Albert DeVito v. Edwarde Schwartz, et al.

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
defendant, Albert DeVito, 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 Club1 for assault and battery. The complaint
alleged that an altercation 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 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
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 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.’’

In addition to the jury instructions, the court presented
the jury with interrogatories. Regarding the third
count of the counterclaim, question five of the interrogatories
asked the jury: ‘‘Did the claimant prove, by a fair
preponderance of the evidence, that the counterclaim
defendant, Mr. DeVito, ‘slandered’ him?’’ The jury
responded, ‘‘yes.’’ Question six of the interrogatories
asked: ‘‘Did the claimant prove, by a fair preponderance
of the evidence, that the slanderous statements were
published by Mr. DeVito, that is, did the slander come
to the ears of one or more persons who understood
the defamatory material?’’ The jury responded, ‘‘yes.’’
Question seven of the interrogatories asked: ‘‘Did the
counterclaim plaintiff, Edward Schwartz, prove, by a
fair preponderance of the evidence, that the counterclaim
defendant, Mr. DeVito, acted wilfully, wantonly
or maliciously in disregard of the rights of Mr.
Schwartz?’’ The jury responded, ‘‘yes.’’ Question eight
of the interrogatories asked: ‘‘Did the claimant prove,
by a fair preponderance of the evidence, that this wilful,
wanton and malicious misconduct on the part of the counterclaim defendant was a proximate cause of, that
is, a substantial factor in causing, the injuries or damage
alleged by Mr. Schwartz in his counterclaim?’’ The jury
responded, ‘‘no.’’

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Affirmed

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