Bennett v. Norban

• Decision Date: 28 May 1959
• Citation: 396 Pa. 94,151 A.2d 476,71 A.L.R.2d 803
• Parties: , 71 A.L.R.2d 803 Shirley BENNETT, Appellant, v. Joseph NORBAN, Individually and Trading as Lynn's, a/k/a Lynn's Self-Service Store.
• Court: Pennsylvania Supreme Court

Page 476

151 A.2d 476

396 Pa. 94, 71 A.L.R.2d 803

Shirley BENNETT, Appellant, v. Joseph NORBAN, Individually and Trading as Lynn's, a/k/a

Lynn's Self-Service Store.

Supreme Court of Pennsylvania.

May 28, 1959.

Gerald A. McNelis, McNelis & McNelis, Erie, for appellant.

Thomas E. Doyle, Richard C. Barron, Erie, for appellee.

Before CHARLES ALVIN JONES, C. J., and MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and McBRIDE, JJ.

BOK, Justice.

Plaintiff complains in four counts: assault and battery, slander, invasion of privacy, and false imprisonment. Preliminary objections were sustained to slander and invasion of privacy, and plaintiff has appealed.

On Saturday afternoon, December 28, 1957, appellant entered defendant's store in Erie. It was a self-service store and at the time was busy. Appellant selected a purse but couldn't find a cashier to wrap it for her. She moved on to look at some skirts an aisle or two away, carrying the purse, but being in a hurry to return to the hospital where her child was recovering from an operation, she soon replaced the purse and left the store without buying anything.

Twenty feet from the entrance she was overtaken by the Assistant Manager of the shop, who was red-faced and angry and in his shirt sleeves. He put his hand on her shoulder, put himself in position to block her path, and ordered her to take off her coat, which, being frightened, she did. He then said: 'What about your pockets?' and reached into two pockets on the sides of her dress. Not finding anything, he took her purse from her hand, pulled her things out of it, peered into it, replaced the things, gave it back to her, mumbled something, and ran back into the store. Passers-by stopped to watch, to appellant's great distress and humiliation.

Appellee contends that slander must consist of words only, and brings to bear the case of Yundt v. Yundt, 1825, 12 Serg. & R. 427, in which this Court said:

'But a charge may be made entirely by gestures: and no one will pretend, that such a charge could be made the subject of an action of slander.'

This was dictum and by way of illustration, for the point of decision was that plaintiff averred only that defendant charged him with forgery, without laying the particular words in the count.

In any event, we prefer the Restatement of Torts, Vol. 3, Sec. 568, which reads as follows:

'(1) Libel consists of the publication of defamatory matter by written or printed words, by its embodiment in physical form, or by any other form of communication which has the potentially harmful qualities characteristic of written or printed words.

'(2) Slander consists of the publication of defamatory matter by spoken words, transitory gestures, or by any form of communication other than those stated in Subsection (1).

'(3) The area of dissemination, the deliberate and premeditated character of its publication, and the persistence of the defamatory conduct are factors to be considered in determining whether a publication is a libel rather than a slander.'

Comment (d) to Section 568, reads:

'* * * the use of a mere transitory gesture commonly understood as a substitute for spoken words, such as a nod of the head, a wave of the hand, or a sign of the fingers, is a slander rather than a libel.'

If one stood before a crowd and uttered a slanderous word, it would have no specific personal meaning. But if he then pointed to a single person, there is little doubt that the combination of word and gesture should be interpreted as slanderous of the person selected. And the language of deaf mutes, which consists wholly of gestures, should surely be capable of transmitting slanderous intent.

This junction of word and gesture finds support in Herst v. Borbidge, 1868, 57 Pa. 62. There the averment was that defendant charged plaintiff with the larceny of some hats and then said the words alleged to be slanderous, namely; 'You are a rogue.' The innuendo was that plaintiff was guilty of larceny. Judge Agnew said:

'Without a subject predicated in the colloquium to which the meaning can attach, the innuendo alone cannot enlarge the ordinary signification of the words, but with one it can point out that which the slanderer meant should be understood, and if capable of a double signification, or where more than one subject was referred to, it can specify that one which the intends.'

In short, if meaning may thus be specified and assigned, then a gesture may be considered as a walking innuendo.

We are satisfied to hold that the meaning of the entire incident suffered by plaintiff, taken in the round, was slanderous. The direction to remove her coat, the question about her pockets, the action of feeling in them and then searching her purse: these events formed a dramatic pantomime suggesting to the assembled crowd that appellant was a thief.

As for the third count, invasion of privacy, the history of this...