Summary
holding that where a charge of slander was based on "the statement that the plaintiff was ignoring the rights of her brothers and sisters and endeavoring wrongfully to prejudice them by asking the defendant to make a separate settlement of the judgment against her and her brothers and sisters," the allegedly wrongful utterance was "in effect simply that she was availing herself of her rights under the law, which, of course, cannot be construed as a slanderous statement."
Summary of this case from McGee v. Simon Schuster, Inc.Opinion
No. 31036
Decided December 23, 1947.
Slander — Cause of action not stated by petition — Allegation that judgment debtor sought separate settlement of joint judgment — Neither commission of crime nor unlawful use of funds charged — Statement that trustee undertaking to use trust funds for personal debts.
1. A cause of action in slander is not stated by an allegation in a petition that the defendant stated that plaintiff as a debtor sought a separate settlement of s joint judgment against such debtor and her brothers and sisters and thus endeavored to prejudice them, and that she took an unnatural attitude toward them.
2. A petition alleging that the defendant falsely and maliciously spoke and published that the plaintiff was "undertaking to use trust funds in her care to Pay her own personal debts and to obtain such separate settlement upon said judgment by using trust funds belonging to her son" charges neither the commission of a crime, punishable under the laws of this state, nor that the use of such funds, if accomplished, would be unlawful or unauthorized, and fails to state a cause of action in slander.
APPEAL from the Court of Appeals for Cuyahoga county.
This cause originated in the Court of Common Pleas of Cuyahoga county March 7, 1946.
Issue was made by demurrer to the petition on the grounds that the petition does not state a cause of action and that the alleged cause of action set forth accrued more than one year prior to the filing of the petition.
The petition is in substance as follows:
The defendant, on May 5, 1943, in the presence of divers persons, spoke and published of and concerning the plaintiff that she was and, for a long time theretofore, had been asking the defendant to make a separate settlement of a judgment of more than $70,000, which defendant had against the plaintiff and her two brothers and two sisters; that the plaintiff was ignoring the rights of her brothers and sisters and endeavoring wrongfully to prejudice them; and that she was taking an unnatural attitude toward them. At the same time, and as a part of the same conversation, defendant falsely and maliciously spoke of and toward the plaintiff that she was undertaking to use trust funds in her care to pay her own personal debts and to obtain such separate settlement by using trust funds belonging to her son. All such statements were wholly false and malicious and known to be such by the defendant. As a result thereof plaintiff suffered great mental pain and anguish and her general health has been permanently impaired. Her nerves and nervous system have been injured permanently thereby. She has thereby lost the friendship and family love and consideration of her brothers and sisters. Her two brothers and two sisters completed a settlement without her participating therein, whereby each paid a sum of approximately $1,875 for a complete settlement. The payment by plaintiff of a like amount would have saved her a deficiency of about $50,000 on such judgment. Plaintiff claims to have been damaged in the sum of $50,000.
It is further averted that a previous action, upon the claim set forth and commenced within one year from May 5, 1943, was dismissed without decision on its merits March 8, 1945.
The Court of Common Pleas sustained the demurrer to the petition on the ground that it does not state a cause of action, and, plaintiff having declined to plead further, judgment was rendered in favor of the defendant.
That judgment was affirmed by the Court of Appeals.
The case is in this court pursuant to the allowance of motion to certify the record.
Mr. James V. Suhr and Messrs. Young Young, for appellant.
Mr. E.C. Phillips, Mr. G. Ray Craig and Mr. John D. Arthur, for appellee.
That the demurrer to the petition, on the ground that the action was not brought within the time limited for the commencement of such action, obviously is not well founded. The facts stated in the petition show that an action, upon the claim set forth therein, was brought within one year after the cause of action accrued, as required by Section 11225, General Code; that in such action plaintiff failed otherwise than upon the merits; and that the instant action was commenced within one year thereafter as authorized by Section 11233, General Code.
The general demurrer presents the question whether, giving the allegations in the petition every inference reasonably deducible therefrom, the plaintiff's petition states a cause of action against the defendant.
As above set forth, the first charge of slander was the statement that the plaintiff was ignoring the rights of her brothers and sisters and endeavoring wrongfully to prejudice them by asking the defendant to make a separate settlement of the judgment against her and her brothers and sisters.
The action of the plaintiff in seeking such a settlement was expressly authorized by the statutes of this state and could not have prejudiced her brothers and sisters as their rights are fully protected by such statutes.
Sections 8079 to 8084, General Code, provide the methods by which joint debtors may individually compound or compromise their joint indebtedness.
Section 8079, General Code, provides:
"When a partnership is dissolved, by mutual consent or otherwise, any partner may make a separate composition or compromise with any of its creditors. Such composition or compromise shall be a full and effectual discharge to the debtor who makes it but to him only, from all liability to the creditor with whom it is made, according to the terms thereof."
Section 8081, General Code, provides:
"Such compromise or composition with an individual member of a firm shall not discharge the other partners, nor impair the right of the creditor to proceed against members of the partnership who have not been discharged. A member of the partnership so proceeded against, may set off any demand against the creditor which could have been set off had the suit been brought against all the individuals composing the firm."
Section 8083, General Code, provides:
"Such compromise or composition of a member of a firm with a creditor of such firm shall in no wise affect the right of the other partners to call on the member who makes it for his ratable portion of such partnership debt."
Section 8084, General Code, provides:
"The foregoing provisions in reference to partners shall extend to other joint debtors, who individually may compound or compromise for their joint indebtedness, with the same effect in reference to creditors and to joint debtors of the individual so compromising, as is above provided in reference to partners."
The allegations of the petition are that the statements made by the defendant, with reference to the action of the plaintiff, were in effect simply that she was availing herself of her rights under the law, which, of course, cannot be construed as a slanderous statement.
The second statement alleged to have been made by the defendant, upon which the plaintiff bases her charge of slander, is that the plaintiff was "undertaking to use trust funds in her care to pay her own personal debts and to obtain such separate settlement upon said judgment by using trust funds belonging to her son." Although it is alleged that this was a false and malicious statement, there is no claim asserted that the use of such trust funds, if accomplished, would have been unlawful or unauthorized. There is no charge of any wrongful act, but only of a possible attempt or intent.
The petition alleging merely that defendant said that the plaintiff was attempting to use certain funds without stating that she had no right or authority to use them, or setting forth that Such attempt was for any reason wrongful, states no cause of action in slander. Under the allegations of the petition not even the elements of a crime were charged against the plaintiff or that what she intended to do was wrong. The authorities are uniform to the effect that even if the petition alleges an intent, or an attempt to commit a crime, it fails to charge a slander, for mere intention is not a violation of law. See Prosser on Torts, 799. See, also, 3 Restatement of Torts, 172, Section 571, where the rule applicable is well stated as follows:
"It is not necessary that the charge be made in technical language. It is enough that the language used imputes to the other the criminal offense. On the other hand, it is not enough merely to suggest that another is capable of committing a crime or that he would commit it if sufficient opportunity were presented. Neither is it sufficient to charge another with a criminal intention or design, if no criminal act is charged."
No cause of action having been stated in the petition in favor of the plaintiff against the defendant, the demurrer to the petition was properly sustained.
Whether the damages alleged are in their nature general or special becomes unimportant.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TURNER, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.