Smiddy v. Pearlstein

• Decision Date: 26 February 1909
• Citation: 87 N.E. 572,201 Mass. 246
• Parties: SMIDDY v. PEARLSTEIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 246

87 N.E. 572

SMIDDY v. PEARLSTEIN.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1909

The case was submitted to the jury on the following questions and they returned answers as follows:

(1) 'Did the defendant utter the words, 'Smiddy, you are a thief and a robber,' on January 9, 1899?' Answer 'Yes.'

(2) 'Did the defendant utter the same words January 16 1899?' Answer: 'Yes.'

(3) 'Did the defendant utter the same words February 7 1899?' Answer: 'Yes.'

(4) 'Did the defendant utter the same words February 15, 1899?' Answer: 'Yes.'

(5) 'Did the defendant utter the same words on March 11, 1899?' Answer: 'No.'

The jury returned a verdict for plaintiff in the sum of $500, the case being submitted on all the counts of the declaration, and the case was reported to the Supreme Judicial Court for determination of the question whether the court erred in refusing all of defendant's requests to rule except the seventh, eleventh, and twelfth, except so far as given in the charge to which defendant excepted. The requests to rule were as follows:

'(1) Upon all the evidence the plaintiff is not entitled to recover.

'(2) Upon all the evidence it does not appear that any one but the plaintiff heard the words alleged to have been spoken of him by the defendant in the office of A. Gove & Sons, and the plaintiff is not entitled to recover upon the first and second counts of the declaration.

'(3) Upon all the evidence it does not appear that any one believed the words alleged to have been spoken of the plaintiff by the defendant in the office of A. Gove & Sons, even if the words were in fact uttered, and the plaintiff is not entitled to recover upon the first and second counts of the declaration.

'(4) Upon all the evidence it does not appear that any one but the plaintiff heard the words alleged to have been spoken of the plaintiff by the defendant at the house on Porter street, and the plaintiff is not entitled to recover on the third and fourth counts of the declaration.

'(5) Upon all the evidence it does not appear that any one but the plaintiff and his attorneys heard the words alleged to have been spoken of the plaintiff by the defendant in the corridors of the courthouse, and it appears that, if the words were in fact spoken, they did not believe them and the plaintiff is not entitled to recover on the fifth and sixth counts of the declaration.

'(6) Upon all the evidence it does not appear that any one but the plaintiff and his attorney Nelson heard the words alleged to have been spoken of the plaintiff by the defendant at the office of Colby & Bayley, and it appears that the attorney Nelson did not believe them, and the plaintiff is not entitled to recover on the seventh and eighth counts of the declaration.

'(7) The allegations contained in the seventh and eighth counts of the plaintiff's declaration of words spoken on February 16, 1899, cannot be supported by any conversation which may have taken place in the office of Colby & Bayley on March 11, 1899.

'(8) If the jury shall find that the words, even if spoken by the defendant as alleged by the plaintiff, were not in fact believed by the persons to whom they were spoken, the plaintiff is not entitled to recover.

'(9) Unless the words alleged to have been uttered by the defendant were in fact spoken by him and in such a public way that the general reputation of the plaintiff was thereby affected to his damage, he cannot recover in this action.

'(10) If the jury shall find that the words alleged to have been spoken by the defendant were in fact spoken by him, only such damages can be recovered by the plaintiff as would compensate him for such injury as he has actually

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