Dyer v. MacDougall

201 F.2d 265 (2d Cir. 1952)



The jury may, and indeed they should, take into consideration the whole nexus of sense impressions which they get from a witness. Moreover, such demeanor evidence may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies. 


Plaintiff sued defendants for two counts of libel and slander. Defendants submitted affidavits in which they denied the utterance of the slanders attributed to them. The trial court gave plaintiff the opportunity to depose defendants. However, plaintiff chose not to do so. The trial court granted defendants' motion for summary judgment. On reargument, the court again decided that the slander counts should be dismissed. 


Was the summary judgment proper?




The court held that summary judgment was proper because defendants proved that plaintiff would not have enough evidence to raise a genuine issue of fact to go to the jury on the issue of slander. Plaintiff's wife's affidavit was not admissible because it contained hearsay, and the excited utterance exception did not apply because the interval between the alleged exciting event and utterance could have been as long as two months. Plaintiff's only other witnesses by whom he could prove slander were defendants, who would deny the slanders were uttered.

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