288 A.2d 106 (Me. 1972), Cohen v. Bowdoin

Citation288 A.2d 106
Opinion JudgeWERNICK,
Party NameHerman COHEN v. Warren E. BOWDOIN et al.
AttorneyWilliam P. Donahue, Biddeford, for plaintiff. Smith, Elliott & Wood, by Charles W. Smith, Saco, for defendants.
Judge PanelBefore DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.
Case DateMarch 02, 1972
CourtSupreme Judicial Court of Maine

Page 106

288 A.2d 106 (Me. 1972)

Herman COHEN

v.

Warren E. BOWDOIN et al.

Supreme Judicial Court of Maine.

March 2, 1972

Page 107

[Copyrighted Material Omitted]

Page 108

William P. Donahue, Biddeford, for plaintiff.

Smith, Elliott & Wood, by Charles W. Smith, Saco, for defendants.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

WERNICK, Justice.

Plaintiff appeals to this Court a decision by a Justice of the Superior Court which dismissed the complaint of plaintiff with prejudice on the ground that it fails to state a claim upon which relief can be granted.

We sustain the appeal.

The complaint contains confusing surplusage and lacks precision and clarity in the allegations which deal with matters which can be deemed essential. We present those portions of the complaint which most clearly state its fundamental import.

'1. The plaintiff, Herman Cohen, now and during his lifetime, has been an honest, upright person and has always honorably and honestly conducted himself and has been of good fame and reputation personally and in his business.

'2. The defendant, Donald V. Dulac, on March 3, 1968, and since that tiem, has been and is Town Manager of, and Richard J. Brown, Richard V. Bibber, Warren E. Bowdoin, and Hugh Googins have been and are Selectmen of, said Town of Kennebunk.

'3. That the defendants have conspired, since March 3, 1968, to maliciously defame and libel the plaintiff.

'4. That at a meeting of the Board of Selectmen and said Town Mangager, held on September 19, 1968, the plaintiff was denied his legal right to make a tape recording of the minutes of said meeting, although the tape recorder of the defendant Bowdoin is used for that purpose.

'5. That at a meeting of the Planning Board of said Kennebunk, held on September 22, 1968, the plaintiff was permitted to have a tape recording of said meeting, except when the defendant, Dulac, spoke at said meeting. At this meeting, . . . the plaintiff did not tell Dulac (nor did he at any other time) that he had been advised by the Attorney General of the State of Maine that he could legally tape board meetings, nor was such statement made by the plaintiff at said Planning Board meeting.

'6. That at a meeting of the Board of Selectmen held September 26, 1968, attended by the plaintiff and defendants, the remarks of Town Counsel, were adopted and incorporated in the record, and the false and malicious accusation that the plaintiff had lied to the defendant, Dulac, by said Dulac, also were adopted and incorporated in the record, together with the remarks of Mike Tranci, as appears in Exhibit 'A:', attached hereto and incorporated herein by reference. 1

Page 109

'7. That at a meeting of the Board of Selectmen, held on October 1, 1968, it was 'Voted to commend Mrs. Cashen and the Biddeford Journal for their accurate news coverage of the meeting of the Board of Selectmen of the Town of Kennebunk on September 26, 1968', which news item appeared in the September 27, 1968, issue of the said newspaper, a copy of said article, marked Exhibit B, is attached hereto and incorporated herein by reference. 2 The newspaper article fails to report the recorded remarks of Mike Tranci explanatory of the telephone calls referred to in the remarks of the Town Counsel, together with other omitted significant facts.

'8. That the news reporter, Mrs. Cashen, did not attend said meeting of September 25, 1968 and the news item was written at her home from the tape recording and minutes supplied by the defendant, Brown, in furtherence of the censpiracy to defame and libel the plaintiff.

'9. That said defendants, Brown, Bibber, and Bowdoin, were unsuccessful in their attempts to have the news item published in the Biddeford Journal, republished in the York County Coast Star, wherein their actions were reported by the October 2, 1968, issue of the Star, a copy of which is marked Exhibit 'C', attached hereto and incorporated herein by reference. 3

'12. That the plaintiff, by reason of said conspiracy to defame and libel said plaintiff, had been brought into public shame and disgrace, by reason of all which facts set forth the plaintiff has been greatly injured in his personal and business reputation, and he has suffered great pain of body and of mind, and has otherwise injured and damaged and is entitled to compensatory and exemplary damages. . . .'

We conclude that the allegations of the complaint are sufficient to charge against each defendant legal responsibility for the tort of defamation constituted by libel.

By this conclusion sustaining the complaint as stating a cause of action for libel we simultaneously reject a basic contention of plaintiff-formulated by the presiding Justice (in his pre-trial order) to be that plaintiff

'. . . asserts he does not have to prove that what was stated and published was in fact libel if . . . they conspired and agreed together to libel, whether they succeeded or not,'-

and preserved as an issue on appeal by plaintiff's designation that the Justice in the Superior Court erred in concluding

'that the complaint failed to state an actionable conspiracy by the defendants.'

While the law of this State recognizes 'conspiracy' constituted as to gravamen by combination, or concert of action and planning, for an unlawful purpose or for use of unlawful means (and regardless of whether the unlawful purpose or means is accomplished) as a crime, State v.

Page 110

Chick, Me., 263 A.2d 71 (1970) and cases therein cited, this Court has explicitly decided as general law that 'conspiracy' fails as the basis for the imposition of civil liability absent the actual commission of some independently recognized tort; and when such separate tort has been committed, it is that tort, and not the fact of combination, which is the foundation of the civil liability. Garing v. Fraser, 76 Me. 37 (1884), Franklin v. Erickson, 128 Me. 181, 146 A. 437 (1929). 4

Thus, if the complaint at issue is to be upheld as stating a claim upon which relief can be granted, it must be on the ground that the complaint sufficiently alleges the actual commission of the separate and independent tort of defamation against the plaintiff.

Furthermore, if the complaint is to be held to state a cause of action for defamation, it must be defamation as libel rather than slander.

The matter which is here alleged to be defamatory is asserted to be defamatory on its face, requiring no resort to extrinsic circumstances to show its tendency to injure reputation-an accusation that plaintiff had 'lied', on one occasion, at a meeting of the Planning Board of Kennebunk. This allegedly facial defamation, however, if it takes the form of slander only, cannot be regarded as the type of slander which is actionable without the pleading of special damages-(i. e., slander which conveys imputation of a crime, or a loathsome disease, or of matters affecting plaintiff in his business, trade, profession, office or calling, or of unchastity as to a woman). Hence, since the complaint fails to allege a claim for, or the circumstances of, special damages to the plaintiff, 5 it must be held inadequate if only the elements of slander appear and the essential elements of libel are lacking. Buck v. Hersey, 31 Me. 558 (1850), Niehoff v. Sahagian, 149 Me. 396, 103 A.2d 211 (1954).

We decide that the complaint states a claim upon which relief can be granted because it sufficiently alleges the ingredients of the tort of libel as having been committed by each defendant against the plaintiff.

Page 111

There are adequate allegations that the oral statements made at the meeting of the Board of Selectmen of the Town of Kennebunk, by which plaintiff was accused of having 'lied' to the Town Manager at a prior recent meeting of the Kennebunk Planning Board, had been incorporated as part of the written minutes of the meeting of the Board of Selectmen. Once placed in written form, the accusation, alleged to be false, becomes libel rather than slander if it is defamatory and is published.

Even though the accusation...

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53 practice notes
  • 222 P.3d 465 (Hawai
    • United States
    • Hawaii Court of Appeals of Hawai'i Intermediate
    • January 27, 2010
    ...in and of itself. There must first be pleaded specific wrongful acts which might constitute an independent tort" ); Cohen v. Bowdoin, 288 A.2d 106, 110 (Me.1972) (" ‘ [C]onspiracy’ fails as the basis for the imposition of civil liability absent the actual commission of some indepe......
  • 499 A.2d 464 (Me. 1985), Baker v. Mid Maine Medical Center
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • October 16, 1985
    ...the standard of care required in a given case has been met is ordinarily a question of fact for the jury. Boetsch v. Rockland Jaycees, 288 A.2d at 106. Specifically, as noted in Isaacson, "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activ......
  • 596 A.2d 65 (Me. 1991), Lester v. Powers
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • August 2, 1991
    ...in the past, also used the term "malice" under these circumstances in its usual sense of ill-will. See, e.g., Cohen v. Bowdoin, 288 A.2d 106, 112 (Me.1972). Cf. Onat v. Penobscot Bay Medical Center, 574 A.2d 872, 874 (Me.1990) (using "actual" or "express" malic......
  • 324 F.Supp.2d 176 (D.Me. 2004), Civ.01-277, Siegemund v. Shapland
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Court (Maine)
    • June 14, 2004
    ...been committed, it is that tort, and not the fact of combination, which is the foundation of the civil liability." Cohen v. Bowdoin, 288 A. 2d 106, 110 (Me.1972) (emphasis in original). Conspiracy itself is not a cause of action under Maine law. Accordingly, Shapland is entitled to sum......
  • Request a trial to view additional results
53 cases
  • 222 P.3d 465 (Hawai
    • United States
    • Hawaii Court of Appeals of Hawai'i Intermediate
    • January 27, 2010
    ...in and of itself. There must first be pleaded specific wrongful acts which might constitute an independent tort" ); Cohen v. Bowdoin, 288 A.2d 106, 110 (Me.1972) (" ‘ [C]onspiracy’ fails as the basis for the imposition of civil liability absent the actual commission of some indepe......
  • 499 A.2d 464 (Me. 1985), Baker v. Mid Maine Medical Center
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • October 16, 1985
    ...the standard of care required in a given case has been met is ordinarily a question of fact for the jury. Boetsch v. Rockland Jaycees, 288 A.2d at 106. Specifically, as noted in Isaacson, "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activ......
  • 596 A.2d 65 (Me. 1991), Lester v. Powers
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • August 2, 1991
    ...in the past, also used the term "malice" under these circumstances in its usual sense of ill-will. See, e.g., Cohen v. Bowdoin, 288 A.2d 106, 112 (Me.1972). Cf. Onat v. Penobscot Bay Medical Center, 574 A.2d 872, 874 (Me.1990) (using "actual" or "express" malic......
  • 324 F.Supp.2d 176 (D.Me. 2004), Civ.01-277, Siegemund v. Shapland
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Court (Maine)
    • June 14, 2004
    ...been committed, it is that tort, and not the fact of combination, which is the foundation of the civil liability." Cohen v. Bowdoin, 288 A. 2d 106, 110 (Me.1972) (emphasis in original). Conspiracy itself is not a cause of action under Maine law. Accordingly, Shapland is entitled to sum......
  • Request a trial to view additional results