Home ANTONIO SOUSA & another vs. JOHN K. DAVENPORT, trustee, & others.

3 Mass. App. Ct. 715

February 28, 1975

This is a defamation action consisting of three counts in libel and one (count 4) in slander. On June 27, 1974, the judge sustained the defendants' demurrer to the declaration as a whole and to each count separately and on July 9 dismissed the action. 1. The demurrer was properly sustained as to the libel counts. The words alleged "cannot be reasonably understood in a defamatory sense." Muchnick v. Post Publishing Co. 332 Mass. 304 , 305 (1955). In particular, we are directed to no authority which supports the proposition that allegations simply of an individual's poverty or unemployment are actionable. 2. The count in slander alleges the use of words which impute a crime (G. L. c. 272, Section 18) and thus are defamatory per se. Miller v. Parish, 8 Pick. 384 (1829). Brown v. Nickerson, 5 Gray 1 (1855). See Lynch v. Lyons, 303 Mass. 116 , 118-119 (1939), and Stone v. Essex County Newspapers, 365 Mass. 246 , 249-250 (1974). No formal defect is specifically pointed out. G. L. c. 231, Section 18, as in effect prior to St. 1973, c. 1114, Section 160. There was error in sustaining the demurrer to that count. 3. The judge was warranted in making his implied finding that the refusal by the plaintiffs' attorney to permit one of the plaintiffs to answer certain questions material to the slander count was without substantial justification in the absence of a proper invocation of privilege by the plaintiffs. The award of reasonable expenses caused by the additional deposition hearing and of a counsel fee of $50 was warranted under the third sentence of Section 8 (a) of Rule 3:15 of the Supreme Judicial Court, 351 Mass. 810 (1967). See Mass.R.Civ.P. 37 (4), 365 Mass. 798 (1974). See also Hulvat v. Royal Indem. Co. 277 F. Supp. 769, 771 (E. D. Wis. 1967). 4. The libel counts were properly dismissed with prejudice. That the words published are as matter of law not defamatory is an adjudication on the merits. See Mass.R.Civ.P. 41 (b) (3), 365 Mass. 805 (1974), and Marshall v. National Police Gazette Corp. 195 F. 2d 993, 995 (8th Cir. 1952). Cf. Sullivan v. Farr, 2 Mass. App. Ct. 815 (1974). The order under Rule 3:15 is affirmed. The order sustaining the demurrer and the dismissal of the action are affirmed as to counts 1, 2, and 3 but are reversed as to count 4. The case is to stand for trial on count 4.

So ordered.

Home JOHN MORE'S CASE.

3 Mass. App. Ct. 715

February 28, 1975

The sole issue presented by this appeal is whether the evidence supported the finding of average weekly wage as defined by G. L. c. 152, Section 1 (1). We hold that there was no error in the decree entered in the Superior Court in accordance with the decision of the reviewing board. The amount of the average

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weekly wage of an employee is a question of fact. Weir's Case, 252 Mass. 236 , 238 (1925). Testimony (including that of the claimant and fellow employee engaged in the same kind of work) supportive of the board's finding of an average weekly wage of $125 (see Galloway's Case, 354 Mass. 427 , 431 [1968]; compare Morris's Case, 354 Mass. 420 , 425-426 [1968]) was admitted without objection before the single member. That evidence was relevant and had probative force. Laskowski v. Manning, 325 Mass. 393 , 399 (1950). Where, as here, there was evidence which supported the board's findings, such findings are final. Sabulis's Case, 334 Mass. 709 (1956). Cummings's Case, 2 Mass. App. Ct. 849 (1974). The decree is affirmed. Costs of appeal are to be determined by a Justice of this court.

So ordered.