Docket No. 2,080.
Decided September 19, 1967. Leave to appeal granted December 12, 1967, and case remanded with directions. 379 Mich. 791.
Appeal from Ingham; Coash (Louis E.), J. Submitted Division 2 February 9, 1967, at Lansing. (Docket No. 2,080.) Decided September 19, 1967. Leave to appeal granted December 12, 1967, and case remanded with directions. 379 Mich. 791.
Complaint by Benjamin E. Swagman against Swift and Company, an Illinois corporation, doing business in Michigan as Swift and Company Ice Cream Division, for damages as the result of alleged slander and for mental suffering. Summary judgment for defendant. Plaintiff appeals. Affirmed.
Lee G. Sheffer ( Larry D. Fowler, of counsel), for plaintiff.
Paul C. Younger, for defendant.
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. 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. However, the Mains Case also states at p 181:
"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, is directly in point with the instant case and is therefore quoted extensively:
"It is common in all actions for libel and slander for the plaintiff to allege not only his good name, et cetera, as a citizen, but also to allege his business or profession; and the mere fact that such occupation or business is stated in the declaration is not sufficient to justify the inference that the libelous or slanderous article was uttered with reference to his particular business or profession, especially in the absence of any allegation that he has suffered pecuniary loss in his profession or business, but has only suffered loss in his good name, fame, and credit. What is there in such a declaration to notify a defendant that plaintiff claims injury to his profession or business, or that he would show pecuniary loss without alleging any, or that a jury should be turned loose in a realm of speculation to guess what loss in that direction plaintiff has sustained? * * *
"All charges of disreputable or criminal conduct tend to injure every man in his profession, trade, or occupation; but the law does not permit recovery therefor unless the words be spoken of him in regard to such profession, trade, or occupation, and loss is alleged and proved. Every such plaintiff can recover for injury to feelings and damage to his reputation. If he desires to go beyond this, it is a wholesome rule to require him to connect the libelous charge by the proper colloquium with such profession, trade, or occupation, and to allege special damages."
Counts 4 and 5 contain no allegation that the words complained of were spoken of plaintiff in relation to his occupation. Therefore, they do not constitute slander per se and are not actionable without a showing of special damages. Since the plaintiff has not alleged any special damage, his complaint in respect to counts 4 and 5 must fail. The trial court correctly granted summary judgment as to these counts.
Plaintiff also contends that count 7 sets forth written statements made by defendant which are sufficient to support a cause of action for "psychological injury." In essence, these statements allege that plaintiff improperly performed his job and failed to follow instructions. As a matter of law, such statements are inadequate to support a claim for mental suffering and the trial court correctly granted defendant's motion for summary judgment.
Judgment affirmed. Costs to appellee.
HOLBROOK, P.J., and FITZGERALD, J., concurred.