Swagman v. Swift & Co.

• Decision Date: 19 September 1967
• Docket Number: No. 2,Docket No. 2080,2
• Citation: Swagman v. Swift & Co., 152 N.W.2d 562, 7 Mich.App. 608 (Mich. App. 1967)
• Parties: Benjamin E. SWAGMAN, Plaintiff-Appellant, v. SWIFT AND COMPANY, an Illinois corporation, d/b/a in Michigan as Swift and Company Ice Cream Division, Defendant-Appellee
• Court: Court of Appeal of Michigan

Page 562

152 N.W.2d 562

7 Mich.App. 608

Benjamin E. SWAGMAN, Plaintiff-Appellant, v. SWIFT AND COMPANY, an Illinois corporation, d/b/a in Michigan as Swift and Company Ice Cream Division Defendant-Appellee.

Docket No. 2080.

Court of Appeals of Michigan, Division No. 2.

Sept. 19, 1967.

Lee G. Sheffer, Lansing, Laurence D. Fowler, Lansing, of counsel, for appellant.

Paul C. Younger, Lansing, for appellee.

Before HOLBROOK, P.J., and FITZGERALD and GILLIS, JJ.

GILLIS, Judge.

Plaintiff, Benjamin E. Swagman, appeals from a summary judgment granted to defendant, Swift and Company, on June 13, 1966, in the Ingham county circuit court. Plaintiff's appeal centers upon counts 4, 5 and 7 of his third amended complaint dated March 30, 1964, which plaintiff contends raised factual issues that were improperly disposed of by summary judgment pursuant to GCR 1963, 117.

Counts 4 and 5 of the amended complaint present substantially similar questions and will therefore be considered together. Count 4 states that on June 12, 1963, in the presence of Robert W. Love, Mr. W. L. Gooch, acting in the capacity of management for the defendant, uttered the following defamatory words: 'Has Swagman pulled any shady deals here too?' Count 5 concerns a statement also allegedly made on June 12, 1963 by Mr. O. J. Salisbury, acting in the capacity of management for the defendant, in the presence of one Paul Thomas. The alleged defamatory words in this instance were: 'Was he a little on the crooked side here too?' The only allegation of damage pleaded in count 4 was that the statements caused irreparable injury to plaintiff's character and reputation in the community. Count 5 was even more limited in its allegation of damage, i.e., 'causing irreparable injury to plaintiff's reputation.'

It is well established that where words constitute slander Per se, special damages need not be alleged or proved. See Newman v. Stein (1889), 75 Mich. 402, 42 N.W. 956. On appeal, plaintiff agrees that the words 'crook' or 'crooked' alone are not slanderous Per se but that 'the words must be examined in the light of the total attendant circumstances; (and) that these circumstances are facts to be decided by a jury who hears the evidence and observes the witnesses.'

Plaintiff's complaint recites that he was employed by defendant as a salesman. If the alleged slanderous words 'were spoken of and concerning his profession and employment * * * then the words are actionable in themselves and it was unnecessary to aver special damages.' Mains v. Whiting (1891), 87 Mich. 172, 181, 49 N.W. 559. However, the Mains Case also states at p. 181, 49 N.W. at p. 562.

'In this case the plaintiff * * * expressly avers that they (the words) were spoken of and concerning his profession and employment. * * * Where such averments are made * * * it becomes a question of fact to be determined by a jury.'

The instant case is distinguishable from Mains in that the complaint and amended complaint fail to allege that the words were spoken of and concerning his employment. The complaint must allege a connection between the alleged slander and plaintiff's profession and absent this connection, the complaint is fatally defective.

The case of Smedley v. Soule (1900), 125 Mich. 192, 197, 198, 84 N.W. 63, 65, is directly in point with the instant case and is therefore quoted...