278 Mass. 250 | Mass. | 1932
This is an action of tort for slander. The declaration was in three counts, the second of which has been waived. The defendant demurred generally to the declaration and to each count thereof. In the Superior Court an order was entered sustaining the demurrer to the
1. The case is before us rightly on the appeal from the order sustaining the demurrer. G. L. c. 231, § 96, amended by St. 1928, c. 306, § 2. Cosmopolitan Trust Co. v. S. L. Agoos Tanning Co. 245 Mass. 69, 71. By appealing from this order without, so far as appears, asking leave to amend the first count and without amending the third count, as permitted by the order, the plaintiff elected to rely on the declaration as framed, so that this case, except for this appeal, was “ripe for final disposition by the superior court.” G. L. c. 231, § 96, as amended by St. 1928, c. 306, § 2. Cheraska v. Ohanasian, 259 Mass. 341, 344. No appeal lies from the order limiting amendment of the third count (Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, 134, Cunningham v. Lexington Trust Co. 259 Mass. 181, 188), but questions of law, if any (see Friedenwald Co. v. Warren, 195 Mass. 432, 433; Norton v. Lilley, 214 Mass. 239), involved in this order, should have been brought to us by exception. G. L. c. 231, § 113. It may be added that the plaintiff properly makes no argument as to the propriety of the order hmiting amendment and the matter is referred to only because of its bearing upon our jurisdiction and our final order.
2. The demurrer was sustained rightly as to the first count. This count, after alleging that the defendant was the head bookkeeper at a hospital to which the plaintiff was admitted as a patient, that the defendant referred the plaintiff to the social service department of said hospital, and that it is the custom and rule of that department to make a written record
A declaration in tort for slander is demurrable as insufficient in law unless the words complained of are actionable per se or special damage caused by such words is alleged. See Cook v. Cook, 100 Mass. 194; Brettun v. Anthony, 103 Mass. 37; Doyle v. Kirby, 184 Mass. 409, 411; Craig v. Proctor, 229 Mass. 339, 341. See also G. L. c. 231, § 18; Whiton v. Batchelder & Lincoln Corp. 179 Mass. 169, 172; Frisbee v. Prussian National Ins. Co. 223 Mass. 159, 160. Robinson v. Coulter, 215 Mass. 566, was an action for libel and special damage was not an essential element of the case. The count under consideration does not purport to allege special damage. The plaintiff, however, contends that the words complained of are actionable per se because they impute to her the commission of a crime against chastity.
It is no longer essential that a declaration, to be good against a demurrer, set out the circumstances necessary to make spoken words slanderous (see Pub. Sts. c. 167, § 94, Forms; Young v. Cook, 144 Mass. 38, 42, and cases cited; McCallum v. Lambie, 145 Mass. 234, 238; compare Ward v. Merriam, 193 Mass. 135, 137-138) —• though a “statement of such particulars as are necessary to make the words relied on intelligible to the court and jury in the same sense in which they were spoken may be required upon motion of the defendant” — but “it is sufficient to allege that the words . . . complained of were used in a defamatory sense,
The words alleged to have been spoken, taken in their natural sense, do not impute the commission of crime. Peculiarity is not criminal. Whatever idea of departure from a right course of conduct is conveyed by the word “wayward,” this word in its natural sense does not convey the further idea that such departure from a right course of conduct violated the criminal law. See Snell v. Snow, 13 Met. 278, 282; Riddell v. Thayer, 127 Mass. 487, 490. Nor does the statement that the plaintiff “years ago . . . began wandering around at nights,” taken alone, or with the statements charging peculiarity and waywardness (see Lovejoy v. Whitcomb, 174 Mass. 586, 587-588), in its natural sense impute to the plaintiff the commission of the criminal offence of being a common nightwalker (G. L. c. 272, § 62), or any other crime. See G. L. c. 272. Indeed the statement that the plaintiff “has always been peculiar” makes against rather than in favor of such an imputation. See Thomas v. Blasdale, 147 Mass. 438, 439.
This count of the declaration does not allege specifically that the words complained of were used in a defamatory sense or specify the defamatory sense in which they were used except as it alleges that these words “charged the plaintiff with being a person of bad moral character,” and that they meant that she was “immoral and possessed bad moral conduct beyond the probability of reform.” We need not consider whether the words are capable of this
As the words alleged to have been spoken are not actionable per se, questions of publication and privilege argued need not be discussed.
3. The demurrer was sustained rightly as to the third count. This count alleges “that on or about August 17, 1922, the defendant, in making a further statement to those in charge of the social service work and those in charge of the hospital,” repeated the statements set forth in the first count in substantially the same language, “with the result that the defendant [sic] was without any reasonable or probable cause, caused to be arrested and seized by three police officers and taken in a patrol wagon in the view of divers and sundry persons through the streets of the city of Boston and imprisoned in the Psychopathic Hospital until August 26, 1922, upon which date she was released with the result that the plaintiff because of the slanderous declaration made by the defendant had been injured in her reputation, humiliated, subjected to divers indignities and injuries prevented from obtaining suitable and sufficient employment and prevented from obtaining necessary and suitable medical and surgical treatments and to other and various injuries as set forth in her writ.”
This count stands no better than the first count since the spoken words complained of are substantially the same in both counts and the additional matter in the third count does not sufficiently allege that the defendant by these spoken words caused special damage to the plaintiff.
The allegation that as a result of the defendant’s statements the plaintiff without reasonable and probable cause was caused to be arrested, seized by police officers, conveyed through the streets in a patrol wagon and imprisoned in a psychopathic hospital — not the hospital in which the defendant was employed — does not connect the defendant with these events in such a way as to make her liable in
The allegations that the plaintiff was “injured in her reputation, humiliated, [and] subjected to divers indignities and injuries . . . and to other and various injuries as set forth in her writ” are descriptive of general, not special, damages. Craig v. Proctor, 229 Mass. 339, 343. So, also, is the allegation in general terms that the plaintiff was “prevented from obtaining suitable and sufficient employment,” since the words complained of might have been spoken of any one, whether having any particular occupation or not, and, so far as alleged, were not spoken with the purpose of injuring the plaintiff in her trade or profession, Morasse v. Brochu, 151 Mass. 567, 572-573. Compare Craig v. Proctor, 229 Mass. 339, 342. The plaintiff’s being “prevented from obtaining necessary and suitable medical and surgical treatments” — so far as the allegation goes — is a phase of the general impairment of her reputation, which is within the scope of general damages. It may be added that if the declaration is construed strictly these allegations are insufficient on another ground, that is, that these elements of damage are alleged to have resulted from the arrest, seizure, transportation and imprisonment of the plaintiff, and, as above stated, the declaration does not sufficiently set forth a causal relation between the defendant and these events.
4. The appeal, as already indicated, presupposes that the case is ripe for final judgment in favor of the defendant if
So ordered.
