Gould v. Kramer

• Decision Date: 15 October 1925
• Citation: 253 Mass. 433,149 N.E. 142
• Parties: GOULD v. KRAMER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 433

149 N.E. 142

GOULD

v.KRAMER.

Supreme Judicial Court of Massachusetts, Franklin.

Oct. 15, 1925.

Exceptions from Supreior Court, Franklin County; Winfred H. Whiting, Judge.

Action of tort by Harold I. Gould against Abraham B. Kramer to recover for alleged malicious and false statements made by defendant concerning plaintiff, by reason of which plaintiff lost contract of employment. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

C. Fairhurst and W. A. Davenport, both of Greenfield, for plaintiff.

P. H. Ball and J. T. Bartlett, both of Greenfield, for defendant.

BRALEY, J.

The plaintiff, a mechanical engineer of much experience in various employments, was on February 23, 1923, engaged at a yearly salary of $3,900 by the Western Factory Insurance Association of Chicago, Ill., a company composed of 42 insurance companies throughout the United States. Its business was to inspect and take risks of mercantile factory buildings. The plaintiff's duties were to inspect the buildings periodically, and go through the factories, obtain design of buildings, and their location and make plans. His connection with the company terminated April 3, 1923, and the present action is for damages on the ground that the defendant wrongfully procured his loss of employment. The second and third counts of the declaration having been waived, the case was submitted to the jury on the first county, which alleges:

‘That the defendant without justifiable cause maliciously intending, and designing to injure the plaintiff in his business, wrote or caused to be written to the plaintiff's employer certain statements regarding the plaintiff; that said statements were untrue which the defendant well knew, and that by reason thereof the plaintiff lost the benefit of his employment and was otherwise greatly damaged.’

The answer was a general denial, with averments that the statements were true and were published without malice. The action as the judge correctly instructed the jury was not for publishing a libel. The wrong charged is causing a pecuniary loss to the plaintiff without justifiable cause, and with a malicious purpose at the time to inflict it. Walker v. Cronin, 107 Mass. 555, 562;May v. Wood, 172 Mass. 11, 14, 51 N. E. 191;McGurk v. Cronenwett, 199 Mass. 459, 461, 462,85 N. E. 576,19 L. R. A. (N. S.) 561

The manager of the company on April 4, 1923, sent the plaintiff a letter containing the following statements:

‘Since the receipt of the first letter from Mr. Kramer I have looked over your application for a position with us and interviewed the heads of the departments. * * * And I am strikingly impressed with the thought, that your education, experience and personality combined had equipped you thoroughly for our work more than has been the case with most people, including the writer, that have ever been connected with the association. * * * To a certain extent your private life and affairs do not concern us, although we must admit, based on our own experience, that if a man has domestic troubles or those that might be classed as simply sex, his efficiency in the business is bound to be affected. We do not care to pass judgment on anything of this nature that you have experienced in the past or plan for the future, but we positively cannot be annoyed with such correspondence as we are being subjected to and unless you can wholly protect us against such correspondence we would certainly prefer that you sever your connection with us at once.’

The manager also had written the defendant acknowledging the receipt of--

‘your letter of the 15th in reference to Harold Gould. You say he has ‘deserted a wife’ and it would be interesting to know whether he is legally divorced. And further you say, ‘He is inducing your daughter to leave her home and come to live with him.’ Do you mean that he is proposing that they live together outside the law or is he in a position to and is offering legal marriage?'

The letter thus referred to being out of the jurisdiction of the court, secondary proof of its contents was competent. Topping v. Bickford, 4 Allen, 120.

The letter of the manager, which the defendant admitted having received, was transmitted to the plaintiff's mother, with a letter purporting to be signed by Mrs. A. L. Kramer. This letter and the signature were in the handwriting of Florence Kramer, a daughter of the defendant. In so far as material it reads:

‘In reply to the letter which I have sent to the firm by which Harold is employed I have received the enclosed letter. I am sending it to you hoping that you will answer it for I am sure you can write more effectively that I.’

But it does not appear that Mrs. Kramer had written to or received and letters from the plaintiff's employer, and the question whether, on the evidence of the defendant's son, Florence acted at the defendant's request, or with his sanction, was for the jury.

While it was undisputed that the plaintiff was married, but did not live with his wife, and had made the social acquaintance of the defendant's daughter Irene, the jury were warranted in specially finding that the statements, that the plaintiff had deserted his wife and was soliciting the defendant's daughter to live with him illicitly were false. The plaintiff testified, that he resigned because of the manager's letter. It could be found that it was impossible for him to protect the company from further attacks, and under such conditions the jury could say a formal notice of discharge was unnecessary. It was a question of fact whether the statements to the company caused his loss of employment, or whether regardless of any coercion he resigned of his own free will.

The eleventh request, that ‘if the plaintiff resigned his position without being asked to do so he cannot recover,’ was sufficiently...