Opinion
October 9, 1908.
Edward H. Wilson [ James D. Bell and Francis K. Pendleton with him on the brief], for the appellant.
Robert Stewart [ Ralph G. Barclay with him on the brief], for the respondent.
The action is for slander. The plaintiff has recovered a judgment for $1,250 for imputation of unchastity involved in the statement that her family were disorderly — were keeping a disorderly house in an apartment of a tenement. The version of the plaintiff is that the slander was spoken to her landlord by the defendant, then a captain of police over the precinct wherein these premises were situate. The proof consists of testimony by the plaintiff, corroborated in part by another witness, of admissions to her by the defendant that he had said the slanderous words, coupled with a reiteration thereof. The learned court instructed the jury that there were admissions in the answer which might make against the defendant. The defendant denied that he had ever made any statement to the effect that this family was disorderly or kept a disorderly house. His testimony is that he had received complaint against the disorderly conduct of certain inmates of this tenement; that he went to the landlord and informed her of the complaint, and asked her permission for access to and passage through the house so that he might investigate into the complaints.
The plaintiff's version presents the case of a statement made to a landlord by a superior police officer that the landlord's house occupied by the plaintiff, situate within the officer's precinct, is a disorderly house. I think that the occasion of this communication is prima facie privileged. The general rule is stated in Byam v. Collins ( 111 N.Y. 143) as follows: "A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contained criminating matter which, without this privilege, would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation." (See, too, Coloney v. Farrow, 5 App. Div. 607; Harwood v. Keech, 4 Hun, 389; Bradley v. Heath, 12 Pick. 163.) I think that such an officer has both an interest and a duty to see to it that no house within his precinct should be kept or maintained as a disorderly house, and that there is a corresponding duty cast upon the landlord. It is not necessary to rest this conclusion upon general consideration of the public morals alone, inasmuch as section 322 of the Penal Code prescribes that the keeping of a disorderly house is a misdemeanor, and to let knowingly a house for such purposes, or to suffer it to be thus used, is likewise a misdemeanor. The view of the learned court was that the duty of the defendant was confined to procure the arrest of the offenders and to bring them into a court of justice, and that, therefore, he had no duty to perform in the direction of giving information to the landlord. But the duty to arrest for a crime is not necessarily exclusive of a duty to inform of a crime. And one whose primary or principal duty is to apprehend should not be precluded for that reason from the plea of prima facie privilege as to his statements. If this tenement, or any part thereof, was used for immoral purposes, the lease to the disorderly persons was terminable at the pleasure of the lessor, who could thereupon institute summary proceedings against them. (Laws of 1901, chap. 334, chap. 5, tit. 3.) I think that the occasion is prima facie privileged when a captain of police informs a landlord that his tenement is a disorderly house; nay, I think that the defendant in his status as a citizen might make such plea. In Liddle v. Hodges (2 Bosw. 537) it was held, per WOODRUFF, J., for the court, that a landlord had such an interest in knowing the character and reputation of his tenant that communications to him upon the character of his tenants were privileged. It is true that in that case there was inquiry by the landlord, but the rule as laid down is expressed by the learned judge as follows: "When a duty to the public or to the party seeking information requires that one should freely impart what information he has or express the opinion his observation or experience has enabled him to form, he is to be protected, unless it is shown that he acted in bad faith and under the influence of malice." The learned court seemed to draw a distinction between information sought and information volunteered. But the fact that the information is volunteered does not necessarily prevent the application of the principle of qualified privilege. ( Lewis v. Chapman, 16 N.Y. 369; Stuart v. Bell, L.R. [1891] 2 Q.B. Div. 341.) Whether the occasion was privileged was a question for the court. ( Sickles v. Kling, 60 App. Div. 515, and authorities then cited; Byam v. Collins, supra.) The learned court under exception ruled that the occasion was not one of privilege, and I think that this was error prejudicial to the defendant. For when the occasion is one of prima facie privilege the presumption of malice does not arise from the mere utterance of the slanderous words. It is incumbent upon the plaintiff to show that the defendant was under motives other than those of duty. And mere evidence that the words were false does not raise the presumption of malice. ( Ormsby v. Douglass, 37 N.Y. 477; Hemmens v. Nelson, 138 id. 517.) When the learned court decided that there was no question of privilege in the case it proceeded to the logical consequence of an instruction to the jury that if the defendant told the landlord that the plaintiff and her family were improper women and if that were untrue, then the plaintiff was entitled to a verdict. Of course, the question of such privilege bears upon the occasion of the speech and not to the surrounding circumstances or to the nature of the communication. This is, the mere privilege of the occasion does not protect one who may have made the communication on the occasion knowingly or carelessly in the hearing of those who are not concerned or who may use stronger language than was necessary or was justified. (Odger's Lib. Sland. [4th ed.] 342, citing Roberts v. Richards, 3 F. F. 507; Padmore v. Lawrence, 11 Ad. El. 380; Newell Sland. Lib. [2d ed.] 477, 532.) In the words of WOODRUFF, J., in Liddle v. Hodges ( supra, p. 543), "and the communication itself may be of such a character and bear on its face such evidence of the malice of the defendant that it may, and ought to be, submitted to the jury."
As I have said, the defendant testified that when he discussed the matter with the landlord he then had the house under investigation in consequence of complaints, and he was seeking her permission for access to the premises in order to continue his investigations. In People v. Glennon ( 175 N.Y. 45) the court, per CULLEN, J., say: "If having a well-grounded belief that the house was a house of prostitution, even though he had not witnessed sufficient to justify him in making his arrest, it was his duty if he could obtain admission to the house, peaceably and without violation of law, to enter it to see what its nature and character was. So, also, the conduct of the inmates so far as could be observed in the street, though insufficient to justify the arrest, might well have required the application to a magistrate for a warrant, and it was his duty to diligently seek for evidence to present to the magistrate on such application." If the communication as to the character of the premises of the plaintiff or even as to her character was incidental to the investigation of an alleged crime, then, as was said in Klinck v. Colby ( 46 N.Y. 434), "For the sake of public justice, charges and communications, which would otherwise be slanderous, are protected if made bona fide in the prosecution of an inquiry into a suspected crime. ( Padmore v. Lawrence, 11 Ad. Ellis, 380.)" The learned court was requested to give this instruction to the jury, but answered under exception that while this principle was true, it had no relation to this case. It seems to me that this bore upon the case, inasmuch as the version of the defendant was that all communications which he had with the landlord (out of which this charge of slander arose) were in the investigation of the character of the house and its inmates.
The judgment must be reversed and new trial granted, costs to abide the event.
WOODWARD, HOOKER, GAYNOR and MILLER, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.