Boulet v. Beals

• Decision Date: 09 February 1962
• Citation: 158 Me. 53,177 A.2d 665
• Parties: Emile BOULET and Eleanor Boulet v. Carroll BEALS.
• Court: Maine Supreme Court

Page 665

177 A.2d 665

158 Me. 53

Emile BOULET and Eleanor Boulet v. Carroll BEALS.

Supreme Judicial Court of Maine.

Feb. 9, 1962.

Waterhouse, Spencer & Carroll, Biddeford, for plaintiffs.

J. Armand Gendron, Sanford, Harry S. Littlefield, Wells, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.

DUBORD, Justice.

This case is before us upon an appeal from a judgment rendered in an action for defamation by slander.

The complaint alleges in substance that the plaintiffs were proprietors of a motel business in the Town of Wells, in the County of York, and State of Maine, doing business under the name and style of Ocean Breeze Motor Court. The complaint contains the usual allegations of prior good reputation. The defendant was an employee of the Wells Chamber of Commerce and as such served in the information booth. It is alleged that on July 22, 1960, in the presence of several persons, the defendant in discussing the motel conducted by the plaintiffs with prospective customers said: 'Don't go over there unless you have to, because they are unethical and if you have to go there, get a receipt or they will make you pay twice.' Allegation is made of injury to the business reputation of the plaintiffs and loss of business is claimed.

The defendant, in his pleadings, denied that he used the word 'unethical' and averred that he had no intention of injuring or impairing the business reputation of the plaintiffs and that his statements were made on the basis of information on file with the Wells Chamber of Commerce; and that it was his duty as representative of the Chamber of Commerce to advise and give information truthfully and as impartially as possible.

Upon trial, the jury returned a verdict for the plaintiffs in the amount of $5,000.00.

Truth was not pleaded as a defense, nor suggested at a pre-trial conference. Similarly privilege was not pleader by the defendant, unless his allegation that any statements he made concerning the defendants were made in the line of his duty as an employee of the Wells Chamber of Commerce can be considered as pleading this affirmative defense. At a pre-trial conference, the question of privilege was not discussed.

Following the entry of judgment in the amount of $5,000.00, the defendant addressed a motion for a new trial to the presiding justice.

In his findings and order upon the motion presented to him, the presiding justice pointed out that the defense of privilege had not been advanced, but that, nevertheless, he considered this issue in his decision on the motion. He sustained the motion and granted a new trial unless the plaintiffs remitted all of the verdict in excess of $1,750.00. The plaintiff accepted this finding and remitted all damages in excess of $1,750.00. Judgment was then entered for the reduced amount.

The defendant then filed an appeal based upon the usual grounds that the verdict and judgment was against the law and the charge of the justice, and against the evidence and the weight thereof. The appeal is also based upon an allegation that the statement complained of by the plaintiffs was protected under the doctrine of qualified privilege; that it was true and that the damages as reduced by the presiding justice are still excessive.

In the action now before us, the plaintiffs charge that defendant slandered them by making false statements to the effect that they were unethical in the manner of conducting their business. The law seems to be clear that such a statement, unless true or privileged, is the basis for an action for damages.

'One who falsely and without a privilege to do so, publishes a slander which ascribes to another conduct, characteristics or a condition incompatible with the proper conduct of his lawful business, trade, profession, or of his public office whether honorary or for profit, is liable to the other.' Restatement of the Law of Torts, Defamation, § 573.

See also, 33 Am.Jur., Libel and Slander, § 68; Barnes v. Trundy, 31 Me. 321; Orr v Skofield, 56 Me. 483; Pattangall v. Mooers, 113 Me. 412, 94 A. 561, L.R.A.1918E, 14.

Now what of the defenses of privilege and truth? It is contended by the plaintiffs that these defenses are not open to the defendant at this time, because of failure on his part to plead specially these affirmative defenses.

We, therefore, ask ourselves this question. It is necessary to specially plead privilege and truth as affirmative defenses?

Insofar as truth is concerned it was decided many years ago by this court in Taylor v. Robinson, 29 Me. 323, that under the general issue, the defendant is not permitted to give truth in evidence, as a defense to the suit, or in mitigation of damages.

M.R.C.P. 8(c) relating to affirmative defenses reads in part as follows:

'In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence in actions for negligently causing death or for injury to a person who is deceased at the time of trial, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.' (emphasis supplied)

It is to be noted that privilege and truth in actions for defamation of character are not specifically listed, but in the commentary covering M.R.C.P. 8, in Field and McKusick, § 8.20 we find the following:

'Other defenses that should be affirmatively set forth are those that do not 'tend to controvert the opposing party's prima facie case as determined by * * * substantive law. * * *' For example, truth as a defense to an action for slander has been held in Maine to be an affirmative defense as has justification of any sort. These matters will also be affirmative defenses under the catch-all provision of Rule 8(c).

See also, Barron and Holtzoff, Federal Practice and Procedure § 279, which lists truth and privilege as affirmative defenses which should be pleaded.

See also 51 A.L.R.2d, Defamation, page 567, where it is stated: 'Under the practice of many jurisdictions, privilege and fair comment are regarded as affirmative defenses which must ordinarily be specially pleaded in order to be available.'

We conclude, therefore, particularly for future guidance of attorneys, that truth and privilege, to be available as matters of defense, must be pleaded affirmatively. Counsel for the defendant in an endeavor to support his contention that these defenses need not be pleaded affirmatively calls attention to Rule 8(e)(1) to the effect that no technical forms of pleadings or motions are required. However, we are constrained to state that this particular sentence is not to be construed as voiding all necessity on the part of pleaders to comply with simple requirements of pleading as set forth in our New Rules of Civil Procedure, which have now been in effect for more than two years.

We are cognizant of the impact of M.R.C.P. 15(b) covering situations where issues not raised by the pleadings are...