Burns v. Barry

• Decision Date: 07 July 1967
• Citation: 228 N.E.2d 728,353 Mass. 115
• Parties: William E. BURNS v. Edward H. BARRY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 728

228 N.E.2d 728

353 Mass. 115

William E. BURNS v. Edward H. BARRY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 8, 1967.

Decided July 7, 1967.

J. Fleet Cowden, Sudbury, for plaintiff.

Samuel W. Gaffer, Asst. Atty. Gen., for defendants.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL, and REARDON, JJ.

REARDON, Justice.

This is an action of tort for defamation in three counts brought against various defendants individually and as members of the Board of Registration of Professional Engineers and Land Surveyors (Board) and against an employee of the Board. Two of the defendant members of the Board are deceased, and the plaintiff subsequently waived his exceptions relative to two more.

The first count of the declaration is for slander and alleges that the defendant Barry as a member of the Board in 1957 made the statement, 'It is a question of character and integrity. Burns took classified information from the Massachusetts Institute of Technology which he had no right to do and started a business on it.' The jury returned a verdict for the defendant Barry on this count. On the second count, which alleged libel against the employee, the jury returned a verdict for the defendant and no rights were reserved on this count by the plaintiff. The third count is for defamation against Barry, Schofield and Talbot for the slander alleged in count 1, and additionally for the libel alleged in count 2 against the employee in sending to the President of the Massachusetts Senate a letter stating, 'nothing in favor of registration came up. Applicant has good educational background, but he cannot seem to get references from his friends or employers.' At the trial, a motion for a directed verdict was allowed after the plaintiff's opening as to the defendants Llewellyn T. Schofield and Harold L. Talbot but denied as to the defendant Barry. Following a jury verdict for the plaintiff only against Barry, the trial judge granted Barry's motion for entry of a verdict for him under leave reserved. The case is here on exceptions (1) to the direction of a verdict on count 3 for two of the defendants, Schofield and Talbot, following the opening statement by counsel for the plaintiff; (2) to the entry of a verdict for Barry on the third count under leave reserved; (3) to the exclusion o certain evidence; and (4) to the refusal of the trial judge to give certain instructions to the jury in accordance with the plaintiff's requests.

1. In his opening the plaintiff's counsel recounted the following. The plaintiff applied for registration as an engineer in 1947 stating six references. He was advised early in 1949 that the Board needed further information about his background. He was given a hearing by the Board and later in the same year was told that his registration was denied on the ground that his references were unsatisfactory, which the plaintiff claims was untrue. Between 1949 and 1955 the membership of the Board changed but the 1955 Board also denied the application. In 1955 the plaintiff began to notice increased difficulty in procuring employmemt. He would apply, and 'a 'phone call was made to someone or other, probably to the Board, asking questions about whether he was a registered engineer,' following which the prospective employer seemed quickly to lose interest. The plaintiff then 'employed one Skilton, an associate * * * (and) friend of his to pose as a prospective employer to find out what information he could secure from the Board.' Skilton discovered easily from the Board not only that the plaintiff was not registered but why, and since he was calling up as a prospective employer under an assumed name the jury might infer that perhaps others did likewise. In addition, a letter went from the clerk of the Board to the Senator containing essentially the language detailed in count 3 of the declaration. 'Now as a result of all these activities * * * the Board * * * went way beyond their statutory authority in considering that application. They did things they had no business doing. They did things which by no stretch of the imagination could they have conceived to have been their duty and denied his registration. That no being enough, they went on to fortify this denial, which, of course, in itself was an injustice, which later became more of an injustice when they were volunteering the slander that they had been circulating among themselves * * *.'

The power of the trial judge to direct a verdict on the opening is well established. Mulvaney v. Worcester, 293 Mass. 32, 33, 199 N.E. 405, and cases cited. The function and purpose of an opening have been thoroughly discussed in Douglas v. Whittaker, 324 Mass. 398, 399--400, 86 N.E.2d 916. It is elementary that if an opening plainly fails to show a cause of action a directed verdict may be granted upon motion. Amorosso v. Farina Bros. Co., Inc., 339 Mass. 595--596, 161 N.E.2d 761. There was no error by the trial judge in the direction of a verdict for Schofield and Talbot. The nub of the plaintiff's complaint was the refusal of the Board to register him in 1949. The opening did not indicate...