Gaudette v. Carter
| Decision Date | 08 November 1965 |
| Docket Number | No. 10591,10591 |
| Citation | 100 R.I. 259,214 A.2d 197 |
| Parties | Clarence GAUDETTE v. Maxwell R. CARTER. Ex. |
| Court | Rhode Island Supreme Court |
Gerald A. Oster, Irving N. Espo, Lincoln, for plaintiff.
Winograd, Winograd & Marcus, Allan M. Shine, Providence, for defendant.
This action of of trespass on the case for slander was tried before a justice of the superior court sitting with a jury. After completion of testimony by both parties the trial justice granted the defendant's motion for a directed verdict and as reason therefor stated that absent any evidence that the alleged defamatory statement had been heard by a third person there was no publication. The case is here on the plaintiff's exception to the granting of the motion.
The record reveals that plaintiff and defendant were attending a public auction, the former as a prospective bidder and the latter as one of the several who were in charge of and conducting the auction. For reasons not here material, the parties became embroiled in a heated argument, their voices rose, each shouted at the other, and at some point defendant, by then provoked and angry, lost his temper and called plaintiff a thief. Although the commotion took place in front of and in close proximity to the auctioneer he testified that he did not hear what was said even though he was aware of what was taking place. The only other verbal testimony relating to publication came from another prospective bidder. Notwithstanding that he stood only 'seven or eight feet' from the auctioneer during the verbal altercation between the parties and observed it, he testified that he could not identify those who were arguing and that he had not overheard anything said by either of the parties.
Of course, a publication is an essential element to a claim for damages for slander and unless the defamatory words are communicated to a third person and understood by him there can be no recovery. To state the rule, however, is to beg the question for our concern here is not with the essentiality of a publication but with whether on a motion for a directed verdict a question of credibility arises when the third persons who were present and close enough to overhear and understand deny that they heard the defamatory statement.
The defendant cites several decisions which he says support his position. Each is either distinguishable on its facts, or premised upon the rule applying elsewhere as to the effect to be accorded positive testimony which while not impeached by other direct testimony is inconsistent with other evidentiary circumstances. Falling in the first category is Tocker v. Great Atlantic & Pacific Tea Co., 190 A.2d 822 (D.C.App.), where it appeared that the plaintiff had made some purchases at the defendant's market and had proceeded through the check-out line. After leaving the premises and while on the public sidewalk only a few steps from the exit door, she was accused by the store manager of stealing merchandise. Holding that a direction of a verdict for the defendant on these facts was proper, the court commented on the absence of any evidence indicating that the defamatory words 'were spoken in a loud clear tone susceptible of being overheard or that his [the store manager's] action attracted any attention or created any disturbance on the sidewalk.' The clear inference to be drawn from this case as well as from Walter v. Davidson, 214 Ga. 187, 104 S.E.2d 113, also cited by defendant, is that a contrary result would have been reached had there been any such evidence.
Royston v. Vander Linden, 197 Iowa 536, 197 N.W. 435, upon which defendant places his principal reliance, while not distinguishable upon its facts is illustrative of the result obtaining in a jurisdiction which apparently follows a rule differing from that here prevailing as to the impeaching effect of evidentiary circumstances upon positive testimony. In that case it was held that the presumption of publication which attaches upon production of evidence of a defamatory utterance in the presence of another is rebutted by a denial from the third person that he heard what was said.
When the authorities cited by defendant are so scrutinized, they are of no assistance to him. The only question before us is whether on a motion for a directed verdict positive...
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Socha v. National Ass'n of Letter Carriers
...was published and that it was defamatory in order to recover. See Elias v. Youngken, 493 A.2d 158, 161 (R.I.1985); Gaudette v. Carter, 100 R.I. 259, 214 A.2d 197, 199 (1965). Publication requires that the defamatory words be communicated to a third person and understood by him or her. Gaude......
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Pontbriand v. Sundlun
...that the information be disseminated in a newspaper but merely that it be repeated to a third party. See Gaudette v. Carter, 100 R.I. 259, 260-61, 214 A.2d 197, 199 (1965); Restatement (Second) Torts § Next the tort requires that any actionable disclosure must involve "private fact[s]." Sec......
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Almonte v. Kurl
...the defendant had acted negligently.”); Economou v. Valley Gas Co., 112 R.I. 514, 521, 312 A.2d 581, 586 (1973); Gaudette v. Carter, 100 R.I. 259, 262, 214 A.2d 197, 200 (1965). As a result, a plaintiff may not recover based on “positive evidence that contains inherent improbabilities or co......
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Food Lion, Inc. v. Melton
...Harris v. Temple, 99 N.C.App. 179, 392 S.E.2d 752, 753-54, review denied, 327 N.C. 428, 395 S.E.2d 678 (1990); Gaudette v. Carter, 100 R.I. 259, 214 A.2d 197, 200 (1965); Duckworth v. First Nat'l Bank, 254 S.C. 563, 176 S.E.2d 297, 301 We agree with this principle and hold that, in order to......