APPEAL from an order of the Supreme Court at Special Term (FRANK, J.), entered December 2, 1954, in New York County, which denied a motion for a dismissal of the complaint, made by defendant on the ground that it failed to state a cause of action.
Charles H. Tuttle of counsel (Minot & Zasloff,
attorneys), for appellant.
William Canton of counsel (Robert Leon Horn,
attorney), for respondent.
The defendant's motion to dismiss the complaint has been denied and the legal sufficiency thereof is presented upon this appeal. The action is for slander and it is alleged that the president of the defendant corporation in the presence of certain employees uttered of and concerning the plaintiff the words 'Communist. You are a communist' two or three times. No facts are alleged as to the circumstances under which the alleged defamatory words were spoken. In other words, no extrinsic facts are alleged and we have for consideration only these words standing alone.
The complaint contains no allegation of special damage and the question presented is whether or not the words thus spoken are slanderous per se. In our search for an answer to the question, we are required to consider two groups of words that have been held to be slanderous per se. The first group consists of words spoken that charge a person with a punishable crime and the second group consists of words spoken which tend to injure a person in his trade, occupation or profession.
We cannot agree with the contention of the plaintiff that to call one a communist is to charge him with a punishable crime. It is unnecessary to explore at length the argument of the respondent that the words here spoken imputed a violation of the Smith Act (U. S. Code, tit. 18, § § 2384, 2385). Its inapplicability is shown by the statement in
Dennis v. United States (341 U.S. 494, 502) that 'The very language
of the Smith Act negates the interpretation which petitioners would have us
impose on that Act. It is directed at advocacy, not discussion.' The contention of the respondent is further weakened by an examination of the charge of the Trial Judge in the same case. There, in response to defendant's request, it was charged 'that you may not find any of the defendants guilty merely by reason of the fact that he is a member of the Communist Party of the United States of America, no matter what you find were the principles and doctrines which were taught or advocated by that Party during the period defined in the indictment.' (United States v. Foster, 9 F. R. D. 367, 392.) The statute itself requires that the member know the purposes of the 'society, group or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence'. (U. S. Code, tit. 18, § 2385.)
The complaint contains a series of innuendos pleading the meaning of the alleged defamatory words. Plaintiff alleges that the speaker intended to charge and, in fact, did charge him with knowledge and advocacy of communist principles. Innuendo,
however, cannot extend the alleged slanderous words by an imagination of a meaning not reasonably apparent from the words themselves. (Brown
v. Moore, 90 Hun 169.) Nor can innuendo give to the words an actionable meaning if there are no other words or extrinsic facts pleaded from which such an actionable meaning can reasonably be inferred.
(Have Meyer v. Fuller, 60 How. Prac. 316.) In the absence of other words or extrinsic facts, plaintiff may not extend the words 'You are a Communist' through innuendo to mean that the speaker intended to and did charge him with being 'a believer and advocator of Communism.' Innuendo may help to explain, but it cannot enlarge, the meaning of words. (Cf. Stevens v. Whelan,
234 App.Div. 118.)
If the complaint is to be sustained, and so Special Term apparently concluded, it must be upon a finding that the words spoken tended to injure plaintiff in his profession and upon the further finding, which Special Term apparently did not consider, that the words were spoken of plaintiff in his profession. We turn to the complaint and there find allegations that the plaintiff had been employed by the defendant for twelve years as chief engineer. It is further alleged 'That the said plaintiff is an engineer by profession, and during his career has been working for a defense plant which is engaged in the manufacture of tools and implements for the Government of the U.S. and on contracts with the Government for secret weapons of war and defense for our Government and other concerns which had contracts with our Government, and, as a result of the false and defamatory words concerning the plaintiff, the plaintiff has been and will be irreparably damaged in his profession and vocation.'
When one turns to the decisions passing upon words spoken of another tending to injure him in his trade, occupation, business or profession as being slanderous per se, one finds the boundary lines indistinctly marked and many conflicting decisions impossible of reconciliation.
Curiously, two of the landmark cases relating to the law of slander were
libel actions. In each of these (Sanderson v. Caldwell, 45 N.Y. 398; Moore v. Francis,
121 N.Y. 199) the court in a general discussion of the law of libel and slander made passing remarks as to the
action ability of defamatory spoken words. In the Moore case, it was said that 'The principle is clearly stated by BAYLEY, J., in
WHITTAKER v. BRADLEY (7 D. & R. 649): ...