Cinquanta v. Burdett
| Decision Date | 30 December 1963 |
| Docket Number | No. 20861,20861 |
| Parties | , 1 A.L.R.3d 840 Frank H. CINQUANTA, Plaintiff in Error, v. A. N. BURDETT, Defendant in Error. |
| Court | Colorado Supreme Court |
Robinson & Caplan, Boulder, for plaintiff in error.
No appearance for defendant in error.
We will refer to the parties as they appeared in the trial court where plaintiff in error was the plaintiff and defendant in error was the defendant.
In his complaint the plaintiff alleged that the defendant had uttered slanderous statements concerning him and that said statements amounted to slander per se.
The specific words complained of are as follows:
No special damages were proved and the trial court, holding that as a matter of law the words spoken did not constitute slander per se, granted the defendant's motion to dismiss. The plaintiff contends that the offending words impute either a criminal offense and/or financial irresponsibility and dishonesty in his trade and that by the mere proof of their utterance he has made a prima facie case of slander per se. We do not agree.
The plaintiff is engaged in the restaurant business in Boulder. The record discloses that the offending words were spoken during the course of a heated argument in the plaintiff's restaurant over a dispute as to whether plaintiff should pay defendant for work performed by the defendant on the restaurant's neon sign or whether plaintiff's insurance company should pay. The defendant and some friends came to the restaurant and ordered an expensive meal. When they had finished dining, the defendant insisted on signing the check rather than paying for the dinners and a loud argument followed in which the defendant spoke, among other things, the words complained of. The fact that the plaintiff owed the defendant money which he refused to pay was the central point of argument betwen the parties.
In actions involving slander, there is always a temptation to write a treatise on the subject. We shall attempt to suppress that tendency here and deal only with the specific issue at hand. In resolving the controversy here we must determine whether the words spoken by the defendant were such as to either impute a crime to the plaintiff or to affect his credit and financial reputation by imputing financial difficulty or dishonesty for in such cases the law in Colorado permits recovery for slander without proof of special damages. O'Cana v. Espinosa, 141 Colo. 371, 347 P.2d 1118; McKenzie v. Denver Times Pub. Co., 3 Colo.App. 554, 34 P. 577; Kobey v. Eddy, 21 Colo.App. 140, 121 P. 948.
We must first consider whether the words 'crook' or 'crooks' impute a crime or a criminal offense to the plaintiff. In determining this question we cannot isolate the offending words from their context and we must examine the words in the light of the total attendant circumstances. Yakavicze v. Valentukevicious, 84 Conn. 350, 80 A. 94; Herman v. Post, 98 Conn. 792, 120 A. 606; Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S.W. 1143, 33 L.R.A., N.S., 216; Bennett v. Seimiller, 175 Kan. 764, 267 P.2d 926; Thompson v. Bernard, 1 Camp. 48, 170 Eng.Rep. 872; Prosser, Torts, 2d Ed., § 92, p. 581; 33 Am.Jur., Libel & Slander, § 87, p. 100.
To come within the exception permitting recovery in an action for slander without proof of special damage because the words spoken impute a crime, it is the general rule that such words must impute conduct constituting a criminal offense chargeable by indictment or by information either at common law or by statute and of such kind as to involve infamous punishment or moral turpitude conveying the idea of major social disgrace. Restatement, Torts, § 571, pp. 171-175; Prosser, Torts, 2d Ed., § 93, p. 588. Mere words of abuse...
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