Friedman v. Connors

• Decision Date: 06 November 1935
• Citation: 292 Mass. 371,198 N.E. 513
• Parties: FRIEDMAN v. CONNORS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

292 Mass. 371

198 N.E. 513

FRIEDMAN v. CONNORS.

Supreme Judicial Court of Massachusetts, Suffolk.

November 6, 1935

Action of tort in the superior court by Ruth Friedman against T. J Connors. from an order sustaining a demurrer to the declaration, plaintiff appeals.

Reversed.

Appeal from Superior Court, Suffolk County; Weed, Judge.

N Fink, of Boston, for appellant.

H. D. Linscott, of Lynn, for appellee.

FIELD Justice.

This action of tort for slander and libel was brought in the Superior Court. The declaration is in two counts as follows: (1) ‘ And the plaintiff says that some time in July, 1933, the defendant did publicly, falsely and maliciously accuse the plaintiff of a crime of larceny by uttering the following words, ‘ You (meaning the plaintiff) took a pair of shoes from the store (meaning the store wherein the defendant was employed) without paying for them’ (meaning thereby that the plaintiff did steal a pair of shoes from the defendant's store), all to her great damage, as claimed in her writ; ' (2) ‘ And the plaintiff says that the defendant did publicly, falsely and maliciously write and publish of the plaintiff in a letter the following words: ‘ I have been awaiting a call from you relative to your paying us $3.95 for a pair of boy's shoes that you took from the store without having paid for the same. I believe that you have had sufficient time to produce proof that you had paid for them, and therefore as you must realize that this constitutes a serious case for yourself, I will await until Thursday, August 17th, for you to send this amount into the store before I turn the matter over to our Legal Department,’ the defendant thereby imputing that the plaintiff had committed the crime of larceny, all to her damage, as claimed in her writ.'

The defendant demurred to the declaration as a whole, but not to either count separately, on the grounds ‘ that said declaration and the matter contained therein, in manner and form as the same are set forth, are not sufficient in law for the plaintiff to have an action against the defendant, and that said declaration does not state any cause of action against the defendant, and that the statements which the plaintiff in her declaration alleges to have been made by the defendant are not actionable.’ Unless by the particular ground of demurrer that the statements alleged to have been made by the defendant are not actionable (compare Clay v. Brigham, 8 Gray, 161; Chace v. Sherman, 119 Mass. 387, 391), no defect in the form of the declaration is specifically pointed out. See G. L. (Ter. Ed.) c. 231, § 18. Fourth; Steffe v. Old Colony R. Co., 156 Mass. 262, 30 N.E. 1137; Whiton v. Batchelder & Lincoln Corporation, 179 Mass. 169, 172, 60 N.E. 483. An order was entered sustaining the demurrer ‘ with respect to both Counts' and the plaintiff appealed therefrom. See G. L. (Ter. Ed.) c. 231, § 96; Morrill v. Crawford, 278 Mass. 250, 252, 179 N.E. 609.

It was error to sustain the demurrer. Each of the counts of the declaration sets forth a cause of action and in doing so alleges in proper form that statements were made by the defendant which are actionable. Consequently whether, if either of these counts, but not both, was demurrable, the demurrer, being to the declaration as a whole, could rightly have been sustained as to that count only need not be considered. See Brown v. Castles, 11 Cush. 348; Vitagraph, Inc., v. Park Theatre Co. of Boston, 249 Mass. 25, 31, 144 N.E. 85.

1. The first count of the declaration-for spoken words-states a cause of action for slander, and is not defective in form in any particular specifically pointed out.

In ‘ actions of libel and slander, it is sufficient to allege that the words or matter complained of were used in a defamatory sense, specifying such defamatory sense.’ G. L. (Ter. Ed.) c. 231, § 147, form 18, Instruction. This requirement is met by the first count. It alleges that words were spoken of the plaintiff by the defendant meaning that she ‘ did steal a pair of shoes from the defendant's store.’ The meaning so attributed by way of innuendo to the words alleged to have been spoken is defamatory and imputes the commission of a crime by the plaintiff. Spoken words having such a meaning are actionable per se. Dunnell v. Fiske, 11 Metc. 551, 554; Crafer v. Hooper, 194 Mass. 68, 80 N.E. 2. See Commonwealth v. Kelley, 184 Mass. 320, 323, 68 N.E. 346. See, also, Brown v. Nickerson, 5 Gray, 1, 2. The words alleged to have been spoken of the plaintiff, that ‘ You * * * took a pair of shores from the store * * * without paying for them,’ though capable of a nonslanderous meaning, are reasonably susceptible of the slanderous meaning attributed to them. Circumstances attending the use of these words might show that they were spoken with that meaning. Nye v. Otis, 8 Mass. 122, 124,5 Am.Dec. 79; Wonson v. Sayward, 13 Pick. 402,23 Am.Dec. 691; Blount v. Mason, 140 Mich. 1, 103 N.W. 525. See Lyman v. New England Newspaper Pub. Co., 286 Mass. 258, 261, 190 N.E. 542, 92 A.L.R. 1124. See, also, Commonwealth v. Barry, 124 Mass. 325, 327. That the shoes were bought by the plaintiff, with or without the intention to pay for them, and not paid for is not the only meaning of which the words complained of are reasonably susceptible. Compare Commonwealth v. Althause, 207 Mass. 32, 45, 48-51, 93 N.E. 202,31 L.R.A. (N. S.) 999. More than this may have been insinuated. Merrill v. Post Publishing Co., 197 Mass. 185, 193, 83 N.E. 419. A slander, as has been said of a libel, ‘ does not need the categorical certainty of an indictment at common law.’ Haynes v. Clinton Printing Co., 169 Mass. 512, 513, 48 N.E. 275. See Peck v. Wakefield Item Co., 280 Mass. 451, 456, 183 N.E. 70.

Since the revision of the laws by General Laws changing the rule of pleading previously in force it is not necessary that a declaration for slander to be good against a demurrer set out circumstances attending the use of the words complained of showing that they were used with a slanderous meaning. If these circumstances ‘ are necessary to make the words relied on intelligible to the court and jury in the same sense in which they were spoken,’ a statement thereof may be required on motion by the defendant. G. L. (Ter. Ed.) c. 231, § 147, form 18, Instruction; Morrill v. Crawford, 278 Mass. 250, 253, 254, 179 N.E. 609. Compare Commonwealth v. Szliakys, 254 Mass. 424, 426, 150 N.E. 190. But where the words complained of are ‘ reasonably susceptible of two or more meanings, one of which is defamatory,’ and circumstances showing that such words were used with that meaning are not set forth, an innuendo is necessary in the declaration to comply with the requirement that the defamatory sense in which the words were used be specified. Lyman v. New England Newspaper Publishing Co., 286 Mass. 258, 261, 190 N.E. 542, 92 A.L.R. 1124. An innuendo, as here, specifying that the words were used in a defamatory sense of which they are reasonably susceptible and which renders them actionable, satisfies the requirements of pleading. The principle frequently stated that an innuendo cannot add anything to the meaning of the words, whatever its significance under the former rule of pleading (see Brettum v. Anthony, 103 Mass. 37, 39, 40), signifies, as applied to the present rule, that an innuendo cannot add a meaning to the words alleged to have been used of which they are not reasonably susceptible. See Lyman v. New England Newspaper Publishing Co., 286 Mass. 258, 261, 190 N.E. 542, 92 A.L.R. 1124. Compare Colby Haberdashers, Inc. v. Bradstreet Co., 267 Mass. 166, 170, 166 N.E. 550.

This count sufficiently alleges publication. Downs v. Hawley, 112 Mass. 237, 243. Indeed the defendant makes no contention to the contrary.

2. The second count of the declaration-for written words-states a...