him the information. The defendant then had a conversation with Chase concerning the plaintiff, in which it was claimed she used the words set forth in the third count. The testimony offered in proof of what the defendant said was objected to on the ground that the communication was privileged. The court received the evidence, but told the jury in submitting the case that the occasion was in a sense privileged; and further instructed them that if the defendant said what she did in good faith and without malice she would not be liable, but that if she improved the occasion to maliciously make false charges against the plaintiff she would be liable therefor. To such admission of evidence and to this part of the charge the defendant excepted.
The plaintiff was an applicant for appointment to a public office. In view of her application, her character was a matter of public concern. The defendant was a member of the community immediately interested in the result of the application. Her conversation was with one who she might naturally suppose could prevent the appointment. The circumstances were such as to justify the defendant in communicating what she honestly believed as to the plaintiff's conduct and character. The selection of suitable persons for the performance of official service is essential to the interests of both the government and the citizen. These interests can be protected only by the communication of information and by free discussion concerning the fitness of applicants. It would tend to repress this necessary freedom, and would be a manifest injustice to the citizen, if communications of this character subjected the person making them to the payment of damages in the event of an honest mistake. But these considerations disclose no necessity for a privilege broad enough to cover charges which are unfounded and malicious. A just distinction is established, and reasonable protection afforded to every interest, by holding communications of this nature to be prima facie privileged. By virtue of this privilege a defendant who has made a statement which cannot be substantiated is relieved from the effect of a legal presumption of malice, and is made liable only by proof of actual malice. The occasion in question was not one of absolute privilege, but was so far privileged as to protect a communication made in good faith and from an honest motive. The testimony objected to was properly admitted, and the charge of the court as to the nature and limitation of the privilege was correct. Town. Sland. s. 209; 1 Am. Lead. Cas. 166.
The plaintiff was permitted to show by the person who served the writ what the defendant said on hearing it read. This was under objection and exception. The exceptions show what counsel anticipated the testimony might be, but do not state what the testimony was. In the charge it was treated as testimony to admissions of the defendant, and no exception was taken to this as unwarranted by the evidence. The exceptions disclose no error.
The defendant excepted to the charge as to the degree of precision required in establishing the defamatory words. The court first instructed the jury that the plaintiff must prove the words alleged in the declaration substantially as laid, and afterwards said it was not necessary that they should find the defendant used the precise words alleged, but that they must find the charge was made substantially in the words set forth. This is in accord with the rule deduced from the authorities and laid down in Smith v. Hollister, 32 Vt. 695. We think it was sufficiently explicit. It left no room for the jury to suppose that proof of other words of substantially the same meaning would entitle the plaintiff to recover.
Several points are made under the motion in arrest. No special damages were shown. The words charging the disease were justified, the plaintiff conceding the fact. The case stood upon the charge of keeping a house of ill-fame. It is urged that words charging one with keeping a house of ill-fame merely are not actionable per se. The statute provides for the punishment of one who keeps "a house of ill-fame resorted to for the purpose of prostitution or lewdness." The innuendo in each count explains the words spoken as meaning to charge the plaintiff with keeping "a house of ill-fame," without using the further words of the statute. It is said there are several kinds of houses of ill-fame, and that as the matter is left by the pleader, the words must be taken to mean a house of ill-fame of a more innocent character than the one described in the statute. Both at common law and in common language the term "house of ill-fame," without words giving it a special application, means a house resorted to for prostitution. Bouvier defines a house of ill-fame to be "a house resorted to for the purpose of prostitution and lewdness." Thus, to charge one with keeping a house of ill-fame is to charge the exact offense punished by our statute. The innuendo is sufficient in this respect, unless it is necessary, in alleging that a statutory offense was intended, to use the entire language of the statute. We do not think this strictness is required.
It is further insisted that if the words are sufficient to charge the crime described in the statute, the punishment of the crime is not an infamous one, and that the words are therefore not actionable. This claim is in view of the fact that by the statute of 1884 the punishment was changed from imprisonment in the State prison to imprisonment in the house of correction. But it is sufficient if the punishment is corporal; the place of confinement is not the test. The crime charged is one that involves moral turpitude and subjects the offender to imprisonment, and the words are therefore actionable. Redway v. Gray, 31 Vt. 292.
It is also objected that in neither count is there an averment that the plaintiff had a house. As regards the first and fourth counts, in which the defendant is charged with using words directly denoting the possession of a house, this is no defect. When the slanderous words themselves import the existence of the thing it is not necessary to aver its existence. Town. Sland. s. 308, n; 1 Chit. Pl. 403. The slander is the same whether the falsity of the charge relates only to the character of a house or includes the existence of one.
The defamatory words relied upon in the first count are "She keeps a common open house; she is nothing but a whore anyway," and the meaning assigned is that she kept a house of ill-fame. The question is not, as assumed by the defendant, whether this is the only natural meaning of the words "common open house." In determining the...
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