Bradburg v. Segal

• Decision Date: 24 February 1922
• Parties: BRADBURG v. SEGAL et al.
• Court: Maine Supreme Court

116 A. 65

BRADBURG

v. SEGAL et al.

Supreme Judicial Court of Maine.

Feb. 24, 1922.

Exceptions from Supreme Judicial Court, Knox County, at Law.

Action on the case for slander by Abraham Bradburg against Benjamin L. Segal and another. The general demurrer to the declaration was overruled, and defendants excepted. Exceptions sustained.

Argued before CORNISH, C. J., and HANSON, DUNN, MORRILL, and DEAST, JJ.

M. A. Johnson, of Rockland, for plaintiff.

A. S. Littlefield, of Portland, for defendants.

HANSON, J. This is an action on the case for slander. The defendant filed a general demurrer to the declaration. The presiding justice overruled the demurrer, and the case is before the law court on exceptions to this ruling.

The alleged slanderous words are:

"He has been in the cemetery and moved the headstone of my wife sideways from its place."

The offense with which the plaintiff says he was charged by the defendant is set out in R. S. ch. 126, § 43, as follows:

"Whoever willfully destroys or injures any tomb, gravestone, monument or other object placed or designed as a memorial of the dead, or any fence, railing or other thing placed about or inclosing a burial place; or willfully injures, removes, or destroys, any tree, shrub or plant, within such inclosure, shall be punished by imprisonment for less than one year, or by fine not exceeding five hundred dollars."

The declaration alleges:

"For that the said plaintiff is a good, true, and honest citizen of the state of Maine, and from the time of his nativity hath hitherto behaved and governed himself as such, and during all that time hath been held, esteemed, and reputed of a good name, character, and reputation, as well among a great number of fellow citizens as among all his neighbors and acquaintance, and during all that time hath been free from the atrocious crime of willfully destroying or injuring any tomb, gravestone, monument, or other object placed or designed as a memorial of the dead, or any fence, or other thing placed about or inclosing a burial place, or willfully injuring, removing, or destroying any tree, shrub, or plant within such inclosure. Nevertheless the said defendant, in no wise ignorant of the premises, but contriving and maliciously intending, not only to injure the said plaintiff and deprive him of his good name, character, and reputation, but also to cause the said plaintiff to be brought under the pain and penalties of the law provided against injury to monuments, gravestones, and places of burial, at said Rockland on October 3, 1920, and on divers other days before and after said date, speaking of the said plaintiff and in the presence and hearing of said plaintiff, and in the presence and hearing of many of his fellow citizens, falsely and maliciously, openly and publicly, and with a loud voice, pronounced and published the following false, feigned, and scandalous English words about and of the said plaintiff, to wit: 'He [meaning the said plaintiff] has been in the cemetery [meaning the Jewish cemetery at South Thomaston, Knox county, Me.], and moved the headstone of my wife [meaning the gravestone marking her grave] sidewise from its place [meaning that the said plaintiff had willfully injured the gravestone placed at the grave of defendant's deceased wife by removing said stone from its original fixed foundation and placing it sidewise or crosswise of said foundation without any authority, legal or otherwise], and I can prove that he done it'—by means of the speaking and publishing of which said several false, scandalous, and defamatory words and of the said false and malicious charge, he, the said plaintiff, is not only injured and prejudiced in his good name and reputation, but has been liable to be prosecuted for the crime of willfully injuring monuments, gravestones, and places of burial," etc.

Whether or not the language set out will bear the interpretation given to it by the plaintiff, whether or not it is capable of conveying the meaning which he ascribes to it, is in such a case a question of law for the court. What meaning the words did convey to one hearing him is in such a ease a question of fact for the jury. We have to do with the former only, and it is the opinion of the court that the exceptions must be sustained. The language used will not bear the interpretation given to it by the plaintiff. It is apparent that the words could reasonably apply to various conditions where the act complained of might relate to an occurrence entirely harmless, and without willful, corrupt, or unlawful intent. Certainly the words describe a harmless act and intention with as much certainty as they would an illegal act and intent. It is not alleged that any injury was done to the gravestone. A change of location, a moving "sidewise from its place," is not such an injury to the gravestone as the statute contemplates; in fact, it is not claimed to be an injury in argument further than it is urged that a moving from its place in any manner constitutes the "willful injury" provided for in the statute.

We cannot adopt the construction contended for. We think the statute was intended to provide for cases of willful destruction or injury...