Bander v. Metropolitan Life Ins. Co.

• Decision Date: 01 March 1943
• Citation: 313 Mass. 337,47 N.E.2d 595
• Parties: SAMUEL BANDER v. METROPOLITAN LIFE INSURANCE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 337

47 N.E.2d 595

SAMUEL BANDER v. METROPOLITAN LIFE INSURANCE COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1943

November 12, 1942.

Present: FIELD, C.

J., DONAHUE LUMMUS, & QUA, JJ.

Libel and Slander. Evidence, Conflicting statements of witness, Presumptions and burden of proof, Admissions. Malice. Practice, Civil, Entry of verdict under leave reserved. Damages, for tort, Special damage. Words, "Disgrace."

In an action for slander in charging that the plaintiff was a forger, truth as a defence was not established as a matter of law by admission by the plaintiff that he had testified under oath before a legislative committee that it had been a general practice of agents in a local office of a mutual insurance company, where he was employed, in company elections to sign ballots for policyholders without their consent; that he "would say" that he had engaged in that practice; that part of the ballots would be forged; that "personally" he did not think that he

"forged" any ballots; and that he, himself a policyholder, would sign his own name to ballots and put fictitious policy numbers on them.

In an action for slander, the burden on the defendant of proving the defence of truth of statements by the defendant that the plaintiff had been guilty of a certain crime was not sustained by proof that he had been guilty of something perhaps equally bad but substantially different.

In an action against an insurance company for slander in a branch manager's stating at staff meetings of employees that the plaintiff was a forger, a finding, that the plaintiff had maintained the burden of proving actual malice which destroyed a defence of conditional privilege to discuss at such meetings to a reasonable extent and in a proper manner certain testimony of the plaintiff at a legislative hearing was warranted by evidence of repetition by the manager at three successive meetings of the staff of the unequivocal charge of forgery and of a charge that the plaintiff had testified at the legislative hearing that he had committed forgery, and that the manager had admitted to the plaintiff that he did not think that the plaintiff had testified to forgery at the legislative hearing.

False statements that a plaintiff had committed the crime of forgery in the service of an insurance company were not privileged as reports of or fair comments upon, a legislative hearing at which the plaintiff had given equivocal testimony which might be taken as an admission of having committed forgery.

Although an exception by the plaintiff to the entry of a verdict for the defendant under leave reserved following a verdict for the plaintiff was sustained in view of evidence warranting the jury's verdict, the jury's verdict was not restored but a new trial was ordered because of errors at the original trial which might have affected that verdict.

The evidence at the trial of an action for slander against an insurance company showed that a charge by the manager of a branch office of the defendant, that the plaintiff was a "disgrace" to that office, was a component part of statements meaning as a whole that the plaintiff was a forger or "disloyal" and therefore a "disgrace," and such characterization of "disgrace" could not be relied on by itself in a separate count in addition to a count based on the charge of forgery.

A false oral statement that an agent in a branch office of an insurance company was a "disgrace" to the office was not slanderous per se as affecting him in his trade or profession.

A finding, that the plaintiff in an action of slander sustained special damage because he was falsely accused orally of being a "disgrace" as an agent in a branch office of the defendant, was not warranted by evidence that by reason of such charge he became "depressed" and "confined to his bed off and on"; or, in the absence of evidence of efforts made by the plaintiff to obtain employment, by evidence that he was unable to get work because "he had been discharged by the" company "with the record given him" in statements by the office manager containing such charge.

A finding of publication of a libel by an insurance company through its agents acting within the scope of their employment was warranted by evidence that the defendant's superintendent of agencies wrote a letter addressed to the plaintiff discharging him from his employment with the company and containing defamatory matter concerning him, that "when the company made any decision concerning business, the home office had to communicate with the district office," and that the manager of a branch office where the plaintiff was employed, in the presence of his assistant, took the letter from an unsealed envelope and read it aloud to the plaintiff.

A communication of libellous matter between officers or agents of a corporation with reference to its business may be found to be a publication of the libel by the corporation.

Publication to the manager of a branch office of an insurance company and by him to his assistant of a letter, written by the company's superintendent of agencies, addressed to an agent at the branch office discharging him and containing defamatory statements concerning him, was conditionally privileged, and an action of libel could not be maintained by the agent against the company upon proof of the falsity of the statements unless the agent also sustained the burden of proving actual malice on the part of one of such officers in the publication of the libel.

TORT. Writ in the Superior Court dated September 22, 1939. The declaration was in seven counts described in the opinion, the first and second for libel and the others for slander.

The case was tried before Walsh, J., who ordered verdicts for the defendant on the first two counts and, under leave reserved, ordered entered verdicts for the defendant on the remaining counts. Both parties alleged exceptions.

F. F. Cohen, (T.

H. Mahony with him,) for the plaintiff.

D. J. Lyne, (W.

A. Ryan with him,) for the defendant.

QUA, J. 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 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 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...