Pecue v. Collins , 204 A.D. 142 ( 1923 )

Kiley, J.:

To affirm this judgment will have the effect of bestowing upon a corporation of the State of New York, described in its certificate of incorporation as “ The New York Civic League,” administrative and judicial functions. Its purpose as set forth in its certificate is as follows: “ To educate and elevate public sentiment along all lines of moral, social and political progress and efficiency but especially with reference to temperance, gambling, Sunday observance, social purity, divorce and the preservation of the democratic principles of our government, and to secure the passage and enforcement of laws along all such lines in the United States, but especially in the State of New York.” The purposes set forth are admirable and commendatory; but it contains none of the characteristics of a detective agency, and the State, by the certificate of incorporation, does not delegate to it any authority to enforce the law nor to engage in the administration of justice. Before the law it stands on the same level as any ordinary citizen. The defendant, by paying one dollar, or as much more as she chose, could and did become a member of this league. As such member, on the 18th day of October, 1918, she wrote to a Mr. Miller, superintendent of said league, a letter in which she said of and concerning the plaintiff: “ Mr. Pecue, who kept a saloon near the railroad crossing, has been and is keeping a disorderly house.” For some reason which does not clearly appear, on the 22d day of October, 1918, she wrote another letter, destination the same, in which she charged the plaintiff as follows: “ Chas. Pecue, Potter Ave., who kept a saloon, is keeping girls for immoral purposes. One was taken to the hospital sick and another taken into the hospital off the street.” These letters were handed by Miller to one West, and by him the libel was handed on to the district attorney of Washington county, and so published to the world. The plaintiff is the father of eight children who, with his wife, lived with him in his home at Granville, N. Y. So far as any specific evidence contained in this record is concerned, none of these charges were true. This action was brought by the plaintiff. The defendant, in her answer, admits that she wrote the letters containing the charges set forth in the complaint, and justifies such acts as privileged. Mr. Justice Hinman does not uphold her contention, as to privilege, to the full extent, but holds that the communications “ were qualifiedly privileged.” Such holding is based upon the assumption that having written to the league, or an officer thereof, she was relieved from any responsibility therefor, and immune from censure or claim for damage. Will it be claimed that if defendant had written the same charges to any citizen or officer of any other civic organization, she would not be guilty of publishing a libel; libelous per se. The party to whom she made those charges in writing had no more privilege before the law thán any other citizen. Qualified privilege differs from absolute privilege only in that it casts the burden of proof of malice on the plaintiff; we so held in Walmsley v. Kopczynshi (202 App. Div. 104) and cases cited. It is urged that defendant swore she had no malice against plaintiff in making the charges; that, therefore, as was said by the learned trial justice, plaintiff failed to bear the burden of proof. That is not the test here. In Pecue v. West (233 N. Y. 316), an action in which qualified privilege and more was urged as a defense, the court said: “ Malice, however, does not mean alone personal ill-will. It may also mean such a wanton and reckless disregard of the rights of another as is ill-will’s equivalent.” In Rose v. Imperial Engine Co. (110 App. Div. 437) the court said, citing Byam v. Collins (111 N. Y. 143): “ In that case it is shown that the essential element to support the claim of privilege is good faith, and that good faith can only be established by proving that ordinary care and prudence were exercised by the person making the charges to ascertain whether they were true or false.” Let us see how the defendant met this test. Cross-examination: “ You realized what it meant to Mr. and Mrs. Pecue to be charged with keeping girls for immoral purposes? A. I don’t think I thought particularly about it. Q. You didn’t give consideration to the enormity of the charge? A. I didn’t because-. Q. What might result to them as a result of the charge, should it be false, didn’t enter your mind when you made the charge? A. May I give you a quotation? Q. No, give me an answer. A. If it were not true, it wouldn’t injure them. Q. What might result to them as a result of the charge, should it be false, didn’t enter your mind when you made the charge? Yon didn’t think what might be the result to them of your making this charge, should it prove false? A. No, I don’t think I did in that sense. * * * Q. You didn’t weigh that in your mind at the time you made this charge? A. No.”

When asked if she knew whether there was any girl at the plaintiff’s on the eighteenth of October when she wrote the first letter she answered: “ I don’t know. * * * I don’t know anything about it.” Again: “ Q. It was easy enough for the person that was chatting with you about Miss Tucker to have gone there and made inquiry of them [neighbors], wasn’t it? A. I wasn’t making any inquiries. * * * Q. You had no personal knowledge of the situation at Mr. and Mrs. Pecue’s at the time you wrote the letters, of what was transpiring there? A. No.” Defendant also testified that she did not think any of the people with whom she had talked about the matter had any personal knowledge of the offenses charged. It is urged that defendant had influenza, was not well, and believed the gossip she had heard was true. I fail to see how such condition of health can be urged as establishing a privilege; it is not claimed that she was incompetent by reason thereof, or that her tongue or pen was affected. Judge Andrews in Moore v. Francis (121 N. Y. 199, 207), reversing a judgment for the defendant in an action for libel, said: “ The evidence renders it clear that no actual injury to the plaintiff was intended by the defendants, but it is not a legal excuse that defamatory matter was published accidentally or inadvertently, or with good motives and in an honest belief in its truth.” (See, also, Smith v. Matthews, 152 N. Y. 152.) It is urged that plaintiff was assured by the literature of the league that she would be protected; that no matter what she charged people with it should be treated as confidential; that no harm should come to her, and that by reason of such assurance she should be held harmless. It was not treated as confidential, and it was untrue. I find no reason for regarding the wrong done plaintiff of less importance than the inconvenience defendant’s acts have or may cause her. We must look at the case as we find it; the question is not new; the books are full of similar situations. It is not suggested nor intended to be suggested that plaintiff should have a verdict at the hands of the court or jury. Two vital questions are presented: First. Are we going to hold that, because a person belongs to this league, he or she is relieved from responsibility for any and all vicious, libelous and slanderous charges he or she, through the league, publishes to the world? Second. Are we justified in holding that the trial court in this case had a right to usurp the function of the jury? As to the first question, the Civic League is no part or parcel of the administrative machinery of the State or the United States. It does not possess a single attribute of a court, prosecuting attorney, or jury; its function is advisory; its use as a shield to protect wrongdoers was never contemplated; none would repudiate such suggestion quicker or more emphatically than the New York Civic League. As to the second question, supra, in Tim v. Hawes (97 Misc. Rep. 30) the court, after considering numerous eminently respectable authorities, lays down a rule, with which I am in accord, as follows: “ Actual malice may be established as follows: (1) By proving actual ill-will. In addition to the ordinary methods of proving ill-will, the words complained of may of themselves afford the proof, where, for example, an attack is couched in such venomous language and so plainly exhibits hatred as to warrant an inference of actual ill-will. (2) By proving such gross negligence and carelessness as indicate a wanton disregard of the rights of others. (3) When the words complained of are proved as a fact to be false, if they are of a heinous, atrocious or extreme character, that, too, is evidence of actual malice.”

Even if the charges made by defendant are to be held as coming under the rule of qualified privilege, in which I do not concur, the last subdivision quoted above applies. (13 Am. & Eng. Ency. of Law, 425, 426.) The only explanation or excuse given for the conceded libelous statements contained in her letter was that she belonged to the league. As to whether that was sufficient to accord to her a qualified privilege was not a question of law for the court; it was a question of fact for the jury. (Byam v. Collins, 111 N. Y. 151; Hamilton v. Eno, 81 id. 122; Grant v. Herald Co., 42 App. Div. 354; Cohalan v. New York Press Co., 212 N. Y. 347; Warner v. P. P. Co., 132 id. 181; Saunders v. Post-Standard Co., 107 App. Div. 84; Payne v. Rouss, 46 id. 315.)

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

H. T. Kellogg, Acting P. J., and Hasbrouck, J., concur; Hinman, J., dissents, with an opinion in which Van Kirk, J., concurs.