Slander, Publication. In an action against the proprietor of a department store for slander, in accusing the plaintiff of the crime of larceny, there was evidence tending to show that the plaintiff, who could understand or talk little if any English, was addressed in English by a clerk, when no one else was within hearing, and was asked "if he didn't want to pay for what he had taken," that, the plaintiff not understanding, the clerk called a Greek clerk to whom he said in English, referring to the plaintiff, "I think he has taken a handkerchief . . . will you speak to him?" that the Greek clerk said to the plaintiff in Greek, "This gentleman here accuse you that you steal a handkerchief." The plaintiff testified that there "were fifty or sixty men around there." There was no evidence that any one other than the plaintiff and the Greek clerk understood the Greek language. Held, that, assuming, without deciding it, that the words spoken could have been found to have been accusations of larceny, there was no evidence warranting a finding of their publication.
Defamatory words, spoken in a foreign language in the presence of third persons, are not actionable if they are comprehensible only to the person using them and the person accused.
LORING, J.
We do not find it necessary to decide whether the two statements relied on by the plaintiff could have been found to be accusations of larceny. If it be assumed that such a finding could have been made, the judge was right in directing the jury to find a verdict for the defendant because there was no evidence of publication of either of them. See Downs v. Hawley, 112 Mass. 237; Rumney v. Worthley, 186 Mass. 144. There was no evidence that anybody but the plaintiff was present when Carrier spoke to the plaintiff in English. There was no publication of this statement made in English, because on the evidence the words could not have been heard by any one but the plaintiff. Shefill v. Van Deusen, 13 Gray, 304.
Nor was there any evidence of publication of the Greek words spoken by Miralos. For, although there was evidence that they were spoken in the presence of others, there was no evidence that any one could understand them but the plaintiff. Sheffill v. Van Deusen, ubi supra, at page 305, and cases cited.
Under these circumstances we do not have to consider the question whether Carrier and Miralos could have been found to be acting within the scope of their employment by the defendant in making the two statements relied upon, as to which see Kane v. Boston Mutual Life Ins. Co. 200 Mass. 265, 269.
Exceptions overruled.