Sweeney v. Higgins

• Citation: 104 A. 791
• Parties: SWEENEY v. HIGGINS.
• Decision Date: 04 November 1918
• Court: Maine Supreme Court

104 A. 791

SWEENEY

v. HIGGINS.

Supreme Judicial Court of Maine.

Nov. 4, 1918.

Agreed Statement from Supreme Judicial Court, Cumberland County, at Law.

Action by Charles E. Sweeney against Fred W. Higgins, submitted to law court upon an agreed statement of facts. Judgment for defendant.

Argued, before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, DUNN, and MORRILL, JJ.

William A. Connellan, of Portland, for plaintiff.

Jacob H. Berman, of Portland, and Benjamin L. Berman, of Lewiston, for defendant.

CORNISH, C. J. This is an action on the case for libel, brought by a police officer of South Portland against an alderman of the same city, and is submitted to the law court upon an agreed statement of facts.

The alleged libel is based upon the following written charges which were presented by the defendant against the plaintiff: "To the Honorable Mayor and City Government of South Portland:

"Respectfully represents Fred W. Higgins, of South Portland, who gives this body to understand that Charles E. Sweeney, of said South Portland, has been acting as an officer of said South Portland; that he has been unmindful of his duty; that he has attempted to extort money from the city of South Portland, by attempting to collect for services after having been paid by the Cumberland County Power & Light Company. Wherefore your petitioner prays that the said Sweeney may be ordered to appear and show cause why he should not be discharged from the force.

"Dated at South Portland this eighth day of August, A. D. 1916.

"[Signed] Fred W. Higgins."

It is admitted that the defendant, while an alderman and at a meeting of that board, presided over by the mayor, presented the foregoing charges; that at the time in question police officers' of that city were appointed by the mayor, and his appointments were confirmed by the board of aldermen; and that after these charges were preferred an investigation was had, and the plaintiff was exonerated. It does not affirmatively appear that these officers were subject to removal by the mayor and aldermen; but such is the fair inference, from the fact that the appointment was made by the mayor, subject to confirmation by the aldermen (Andrews v. King, 77 Me. 224), and from the further fact that this communication was addressed to them, and cognizance thereof was taken, as an investigation leading to exoneration was subsequently made.

These admitted facts bring the written charges within the class of what is known as conditionally privileged communications, which are not actionable, unless proved to be malicious, and the burden of proving malice by affirmative evidence rests upon the plaintiff. No evidence of malice is submitted by the plaintiff in this case. The burden is not met. The condition is not removed.

It is a settled principle of the law of libel that no action lies for a petition or communication imputing want of integrity, or other ground of unfitness, to a public official or employe, who is subject to removal by the board or officer to whom the petition or communication is addressed, provided such...