MILTON C. KLING vs. WALTER F. LYONS & others.

WILKINS, C.J. This action of tort is described in the plaintiff's brief as "for tortious injury to professional reputation and consequent damage" and in the defendants' brief as for libel.

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The declaration in four identical counts, one against each defendant, [Note p155-1] alleges that the defendant "falsely and maliciously" caused to be printed and published in The Evening Chronicle, a North Attleborough newspaper, an article concerning the plaintiff in which he is stated to have resigned his position as cashier of The Manufacturers National Bank of North Attleborough; that the article was untrue in that the plaintiff, as the defendant well knew, had not resigned; that the article was defamatory and injured the plaintiff in his office and profession in that when the article was published it was known to a considerable and respectable class of the community that the plaintiff was on his normal vacation, had indicated no intention of resigning, and had not sought employment elsewhere; that the said class believed that the plaintiff would not resign his position voluntarily and to them the reported resignation implied that the plaintiff had been discharged for dereliction of duty; that the plaintiff had always performed his duties in a capable and honest manner; and that the publication injured the plaintiff's reputation, injured him in his office or profession, impaired his earning capacity, held him up to contempt, and caused him grievous mental suffering and humiliation.

Substantially identical demurrers were filed by the defendants to the respective counts concerning them. The grounds were legal insufficiency; that the statements were not libellous or defamatory; that they had no tendency to hold the plaintiff up to hatred, ridicule or contempt, and were not reasonably capable of any defamatory meaning; and that the statements did not by their natural import or in connection with the facts alleged reflect adversely upon the plaintiff either as an individual or in his business or profession. The demurrers were sustained, and the plaintiff appealed.

The plaintiff rightly concedes that the publication is not reasonably capable of any defamatory meaning; and that to report merely that a person has resigned his position, or

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that his employment has terminated, is not defamatory. See Ricci v. Crowley, 333 Mass. 26, 27; Boston Nutrition Soc. Inc. v. Stare, 342 Mass. 439, 442; Jack's Cookie Co. v. Brooks, 227 F. 2d 935, 937 (4th Cir.), cert. den. sub nom. Brooks v. Jack's Cookie Co. 351 U.S. 908; Nichols v. Item Publishers, Inc. 309 N. Y. 596, 601; Ratzel v. New York News Publishing Co. 67 App. Div. (N. Y.) 598, 600-601; Gartmen v. Hedgpeth, 138 Texas, 73, 78; Mulligan v. Cole, 10 Q. B. D. 549, 550-551; 138 A. L. R. 671; 53 C. J. S., Libel and Slander, Section 43.

The plaintiff's brief summarizes his case as follows: The defendants, motivated by malice toward the plaintiff, knowingly caused a false publication to be made which resulted in injury to the plaintiff's reputation and impairment of his earning capacity. "This is not a case involving inadvertent mistake or negligence, but of deliberate intent to injure the plaintiff through a false publication known to be false."

Unless the words "falsely and maliciously" include an allegation of intent to injure by a false publication, there is no allegation of intent. If we assume that these words do include an allegation of an intentional injury of some kind, the crux of the declaration is that the false announcement of the resignation "implied" to a considerable and respectable class of the community that he had been discharged for a failure in duty. We think that this is not a reasonable implication, particularly to a class who knew the plaintiff well enough to know that he was on his regular vacation, had indicated no intention of resigning or of not returning to his position as cashier, and had not sought other employment.

The plaintiff relies upon Restatement: Torts, Sections 870, 873. [Note p156-1] The present case does not make it necessary that we

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determine the extent to which any principles stated in those sections should be adopted as the law of this Commonwealth, because the allegations of the declaration do not fall within them. Owens v. Mench, 81 D. & C. (Pa.) 314, 316-317. In the plaintiff's argument reliance is now placed upon injury to reputation and impairment of earning capacity. On the allegations there is nothing to show that the defendants should have realized that this false report could cause an impairment of earning capacity. McGurk v. Cronenwett, 199 Mass. 457. Likewise, in view of the concession that a mere report of a resignation cannot be defamatory, there is no allegation which indicates how this particular report could or did cause injury to reputation. It may be noted also that there are no allegations that either result was specifically intended, should that be a material consideration. Dooling v. Budget Publishing Co. 144 Mass. 258.

In Morasse v. Brochu, 151 Mass. 567, the intended injury to a physician in his profession was "the probable and natural result of the speaking of the words" (p. 574). In two New York lower court cases, to which we are referred by the plaintiff, the damage due to the intentionally false statement was clearly to be anticipated. Gale v. Ryan, 263 App. Div. (N. Y.) 76. Schauder v. Weiss, 88 N. Y. S. 2d 317, affd. 276 App. Div. (N. Y.) 967.

Orders sustaining demurrers affirmed.

Judgment for the defendants.