Opinion
Opinion, January 12, 1942.
Slander per se. Element of Mental Anguish; of Actual Malice; of Failure to Support Plea of Truth; of Defendant's Standing in the Community.
The law is well settled that words referring to one as a thief are actionable per se and that it is not necessary for the person so referred to to prove special damages or actual malice in order to recover a substantial amount. Actual malice, however, may be shown for the purpose of enhancing damages.
In an action for slander, a jury is warranted in increasing an award because of the failure of a defendant to establish by evidence a plea of truth.
In an action for slander, the fact that the defendant was a man of standing in the community was a circumstance which the jury could justly take into consideration in making their award.
Mental anguish is a proper factor to be considered by the jury.
In an action for slander the facts that the defendant first made the charge complained of in an angry manner in a place frequented by the public, repeated the charge in the same manner on other similar occasions, never withdrew the charge or qualified it, and then at the trial of the cause pleaded the truth and failed to sustain his plea, constitute evidence from which the jury could find actual malice.
The facts that the charges made by the defendant were not taken seriously by the neighbors and friends of the plaintiff and that they did not result in any very substantial damage to the reputation of the plaintiff among those who knew him or who lived in the same community must be taken into consideration in determining the amount of the award.
MOTION FOR NEW TRIAL BY DEFENDANT.
Action for slander. No serious dispute as to the salient facts. The defendant had on numerous occasions, in the presence of third persons, charged that the plaintiff had stolen the defendant's boards and had referred to him as a thief. Defendant never withdrew his charges, and at the trial of the cause pleaded their truth and failed to sustain his plea. The jury found for the plaintiff and fixed damages in the sum of $3,000. This award was held, in view of all the circumstances, to be excessive, and a new trial was ordered unless the plaintiff agreed to accept the sum of $2,000. The case fully appears in the opinion.
George A. Hutchins, Rumford,
Robert A. Smith, South Paris, for plaintiff.
Peter M. McDonald, and
Alfonso A. Alberti, Rumford, for defendant.
SITTING: STURGIS, C. J., THAXTER, HUDSON, MANSER, WORSTER, MURCHIE, JJ.
This is an action for slander. After a verdict for the plaintiff, the case is before us on a general motion for a new trial based on the usual grounds, that the verdict is against the law and the evidence, and that the damages are excessive.
A careful reading of the evidence shows no serious dispute as to the salient facts. The jury would have been warranted in finding that the defendant on several occasions and in the presence of third persons charged the plaintiff with having stolen the defendant's boards and referred to him as a thief. With a plea of the general issue, the defendant filed a brief statement setting forth that the statements made were privileged and also claiming a justification on the ground that the accusation was true. There is no basis whatsoever for the claim of privilege and the jury appears to have been fully justified in finding, as of course they did find, that the charge made by the defendant was false. The only possible ground on which the defendant can legitimately attack the verdict is that the damages assessed by the jury are excessive.
The law is well settled that words such as were here found to have been used are actionable per se and that it is not necessary for the plaintiff to prove special damages or actual malice in order to recover a substantial amount. True v. Plumley, 36 Me. 466; Davis v. Starrett, 97 Me. 568, 55 A. 516; Elms v. Crane, 118 Me. 261, 107 A. 852. Actual malice may, however, be shown for the purpose of enhancing damages. True v. Plumley, supra; Jellison v. Goodwin, 43 Me. 287, 69 Am. Dec., 62; Elms v. Crane, supra. Also a jury is warranted in increasing an award because of the failure of a defendant to establish by evidence a plea of truth. Smith v. Wyman, 16 Me. 14; Sawyer v. Hopkins, 22 Me. 268; Davis v. Starrett, supra.
This particular defendant seems to have done about all that he could do to justify a jury in awarding a substantial sum against him. He first made the charge in an angry manner in a place frequented by the public; and on other similar occasions he repeated it in the same manner. He never withdrew it or qualified it; and then at the trial of the cause pleaded the truth, and failed to sustain his plea. There was evidence from which the jury could have found actual malice. Furthermore, the defendant was a man of standing in the community, according to his own statement worth over $300,000. This was a circumstance which the jury were justified in taking into consideration in making their award. Humphries v. Parker, 52 Me. 502. The plaintiff was an old man and there is evidence that the publicity which the defendant gave to the charge caused him real mental anguish. This was a proper factor to be considered by the jury. Davis v. Starrett, supra; Sullivan v. McCafferty, 117 Me. 1, 102 A. 324; Elms v. Crane, supra. An award of exemplary damages was justified under such facts as these. Harmon v. Harmon, 61 Me. 233; Sullivan v. McCafferty, supra; Elms v. Crane, supra; Stanley v. Prince, 118 Me. 360, 108 A. 328. This is not such a case as Stacy v. Portland Publishing Co., 68 Me. 279, which holds that punitive damages cannot be recovered where a jury finds that the only damages suffered were nominal.
In spite of all these elements of aggravation, there is one fact which we feel must be taken into consideration. The two men here involved had lived in the town of Bethel for very many years. They were both well known and there is no evidence whatsoever to indicate that the violent and unjustified language used by the defendant was taken very seriously by neighbors and friends in that community or that it resulted in any very substantial damage to the reputation of the plaintiff among those who knew him or who lived there. Under all the circumstances, we feel that the award of $3,000 cannot be justified. The sum of $2,000 will, in our opinion, amply compensate the plaintiff and will, to use the words of this court in another case, Humphries v. Parker, supra, "probably make the defendant wiser for the future."
If the plaintiff remits all of the verdict in excess of $2,000 within thirty days after the rescript in this case is received, motion overruled; otherwise motion sustained, new trial granted.