The action consists of three separate counts in libel and one count in slander.
It could not be held that the verdict of the jury upon the issues presented under counts one and four, for libel, and count three for slander, might not reasonably have been rendered.
Count two recites that on March 31st, 1912, at Hamden, the defendant published a letter addressed to Frederick Sturtze as follows: "I wrote you a few weeks ago about some money we had stolen, and as I have heard nothing from you concluded that you haven't done anything about it. I write now to say we have found the money stowed away in a place where we would never have put it, so we think that after they found we suspected them, they returned it and hid it in that place, for Mr. Flanagan kept saying, `Hasn't *Page 225 it been mislaid?' Of course we are very glad to get the money and shall do nothing further about it, although I am perfectly satisfied in my mind that Mr. Flanagan took it, for he acted guilty." And it further recites that the publication was false and malicious.
The defendant makes the first defense of her answer — privileged communication — the second defense of her answer to the second count. The first defense was made as an answer to all the counts; in reality it is a defense to the first count alone. That count recited that the defendant had published a certain libel of the plaintiff on March 5th, 1913, in a letter addressed to Frederick Sturtze. It set up that she, believing certain moneys belonging to her had been stolen, wrote to Mr. Sturtze, a peace officer of Hamden, requesting him as such peace officer to investigate the facts set forth in the letter recited in count one; and further, that her letter was written without malice against the plaintiff, in an honest endeavor to recover her property by making a complaint to the proper authority for his investigation, and was a privileged communication. The libel set forth in the second count was published in another letter and on another day, and constituted an independent cause of action. Therefore the so-called first defense — privileged communication — to the first count, has no relation to the cause of action set up in the second count.
The second count on the record stands unanswered. The opinion of the court concedes this. In the statement of facts accompanying the opinion the court say: "Technically, and by reason of verbal inaccuracy, the second count stands unanswered; but the intent to plead the same defense to the second count as was pleaded to the first is manifest, and the case was tried to the court below, and argued here, as if the issues bad been so formulated." *Page 226
I do not find these admissions stated in the record. Nor do I find them in the brief or oral argument of the plaintiff. I think the court had no right to disregard the pleadings as made by the parties.
But if the defendant had pleaded privilege, as she may have intended, her plea would have been ineffective, just as the facts in evidence are ineffective, to establish that this letter was a privileged communication. The defamatory publication charging a crime, not being denied, stood admitted and made out a prima facie case against its author, and from its publication the law presumes it is false, imputes malice to its author, and presumes some damage. Atwater v. Morning NewsCo., 67 Conn. 504, 521, 34 A. 865; Donaghue v. Gaffy,53 Conn. 43, 51, 2 A. 397; Swift v. Dickerman,31 Conn. 285, 293; Bacon v. Michigan Central R. Co.,55 Mich. 224, 21 N.W. 324; Newell on Slander Libel (2d Ed.) § 19, p. 770; 2 Greenleaf on Ev. (16th Ed.) § 418. But if the publication could be shown to have been a qualified or conditionally privileged communication, the presumption of falsity and malice is rebutted, and the burden of proving that the publication was made with express malice is on the plaintiff, for on one has a qualified privilege to maliciously libel another.Atwater v. Morning News Co., 67 Conn. 504, 518,34 A. 865; Barry v. McCollom, 81 Conn. 293, 297,70 A. 1035; Hassett v. Carroll, 85 Conn. 23, 35, 81 A. 1013;Nichols v. Eaton, 110 Iowa 509, 512, 81 N.W. 792; note to Denver Public Warehouse Co. v. Holloway, 3 L.R.A. (N.S.) 697 (34 Colo. 432, 83 P. 131); note to Sunley v. Metropolitan Life Ins. Co., 12 L.R.A. (N.S.) 91 (132 Iowa 123, 109 N.W. 463).
If circumstances came to the knowledge of the defendant which caused her to believe a crime had been committed, it was her civic duty to state to the authorities what she knew and believed; on ground of highest *Page 227 public policy her communication would be a qualified or conditionally privileged one. Eames v. Whittaker,123 Mass. 342, 344; Brow v. Hathaway, 95 Mass. (13 Allen) 239, 241; Newell on Slander Libel (2d Ed.) §§ 96, 98, p. 500.
Moreover, since the defendant had an interest in the recovery of the money and the person to whom she made the communication had a duty to discharge respecting this, she had, so long as she did not act with express malice, the right to communicate to the peace officer the circumstances attending the loss of her money together with her suspicions and belief and every circumstance relevant to the detection of the theft. She must not make such a charge recklessly, or wantonly, or without circumstances reasonably arousing suspicion. Protection against the consequences of a defamatory charge through the privileged character of the charge requires an occasion of privilege and a privileged use of the occasion. Hassett v. Carroll,85 Conn. 23, 81 A. 1013. Whether the occasion upon which this letter was written was a privileged one is one of law for the court. Whether the use of the occasion was privileged is a question of fact, and ordinarily for the jury. Hassett v. Carroll, supra; 1 Cooley on Torts (3d Ed.) [*] 251. But where, as in this case, the facts are not in dispute, whether the use of the occasion was privileged becomes a question of law.
The letter clearly charges the plaintiff with the theft of the defendant's money. It was not written the peace officer for the purpose of having him investigate the theft; nor in furtherance of any feature of the case. It was written primarily to have the peace officer desist from the investigation of the theft of which the defendant had complained to him over three weeks previously.
Belief in the charge did not justify her in its reiteration *Page 228 upon withdrawal of it from the officer. She was not engaged in the performance of a public duty nor in the fair protection of her rights in renewing her charge against the defendant. She had no more right to libel the plaintiff in a communication to the peace officer than in one to any other person. Had her communication been made in furtherance of the detection of the theft or the prosecution of the crime, the occasion might have been a qualifiedly privileged one. "It must appear that they [the words] were spoken by defendant in the discharge of some public or private duty, legal or moral, and with that end and purpose in view, . . . and that they were spoken for the protection of such interests, and were relevant and proper in that connection. It must also appear that they were uttered in good faith, and in the honest belief that they were true."Quinn v. Scott, 22 Minn. 456, 462; Burch v. Bernard,107 Minn. 210, 212, 120 N.W. 33; Dale v. Harris,109 Mass. 193, 196; Ashcroft v. Hammond, 197 N.Y. 488, 494,90 N.E. 1117.
This letter was not of this character, and in my opinion was not privileged; if this were not so, it is perfectly clear that the use made of the occasion was not privileged. The opinion holds that it was incumbent upon the plaintiff to have claimed in the court below that this letter was not privileged. On the contrary, as it seems to me, the defendant and not the plaintiff had the burden of proving the surrounding circumstances establishing the privilege. The opinion holds that the question whether the letter was privileged was a question not brought up by the appeal, since the case is before the court upon a motion to set aside the verdict as against the evidence. We must determine whether, on the issues raised, a cause of action was established. If there was a cause of action, unless the letter were privileged, the court cannot *Page 229 determine whether the plaintiff was entitled to a verdict without passing upon the issue of whether this letter was privileged. To me this seems self-evident.
The opinion further holds that the defendant had the right, under the circumstances, "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."
This conclusion is, I believe, against all authority. The defendant was not engaged in the performance of a public duty, nor in the fair protection of her rights in renewing her libelous charge. She wrote to notify the constable to desist from his investigation. He had then been doing detective work for her in getting evidence, and expected her to pay him for his services. I repeat, her belief in the charge and her freedom from malice did not justify her renewal of the charge of theft to the public officer in discharging him from her service. In my opinion the verdict should be set aside and a new trial granted as to the second count.
RORABACK, J., although dissenting, did not concur in this opinion.