Picard v. Brennan

• Decision Date: 19 July 1973
• Parties: Richard L. PICARD v. Frank J. BRENNAN et al.
• Court: Maine Supreme Court

Page 833

307 A.2d 833

Richard L. PICARD v. Frank J. BRENNAN et al.

Supreme Judicial Court of Maine.

July 19, 1973.

Skelton, Taintor & Abbott by Charles H. Abbott, Lendall L. Smith, Lewiston, for plaintiff.

Daniel G. Lilley, Portland, Platz & Day by John A. Platz, Lewiston, for defendants.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, WERNICK and ARCHIBALD, JJ.

WEBBER, Justice.

An action for slander was heard by a Justice of the Superior Court, jury waived, and judgment for five hundred dollars was awarded to the plaintiff as against the defendant Brennan. We sustain Brennan's appeal.

By his amended complaint the plaintiff charged that defendant Brennan made statements 'in substance as follows:

(a) That Plaintiff had been guilty of short-weighting customers on several occasions.

(b) That Plaintiff did not leave the employ of Wilson & Co., Inc. voluntarily but rather was fired by Defendant Wilson & Co., Inc. because he had cheated customers of Defendant Wilson & Co., Inc.' ¹

The plaintiff had formerly been employed by Wilson & Co., Inc. as a meat manager and as such was responsible for the cutting and weighing of meat. At the time the alleged statements were made, the plaintiff had left that employment and was engaged in the meat business on his own account in competition with Wilson. The defendant Brennan was a salesman employed by Wilson. Brennan made statements, the exact wording of which is disputed, to the owner and to an employee of a business concern which had formerly purchased meat exclusively from Wilson but which, because of some dissatisfaction with Wilson's service, had begun to purchase meat from the plaintiff.

The evidence with respect to precisely what was said was in sharp conflict and the credibility of key witnesses was vigorously attacked. The Justice below was thus afforded considerable latitude in determining what portions of the testimony reflected the true facts. This becomes important when we take note of the facts actually found and those facts which, though alleged, were not found. The findings of fact are fully supported by the evidence and are not clearly erroneous. The result we reach stems from an application of the controlling principles of law to those findings.

The Justice below found specifically that defendant Brennan did use language in substance indicating that the plaintiff, while employed by the former Defendant Wilson & Company, Inc., as meat manager, was 'careless in the weighing of meats in several instances,' and that 'the plaintiff had been dismissed from his former employ rather than voluntarily resigning, as the plaintiff had inferred to his customer.' He further found that the statement with respect to the careless weighing of meats was true 'and so as to this aspect of the case no liability attaches to the defendant.' It was not disputed that the plaintiff resigned and was not dismissed from his employment by Wilson & Co., Inc. so the statement with respect to dismissal was false. We deem it significant that the factfinder was apparently not satisfied and therefore failed to find that the statement related the dismissal to the cheating of customers as alleged in the complaint, or even to the careless weighing of meats. Since, as we have noted, the evidence on this point was conflicting, the findings of fact may not be disturbed. Finally, the Justice below concluded that the words used were slanderous per se and in the absence of any proven special damages awarded only those damages which in his judgment were presumed to flow from the use of words which are slanderous per se, in this case five hundred dollars.

As early as 1850 in Barnes v. Trundy, 31 Me. 321 this Court held that words falsely spoken are slanderous per se if they (a) charge a punishable offense, (b) impute a disgraceful disease or (c) relate to a profession, occupation or official station in which the plaintiff was employed. The rule expressed in (c) has been applied in a number of cases. Orr v. Skofield (1869) 56 Me. 483 (charging shipmaster with dishonesty); Pattangall v. Mooers (1915) 113 Me. 412, 94 A. 561 (attack on professional integrity of an attorney); Boulet v. Beals (1962) 158 Me. 53, 177 A.2d 665 (charging motel proprietor with unethical and dishonest practices); and Farrell v. Kramer (1963) 159 Me. 387, 193 A.2d 560 (charging that registered nurse was unfit for the care of patients).

Having in mind that proof of the truth of statements alleged to be slanderous is always a defense, and that the defendant is therefore entitled to know precisely what statement is attributed to him, we have always required that 'the words must be proved strictly as alleged.' Estes v. Estes (1883) 75 Me. 478. This requirement was relaxed only slightly in Kimball v. Page (1902) 96 Me. 487, 52 A. 1010 in which our Court held that material words, those essential to the charge made, must be proved as alleged, but that some latitude may be allowed with respect to unimportant, connecting or descriptive words. In the instant case it is apparent that the evidence failed to persuade the factfinder that the defendant uttered the 'material words' contained in the statement attributed to him by the complaint, 'that Plaintiff did not leave the employ of Wilson & Co., Inc. voluntarily but rather was fired by Defendant Wilson & Co., Inc. because he had cheated customers of Defendant Wilson & Co., Inc.' (Emphasis ours)

We are left with the only statement determined by the factfinder to be false being that 'the plaintiff had been dismissed from his former employ rather than voluntarily resigning.' The issue becomes whether or not a false charge that an employee was 'dismissed' or 'fired' from his employment, without more, is defamatory. We answer in the negative.

We start with the basic rule of construction set forth in Chapman v. Gannett (1934) 132 Me. 389, 391, 171 A. 397, 398, as follows:

"In determining whether a given publication is libelous, the language thereof must be taken in its ordinary significance and must be construed in the light of what might reasonably have been understood therefrom by the persons who read it. The question is how would persons of ordinary intelligence...