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DeVito v. Schwartz

Appellate Court of Connecticut

April 6, 2001, Submitted on Briefs ; October 16, 2001, Officially Released

(AC 20997)


 [*229]   [**378]  LAVERY, C. J. In this defamation action, the counterclaim plaintiff, Edward Schwartz, appeals from the judgment rendered by trial court after the court denied his motion to set aside the verdict. On appeal, Schwartz claims that the court improperly denied his motion because the defamatory statements made by the counterclaim  [*230]  defendant, Albert DeVito,  [***2]  were slanderous per se, and, therefore, he was entitled to at least some damages. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In November, 1996, DeVito initiated an action against Schwartz, Francis Dattalo and the 709 Sports Club 1 for assault and battery. The complaint alleged that an altercation  [**379]  took place between DeVito, Schwartz and Dattalo in August, 1996, at the 709 Sports Club at 34 Martin Luther King Boulevard in Norwalk. 2 In February, 1997, Schwartz filed an answer, special defenses and a counterclaim. The third count of the counterclaim, which is the only count relevant to this appeal, alleged that DeVito, in front of others, called Schwartz a "crook" and accused him of stealing money from the 709 Sports Club. Schwartz further claimed that those statements were false and were made wilfully, wantonly and maliciously, and that, as a result of the slander, he suffered embarrassment, humiliation and injury to his reputation. Schwartz sought compensatory and punitive damages for his injuries. The court rendered a judgment of nonsuit in the assault and battery action in favor of Schwartz on July 12, 1998. A [***3]  jury trial on the counterclaim began in June, 2000, during which the court granted Schwartz's motion to amend the counterclaim to add the word "thief."

Following the parties' closing arguments, the court charged the jury on slander per se and damages as follows: "Slander per se. An example of a slander per se is charging the commission of a crime involving  [*231]  moral turpitude. Moral turpitude in turn involves an act of inherent baseness, vileness or depravity in the private and social duties which man does to his fellow [***4]  man or to society in general, contrary to the accepted rule of right and duty between a person and the law. An oral statement that one has stolen something has been held by our courts to be actionable per se. In other words, accusing someone of theft is slanderous per se. When words are slanderous per se, as I said, a claimant is not required to show special, actual or pecuniary damages. The law conclusively presumes the existence of injury to the claimant's reputation. He is not required to plead or to prove it."

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66 Conn. App. 228 *; 784 A.2d 376 **; 2001 Conn. App. LEXIS 493 ***


Prior History:  [***1]  Action to recover damages for personal injuries sustained by the plaintiff as a result of the defendants' alleged assault and battery, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the named defendant filed a counterclaim; thereafter, the court, Lewis, J., granted the defendants' motion for a nonsuit; subsequently, the counterclaim was tried to the jury before Lewis, J.; verdict for the plaintiff on the counterclaim; thereafter, the court denied the named defendant's motion to set aside the verdict and rendered judgment for the plaintiff on the counterclaim, from which the named defendant appealed to this court.

Disposition: Affirmed.


damages, counterclaim, defamation, slanderous, reputation, nominal damages, interrogatories, defamatory, punitive damages, claimant, special damage, responded, general damages, fair preponderance, slander per se, malicious

Civil Procedure, Trials, Judgment as Matter of Law, Directed Verdicts, General Overview, Judgments, Relief From Judgments, Appeals, Standards of Review, Torts, Remedies, Damages, Types of Damages, Compensatory Damages, Pain & Suffering, Emotional Distress, Types of Losses, Intentional Torts, Defamation, Libel, Slander, Defenses, Fair Comment & Opinion, Defamation Per Se, Criminal Law & Procedure, Theft & Related Offenses, Larceny & Theft, Evidence, Inferences & Presumptions, Damages, Punitive Damages, Punitive Damages, Admissibility, Character Evidence, Juries & Jurors, Province of Court & Jury, Weight of Evidence, Jury Trials, Province of Court & Jury, Procedural Matters, Motions for New Trials