Steward v. World-Wide Automobiles Corp.

• Decision Date: 08 July 1959
• Docket Number: WORLD-WIDE
• Parties: Clifford STEWARD and Veronica Steward v.AUTOMOBILES CORP. and Arthur Stanton.
• Court: New York Supreme Court

Page 540

189 N.Y.S.2d 540

20 Misc.2d 188

Clifford STEWARD and Veronica Steward v. WORLD-WIDE AUTOMOBILES CORP. and Arthur Stanton.

Supreme Court, Special Term, Queens County, Part I.

July 8, 1959.

Hyman D. Siegel, New York City, Louis Levine, New York City, of counsel, for plaintiffs.

Manning, Hollinger & Shea, New York City, Ralph L. Ellis, New York City, of counsel, for defendants.

J. IRWIN SHAPIRO, Justice.

The defendants move to dismiss each of the five causes of action set forth in the complaint upon the ground of insufficiency. The first four are pleaded on behalf of the plaintiff Clifford Steward, and the fifth on behalf of his wife Veronica Steward.

The first three causes of action are substantially the same; they deal with slanders allegedly uttered by the defendants in June, September and October 1957. The June utterance was in the following words:

"He (meaning plaintiff, Clifford Steward) has a police record as long as your arm; he has been arrested many times, and is a notorious character'.'

Those of September and October were as follows:

'He (meaning plaintiff, Clifford Steward) has a police record as long as your arm; he has been arrested many times, his name is upon every police blotter in Long Island; and is a notorious character'.'

Each cause of action also alleges (the first cause by implication and the other two expressly):

'That thereby defendants meant and intended to mean that plaintiff was a criminal, he had committed unmerous crimes, was of unsavory reputation and character, unworthy of belief, and one not to do business with, but to be shunned.'

Then follow the allegations in each cause of action:

'That the aforementioned words and statements were circulated amongst the automobile trade, associates, banks, finance firms, business acquaintances and friends of plaintiffs, and others, as defendants calculated and intended they would be.'

and

'That said words and statements were wholly false and untrue, scurrilous and defamatory, and thereby plaintiff, Clifford Steward, was injured in his reputation, credit, good name and business standing, and was a factor in the loss of his position in Cliff Motors, Inc. and his income therefrom, and he suffered great pain and mental anguish, shame, and humiliation, all to his damage in the sum of $100,000.00.'

To fully understand the nature of the alleged slanders and their legal effect in this case, it is necessary to consider some of the other allegations contained in the complaint. Plaintiffs are husband and wife. The corporate defendant conducts and operates a large and extensive distributorship in several states, including New York, for German low priced automobiles under the brand name Volkswagen. The individual defendant is the president, chief executive officer, director and stockholder of the corporate defendant.

Cliff Motors, Inc., not a party to this action, was organized in the State of New York; plaintiff Veronica Steward, is a 50% stockholder, president and director, and her husband, the co-plaintiff, is 'an employee who exercised joint control and management of the affairs of the corporation, of all of which defendants had knowledge'; that the corporate defendant granted to Cliff Motors, Inc., a franchise as a sales agency and dealer for the sale of Volkswagen automobiles in the Great Neck area of Nassau County, and that Cliff Motors, Inc., enjoyed marked success and had established a good reputation for integrity, honesty and fair business dealings, so that during the times in 1957 mentioned in the complaint its franchise as a Volkswagen sales agency represented a valuable asset worth at least $100,000.

In evaluating the sufficiency of the first three causes of action, the difference between slander and slander per se must be carefully noted. If words are slanderous per se the law presumes damage to reputation and business. Rager v. McCloskey, 305 N.Y. 75, 79, 111 N.E.2d 214, 216. By the same token if the words are not slanderous per se, no such presumption exists, and to make the words actionable the complaint must allege special damage. Weiss v. Nippe, 5 A.D.2d 789, 170 N.Y.S.2d 642.

The first question, therefore, is: Are the words uttered by the defendants in this case slanderous per se? The answer depends on whethor not they come within any one of the three following categories: (1) words which impute some offensive or loathsome disease; (2) words charging a person with a crime involving moral turpitude or which subject the complainant to infamous punishment; (3) words spoken in relation to one's business or trade and which have a natural tendency to injure him in his business or trade (Moore v. Francis, 121 N.Y. 199, 23 N.E. 1127, 8 L.R.A. 214; Hume v. Kusche, 42 Misc. 414, 87 N.Y.S.2d 109; Riley v. Baddour, Sup., 73 N.Y.S.2d 140; Seelman, 'Law of Libel & Slander in the State of New York', p. 630).

It is obvious that the words here spoken do not come within the first category, for they do not impute to the plaintiff some offensive or loathsome disease; not do they come within the second category, for the mere charge that plaintiff has a police record does not imply that the arrests--or even the convictions thereon if there were any such--were for crimes involving moral turpitude or which subjected the plaintiff to infamous punishment. Riley v. Baddour, supra; Brooker v. Coffin, 5 Johns. 188; Seelman, supra, pp. 630-633. The police record, the arrests and the police blotter may all be based upon mere offenses, not even crimes, such as disorderly conduct or vagrancy. There are many categories of offenses and misdemeanors which give one 'a police record'; which means that the offender 'has been arrested' and that his name is upon a 'police blotter.' These, however, are very different from the necessary allegations in a slander action that the words spoken about the plainiff charge him 'with a crime involving moral turpitude' or with a crime subjecting him to 'infamous punishment.' It is apparent that the alleged utterances in this case fall far short of the 'crime charge requirements' laid down in the slander cases.

This leaves for consideration whether the words here spoken may be deemed to have been uttered in relation to plaintiff's business or trade and which tended to injure him therein. Although it is averred as a conclusion that plaintiff Clifford Steward 'exercised joint control and management of the affairs of the corporation', the complaint makes it clear that he was not a stockholder, officer or director therein--in short, that he was a mere employee. The words uttered to be actionable here must, therefore, have been spoken of him in regard to his employment. It is not sufficient if they merely tended to injure him therein.

As stated by Seelman, supra (pp. 613, 691), and quoted with approval in Gurtler v. Union Parts Mfg. Co., 285 App.Div. 643, 646, 140 N.Y.S.2d 254, 258, affirmed 1 N.Y.2d 5, 150 N.Y.S.2d 4:

'It is not sufficient that they tend to injure plaintiff in his business, they must have been spoken of him in his business.' (Emphasis supplied.)

In Gatley on Libel and Slander (3rd ed., p. 61), also quoted with approval in Gurtler, we find it to be the rule that

'There must be some reference, direct or indirect, in the words or in the circumstances attending their utterance, which connects the slander with such office or profession or trade. If the words merely impute to the plaintiff some misconduct unconnected with his office, profession, or trade, they are not actionable without proof of special damage; it is not sufficient that they are calculated to injure him therein.' (Emphasis supplied.)

In Shakun v. Sadinoff, 272 App.Div. 721, 74 N.Y.S.2d 556, the court also cited the foregoing quotations from Gatley with approval.

In Hume v. Kusche, 42 Misc. 414, 87 N.Y.S. 109, the alleged slander was: 'You are dishonest, I came for money and I don't care whether I injure you in your business or not; you are dishonest, you did Hofmeiser out of $200 which you owed him.' Of this Gaynor, J., said (42 Misc. at page 415, 87 N.Y.S. at page 109):

'They [the words] do not touch him in his skill or credit as a tailor. Moreover, there is no allegation in the complaint that the words were spoken of him in the way of his business; and that is essential. (Odgers, Bigelow's Ed. p. 64).'

There is no allegation in the instant complaint, nor any inference fairly deducible therefrom, that the defendants' utterances were spoken of plaintiff 'in his business' or as an 'employee' of Cliff Motors, Inc. The fact that defendants' statements 'impute to the plaintiff some misconduct' is 'not actionable without proof of special damage' since there is nothing 'which connects the slanders with' plaintiff's 'profession or trade.'

Since under the authorities the utterances charged to the defendants in the first three causes of action are not slanderous per se, they are insufficient as causes of action for slander without appropriate allegations of special damage. Weiss v. Nippe, supra; Gurtler v. Union Parts Mfg. Co., supra; Shakun v. Sadinoff, supra; Hyatt v. Salisbury, 207 Misc. 785, 143 N.Y.S.2d 162.

The plaintiff contends that paragraphs thirteenth and fifteenth of his complaint sufficiently allege special damage. In substance those allegations are to the effect that by reason of the utterances 'he was injured in his reputation, credit, good name and business standing and was a factor in the loss of his position in Cliff Motors, Inc., and his income therefrom.' Such general statements fall short of setting forth a detailed showing that the alleged slanders actually caused him pecuniary damage and the nature thereof. The conclusory claim that the utterances were 'a factor in the loss of his position in Cliff Motors, Inc., and his income therefrom' hardly suffices as a statement of special damage.

In King v. Sun Printing & Publishing Co., 84 App.Div. 310, 82 N.Y.S. 787 affirmed 179 N.Y. 600, 72 N.E. 1144,...