Bander v. Metro. Life Ins. Co.
| Decision Date | 01 March 1943 |
| Parties | BANDER v. METROPOLITAN LIFE INS. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
BANDER
v.
METROPOLITAN LIFE INS. CO.
Supreme Judicial Court of Massachusetts, Suffolk.
March 1, 1943.
Exceptions from Superior Court, Suffolk County; Walsh, Judge.
Action for libel and slander by Samuel Bander against the Metropolitan Life Insurance Company. Verdicts were entered for defendant by the judge on leave reserved. On exceptions.
Plaintiff's exceptions sustained and defendant's exceptions sustained, and case ordered tried anew on certain counts.
[47 N.E.2d 597]
Before FIELD, C. J., and DONAHUE, LUMMUS, and QUA, JJ.
F. F. Cohen and T. H. Mahony, both of Boston, for plaintiff.
D. J. Lyne and W. A. Ryan, both of Boston, for defendant.
QUA, Justice.
The plaintiff was employed as an insurance agent at the Somerville office of the defendant and was a policyholder in the defendant. On February 9, 1939, in response to a subpoena, he appeared and testified under oath before a committee of the Congress of the United States at Washington, D. C. In reply to questions there put to him he made, in substance, these statements: In elections of directors held by the defendant it has been a general practice in the Somerville office office for agents to sign ballots for policyholders without their consent. The witness ‘would say’ he had engaged in that practice, and that a majority of the agents had done so openly in the office. He did not know whether the manager and assistant managers had seen it, but if they had been inquisitive and had watched, he thought they could have seen it. He could not say whether or not any manager or assistant manager knew of the practice. From twenty to thirty per cent of the ballots would be forged. ‘Personally’ the plaintiff did not think he ‘forged’ any ballots. He and other agents
[47 N.E.2d 598]
at his request would sign their own names to several ballots and put fictitious policy numbers upon them. The manager expected each agent to return a number of signed ballots.
At the trial of this case in the Superior Court the plaintiff testified that this evidence which he had given in Washington was true. There was evidence that it was the practice to hold ‘office meetings' in the Somerville office to discuss matters relating to the business. The plaintiff further testified in substance as follows: On February 14, after the plaintiff had returned from Washington, the manager of the office, one Collagan, called a meeting of the entire staff of the agency, comprising about forty people. In the course of an address to them he said, ‘We have amongst us one agent that has testified in Washington * * *. This man is disloyal to the Company for going to Washington to testify, and especially signing forged ballots of the Company's election.’ Collagan stated ‘how disloyal a man could be to go to Washington to testify against the Company.’ He said, ‘It is a disgrace to have a man like this in our midst,’ and, ‘We have one man in here that is a forger who went to Washington and admitted forging names of policyholders.’ He asked the agents to send telegrams to a senator, who was a member of the committee, denying the testimony given by the plaintiff. At another similar meeting on or about February 16 Collagan read newspaper clippings relative to the investigation in Washington and said, ‘It is a disgrace to have a man that would forge ballots in our midst. Nothing but a disloyal man could do anything like that.’ ‘We have a man in here that forged ballots.’ At a third meeting, on February 20, Collagan ‘addressed Mr. Bander directly,’ saying that he was going to read the plaintiff's testimony given in Washington. After reading it he said, ‘It is really a disgrace to have a man like Mr. Bander in our midst deliberately going to Washington and giving testimony of this nature.’ He added, ‘a man that could admit forging in Washington, implicating a staff of men in the Somerville office.’
There was evidence that, on or about March 3, Collagan, in the presence of the assistant manager, one Tarpey, took from an unsealed envelope and read aloud to the plaintiff a letter from the defendant's superintendent of agencies, addressed to the plaintiff, discharging the plaintiff and stating that the plaintiff had ‘signed the names of policyholders to official ballots' for the election of directors. The letter was handed to the plaintiff. On the next day Collagan and Tarpey came to the plaintiff's house, and Collagan took from an unsealed envelope and read aloud to the plaintiff a second letter from the superintendent of agencies to the plaintiff, referring to the first letter and confirming the plaintiff's discharge on the additional ground that he had ‘knowlingly submitted as authentic repetitious official ballots signed by reputed policyholders with fictitious policy numbers placed thereon.’ Members of the plaintiff's family were in the house at the time, but there was no evidence that they heard the actual reading of the letter. This letter was left at the plaintiff's house. Other evidence will be referred to in connection with matters hereinafter discussed.
The plaintiff's declaration contains seven counts, two for libel (counts 1 and 2), based respectively upon the two letters addressed to the plaintiff from the superintendent of agencies, and five for slander (counts 3, 4, 5, 6 and 7), based upon the various alleged statements of Collagan at the meetings to the effect that the plaintiff was a forger, and that he was a ‘disgrace’ to the agency.
It will be convenient to follow the chronological order of the evidence by taking up the counts for slander first.
1. The counts for slander based upon the alleged statements that the plaintiff was a forger (counts 3 and 4) presented questions for the jury. There was evidence hereinbefore set forth that Collagan made the statements declared upon at meetings held by him in his capacity as manager of the defendant's Somerville office, within the scope of his authority as the defendant's agent, and that the statements were made of and concerning the plaintiff. Charges of crime are slanderous and actionable per se without proof of special damage. Friedman v. Connors, 292 Mass. 371, 373, 374, 198 N.E. 513.
(a) It could not be ruled that the defence of the truth of these statements had been made out as matter of law. Truth is a complete defence to an action for slander. Golderman v. Stearns, 7 Gray 181, 183;Comerford v. Meier, 302 Mass. 398, 402, 19 N.E.2d 711. The provision of G.L.(Ter.Ed.) c. 231, § 92, by force of which actual malice deprives a defendant of the benefit of this defence in an action
[47 N.E.2d 599]
for libel does not apply to an action for slander. The burden of proving truth as a defence rests upon the defendant. Maloof v. Post Publishing Co., 306 Mass. 279, 280, 28 N.E.2d 458. The plaintiff's own testimony given in Washington, which he testified at the trial was true, was equivocal, if not contradictory, as to whether or not he had been guilty of forgery. If the plaintiff had signed the names of other policyholders to ballots, as a part of his testimony seems to indicate, he was a forger at common law. Commonwealth v. Ayer, 3 Cush. 150, 152;Commonwealth v. Foster, 114 Mass. 311, 19 Am.Rep. 353. If on the other hand, being himself a policyholder, he signed his own name to a number of ballots, not enough appears to make out forgery. As a general rule, ‘to constitute forgery, the writing falsely made must purport to be the writing of another party than the person making it.’ Commonwealth v. Baldwin, 11 Gray 197, 198,71 Am.Dec. 703;Fitzgibbons Boiler Co., Inc., v. Employers' Liability Assurance Corp., Ltd., 2 Cir., 105 F.2d 893. This is not a case where the plaintiff finally adhered to one of two conflicting statements and repudiated the other. See Sullivan v. Boston Elevated R. Co., 224 Mass. 405, 112 N.E. 1025. It was for the jury to say whether or not the accusation of forgery, if made, was true. The defendant must prove the substantial truth of the charge as made. It cannot justify by proof...
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