
    No. 704
    PECSOK v. VECSEY
    No. 19252.
    Supreme Court.
    On motion to certify. Doc.
    July 10, 1925;
    3 Abs. 435.
    1094. SLANDER—1. Is malice presumed, or is burden of proving actual malice, upon plaintiff?
    2. Where officer of church makes statements to members thereof concerning applicant for pastorage, do said statements present a situation of qualified privilege?
   Rev. Eugene A. Vecsey brought and action against Paul Pecsok in the Cuyahoga Common Pleas, charging that while his name was pending as applicant for the position of minister in a church of which Pecsok was a member, said Pecsok slandered him with the intention of preventing him from becoming pastor of the church. The petition was divided into two causes of action, the first upon which $25,000 general damages, was asked and the second upon which $25,000, special damages was asked.

Pecsok denied all the material allegations in Vecsey’s petition and further averred that all the remarks made about Vecsey were privileged, and further pleaded in his amended answer that he occupied the position of trustee and an officer in the church and as such, advised his fellow church members to use caution in the selection of a pastor. Judgment was rendered, on a verdict of $8,500 in favor of Vecsey, in the Common Pleas, said judgment being affirmed by the Court of Appeals.

Pecsok filed his motion and brief in the Supreme Court for an' order to certify the motion and it is there contended:

That the court of appeals committed an error in holding that there was not presented a situation of qualified privilege, in the ease. It is claimed that “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 contains criminatory matter which, without this privilege, would be slanderous and actionable.”

Attorneys—Leighley, Halle, Haber & Berick for Pecsok; Mooney, McCormack, Both & Pollock for Vecsey; all of Cleveland.

That the court of appeals erred in holding that the plea of qualified privilege was insufficient. An answer containing new matter need only be in ordinary and concise language. Cook v. Finney 39 OS. 58.

That the court of appeals was in error in holding contrary to the decision in Mank v. Brundage, 68 OS. 89; by holding that evidence of the source of information upon which Pec-sok relied in making his statements was not admissible, even in mitigation of damages, under the general issue.

That there is prejudicial error in the judgment of the Court of Appeals in holding that the failure of the trial judge to charge at all on the question of qualified privilege was not error in holding that malice is presumed instead of holding that burden of proving actual malice was on Vecsey and in permitting the excessive verdict of $8,500 to stand.  