Flanagan v. McLane , 87 Conn. 220 ( 1913 )

The law implies malice from a libelous publication, except in certain cases of privilege, one of which is when "the author and publisher of the alleged slander acted in the bona fide discharge of a public or private duty, . . . or in the prosecution of his own rights or interests. . . . A privileged communication means nothing more than that the occasion of making it rebuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff, and throws upon him the onus of proving malice in fact; but not of proving it by extrinsic evidence only; he has still a right to require that the alleged libel itself shall be submitted to the jury, that they may judge whether there is evidence of malice on the face of it." White v. Nicholls, 44 U.S. (3 How.) 266, 286, 287.

Whether a publication is libelous per se is a question for the court. Donaghue v. Gaffy, 54 Conn. 257, 266,7 A. 552. Whether the occasion is one of privilege is also a question of law for the court. Atwater v. MorningNews Co., 67 Conn. 504, 513, 34 A. 865; Hassett v.Carroll, 85 Conn. 23, 36, 81 A. 1013. Whether the defendant in the use of the privileged occasion was or was not actuated by malice in fact, is a question for the jury. Donaghue v. Gaffy; Atwater v. Morning News Co.,Hassett v. Carroll, supra.

No complaint is made on this appeal in regard to the rulings or charge of the court, and the only alleged error is the denial by the court of the plaintiff's motion to set aside the verdict as against the evidence.

As to the count in slander, the evidence was conflicting and affords reasonable basis for the verdict. So far as the counts in libel are concerned, the only question raised by this appeal is whether there was evidence from which the jury might reasonably have found that the defendant, in writing the letters complained of, was not actuated by malice in fact. We think, from an examination of the evidence, that the jury might properly have come to the conclusion, from the defendant's own testimony, that she honestly believed that the plaintiff or his helper had taken her money, and that the letters in question were written in that belief and without malice in fact.

It is claimed in appellant's brief that the letter set out in the second count, which was written to the officer after the money was found, is beyond the pale of privilege, because the defendant was not then in the discharge of any duty or engaged in an effort to recover her money. But, as already pointed out, the question whether the letter was, or might be, if the facts pleaded in the answer were proved, a privileged communication was a question of law for the court; and it nowhere appears that the plaintiff made the claim in the court below, as a claim of law, that the letter was not privileged.

The motion to set aside the verdict is on the single ground that it is manifestly against the evidence. The question whether the letters themselves were privileged communications, on the facts pleaded, was a question of law for the court and is not brought up by this appeal.

We think that the letter set forth in the second count, although written after the money was found, must be dealt with as a part of the whole correspondence between the defendant and the officer. It is not very seriously disputed that the first letter to Sturtze, written before the money was found, is on the facts pleaded, a privileged communication. Sturtze was a constable, and the defendant appealed to him to investigate her loss with a view to get "evidence and threaten them with arrest." She was concerned more with using the law in terrorem than with the punishment of the supposed thief. Then, when the money was found, she again writes the officer, telling him that it is found, but in a place where she never put it; that she will do no more about the matter; and that she is still satisfied that the plaintiff took it and brought it back again. Clearly this second letter would never have been written except for the first. The defendant was in a way bound to let the officer know that the money had been found, and if she said no more her letter would be taken as an admission that her former suspicions were mistaken. We think, under these circumstances, that the defendant, in writing to an officer already engaged in investigating the loss, was legally entitled, if acting honestly and without malice, to reaffirm her belief in the plaintiff's guilt, for the guidance of the officer in case it was, or might become, his duty to pursue the investigation with a view to criminal proceedings.

There is no error.

In this opinion PRENTICE, C. J., and THAYER, J., concurred.