Dennehy v. O'Connell

Andrews, C. J. The demurrer to the complaint was properly overruled. The article published by the defendant might have been privileged, if made without malice. As it is charged to have been made with malice, and “ with the deliberate purpose and intention of injuring the plaintiff and causing bis dismissal from the police department,” it is clearly actionable. A publication which would be privileged if made without malice may become libelous if maliciously made. The general rule in respect to privileged communications is that the plaintiff is required to bring home to the defendant the existence of malice as the true ground of his conduct. Malice may be alleged and proved to have existed in proceedings before such tribunal as is referred to in the complaint, although such tribunal may have been the appropriate authority for redressing the grievance represented to it; and proof of express malice in any written publication, petition, or proceeding addressed to such tribunal, will make the publication, petition or proceeding, actionable. Folkard’s Starkie on Slander, 506, 507; Blakeslee v. Carroll, 64 Conn., 235. Upon the cross-examination of the plaintiff, the defendant’s counsel asked him if the defendant and himself had not had a dispute about a liquor bill. This question was asked for the purpose of discrediting the plaintiff, and to show that he was interested. The plaintiff had the clear right to explain that claim, and to show just what it was. Every witness, whether on his examination in chief or on his cross-examination, has a natural right to explain and make clear the evidence he has given. Swift’s Evidence, 111. The whole matter was within the discretion of the judge, and is not the subject of error. The question asked of the witness Bollmann was properly ruled out. It is difficult to perceive why it was asked. The defendant offered to show that at the time he was on trial in the Police Court on the charge of violating the liquor law, he asked the judge of that court to go and view the premises where it was claimed the pipe had been seen. This offer was ruled out. As the trial in the Police Court was nine days after the time when the witness claimed to have seen [182] the pipe in the bedroom, the willingness of the defendant to have the room examined on that day might have suggested to the Police Court that the room was not on that day in the same condition it was on the day the witness claimed to have seen it. The offer amounted to no more than a declaration by the defendant that he was innocent. There was no error in the ruling. The witness McDonald testified that he put the pipe in the bedroom, in the place where the plaintiff stated that he had seen it; McDonald had testified to the same thing on the hearing before the police commissioners. At the present trial the defendant claimed to show that at the said hearing before the police commissioners, one McGovern was called as a witness and testified that McDonald had told him, McGovern, that he, McDonald, had put the pipe into the bedroom. It is not claimed that either McGovern or McDonald testified falsely. It is claimed now that the order in which these witnesses were called at the police hearing, had some sort of an influence on McDonald unfavorable to the defendant. It does not appear very clearly how. The argument in this court seems to be, that unless McGovern had been called and had testified as he did before McDonald was called, that he, McDonald, would have denied that he put the pipe in the bedroom, and would.have said that he put it in the bar-room. In other words that McDonald might have denied a fact which he knew to be true. As so presented the claim of the defendant is that he was injured, because he was not allowed to show that at the police hearing the plaintiff took such a course in putting in his evidence that he prevented the witness McDonald from being drawn into a prevarication. It does not appear to this court that the defendant has any just ground for complaint. The publication referred to as Exhibit A, contained various statements other than the one that is recited in the complaint; one of which is to the effect that at the said trial before the Court of Common Pleas, the plaintiff testified that the said bedroom was painted white, when in fact it was painted a dark color. Upon the trial of the present cause the defend [183] ant offered to prove that said testimony was false, and to show that that allegation in the said Exhibit A was true. This evidence was not offered to contradict anything the plaintiff had said on the present trial. To this evidence the plaintiff objected, on the ground that the truth or falsity of that allegation in Exhibit A was not raised by the pleadings. The court sustained the objection. We are of opinion that this ruling was correct. The plaintiff excluded from his complaint all the parts of Exhibit A except the portion which he recited, and did this designedly. He says “ a copy of said written document containing said publication, being the Exhibit A now on file in this cause.” We have underscored some of the words in order to bring out the meaning which it seems to us, the plaintiff intended to convey. The clear reference to this part of Exhibit A would show that the other parts were intended to be excluded. To be sure, the second defense says that all the statements and allegations relating to the plaintiff appearing in Exhibit A are true. It is a general rule that all pleadings should be such as to fairly apprise the opposite party of the facts intended to be controverted. If by his second defense the defendant intended to put this allegation of Exhibit A into the case, he should have done so in some distinct manner, as by a recital, or by an express reference. Not having done anything of that kind, the plaintiff had the right to assume that he referred to Exhibit A in the same sense that the complaint had referred to it; and that the defense intended to aver no more than that the portion of Exhibit A set out in the complaint, was true. The court apparently took this view of the answer, and we think was amply justified in so doing. The case presented by the finding is a peculiarly aggravated one, where a malicious libel making a willfully false charge against the plaintiffs has been supported by repeated and industrious perjuries. The damages are not excessive. There is no error. In this opinion the other judges concurred.