Slocinski v. Radwan

• Decision Date: 05 February 1929
• Docket Number: No. 2238.,2238.
• Citation: 144 A. 787
• Parties: SLOCINSKI v. RADWAN. SAME v. STEC. SAME v. KROLIKOWSKI. RADWAN v. SLOCINSKI.
• Court: New Hampshire Supreme Court

144 A. 787

SLOCINSKI

v. RADWAN.

SAME

v. STEC.

SAME

v. KROLIKOWSKI.

RADWAN

v. SLOCINSKI.

No. 2238.

Supreme Court of New Hampshire. Hillsborough.

Feb. 5, 1929.

Exceptions from Superior Court, Hillsborough County.

Actions by Roman W. Slocinski against Franciszeh Radwan, Frank Stec, and Stanley Krolikowski, and by Frank Radwan against Roman W. Slocinski, were tried together. Verdicts for plaintiff in the first three cases, and defendants bring exceptions, and verdict for defendant in the fourth case, and plaintiff brings exceptions. New trial ordered in first three cases, plaintiff's exceptions overruled in fourth case.

The first three actions entitled as above are case for slander; the fourth is case for unlawful interference with the customers of the plaintiff Radwan, who is the defendant in the first suit. The four actions were tried together before Burque, J., and a jury, with verdicts for the plaintiff in the first three cases and for the defendant in the fourth. The three slander cases were transferred upon the exceptions of the defendants to certain rulings upon questions of evidence and to the charge. The fourth action comes here upon the exceptions of the plaintiff Radwan to the denial of his motion to set aside the verdict.

Roman W. Slocinski, hereinafter called the plaintiff, is the pastor of the Holy Cross Church in Manchester, and is variously referred to in the record as the "priest" and the "bishop." This church is an independent, self-governing corporation, having a capital stock and possessing full powers to hire and discharge its pastor. At the time of the occurrences involved herein, the defendants, Radwan, Stec, and Krolikowski, were all members of the congregation and contributors to the church society, while Radwan and Krolikowski owned shares of the capital stock of the corporation.

The defamatory words attributed in the writ to the defendant Radwan were: "He (meaning the plaintiff) is stealing the church money; look out for the church money in the bank. He is not a bishop, and not even a priest. When he went to Albany with the church committee to buy a bell for the church he did not return home with the committee, but he remained over in Albany and stayed with a woman." In the case of the defendant Stec, the alleged words were: "He (meaning the plaintiff) is married and has children. He is a degenerate." In the case of the defendant Krolikowski, the alleged words were: "He (meaning the plaintiff) is a thief; he is married and has children; he robbed the parish; he, through robbing, is going to destroy the parish; he has had children by girls in other parishes where he has been." Other facts are stated in the opinion.

Maurice F. Devine and John E. Tobin, both of Manchester, for Slocinski.

Osgood & Osgood and Anson G. Osgood, all of Manchester, for Radwan, Stec, and Krolikowski.

BRANCH, J. 1. The plaintiff's evidence tended to prove that all three of the defendants circulated reports that he had been guilty of criminal conduct with women and girls in other places. The defendants denied using much of the language attributed to them, but they placed their chief reliance upon the defense of privilege. They claimed that most of the statements which they had made embodied information which had come to them in documentary form from sources which appeared to be reliable; that these statements were addressed in every instance to fellow members of the Holy Cross congregation; and that in attempting to expose the alleged disqualifications of the pastor they acted without malice, solely for the benefit of the parish. In this situation, the court charged the jury as follows: "What I am going to give you in regard to the law, as to qualifiedly privileged communications, Mr. Foreman and gentlemen, I wish you to remember distinctly. It does not apply to these imputations which include the commission of a crime and for which the plaintiff could be prosecuted, such as being a thief or being with women, or having children by women in other parishes, etc., these communications, if made, can never be privileged. Consequently, when I talk about communications qualifiedly privileged, I talk about communications or accusations which might disqualify the Bishop here as Pastor of the Parish, but falling short of the commission of a crime. * * * I repeat if these statements were made and published of another, they are allegations of crime and would be actionable per se and would not be privileged."

These statements of the law were clearly erroneous, as the plaintiff concedes. "In the absence of malice, an utterance may be qualifiedly privileged even though it is not true and notwithstanding the fact that it contains a charge of crime." 17 R. C. L. tit. Libel and Slander, § 88; Moore v. Butler, 48 N. H. 161, 165; Lafferty v. Houlihan, 81 N. H. 67, 121 A. 92.

The destructive effect of this erroneous charge upon one of the most important contentions made by the defendants is obvious, but the plaintiff argues that they were not harmed by it, because upon another ground the claim of privilege was untenable. His position is thus stated in his brief: "If these defendants had any right whatsoever to publish the statements that they did concerning the plaintiff, that right existed only at a duly called meeting of the committee and/or of the parish where an established tribunal had some duty to perform, some power of action in relation to the charges against the pastor. * * * In order to benefit by the doctrine of privileged communication, the defendants must show that derogatory statements were made at a place properly established for the purpose of hearing the charges and in accordance with the uses and discipline of that particular Church."

The above propositions are unsound. There is no rule of law which limits the occasion when church members may, without liability for slander, discuss among themselves the qualifications of their pastor to committee meetings or parish gatherings. On the contrary, such discussions are governed by the general rule that "a communication made in good faith on any subject-matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation." 17 R. C. L. tit. Libel and Slander, § 88; Moore v. Butler, 48 N. H. 161, 166; State v. Burnham, 9 N. H. 34, 31 Am. Dec. 217; Shurtleff v. Stevens, 51 Vt. 501, 31 Am. Rep. 698; Bower, Defamation (2d Ed.) 116, 117; Odgers, Libel and Slander (5th Ed.) 280. "If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society, and the law has not restricted the right to make them within any narrow limits." Baron Parke, in Toogood v. Spyring, 1 C, M. & R. 181. It is to the general interest of society that correct information shall be obtained as to the character of persons in whom others have a common interest, and hence the law grants to all the privilege of giving information concerning private individuals when given bona fide and to a person having a corresponding interest in the subject. Shurtleff v. Stevens, supra. The law lays down sound, practical rules which, while they give no countenance to defamation, protect all in publishing, upon lawful occasions, "what they have reason to believe the truth, if it is done with motives which will bear examination." State v. Burnham, 9 N. H. 34, 46 (31 Am. Dec. 217).

It is hard to imagine a more obvious example of common interest than that which is shared by the members of a church in the character and conduct of the minister, since these factors determine his capacity for spiritual leadership. No minister can expect, nor should he desire, that the question whether he measures up to the standards of behavior or ability demanded by his parishioners will not be debated in private conversations by members of his congregation. More often than otherwise, such discussions tend to enhance his prestige and increase his influence; but, in any event, they constitute the raw material out of which the prevailing sentiment of the parish in regard to the usefulness of the preacher is evolved. This is the normal way in which public sentiment upon any matter of common concern is developed.

The idea that the conduct of a minister should be mentioned unfavorably only at church meetings, or before tribunals having authority in the premises, suggests an undesirable departure from the usual course of events. Charges against clergymen publicly made before church bodies are happily the exception rather than the rule. Individual church members are not accustomed to bring the various items of gossip which may be in circulation about the minister to the attention of the governing boards of the church, nor is it desirable that they should do so. The high esteem in which clergymen are usually held by...