
    Floraday v. Motometer Gauge & Equipment Corp. et al.
    (Decided July 23, 1934.)
    
      Mr. George W. Ritter, for plaintiff in error.
    
      Messrs. Doyle <& Lewis, for defendants in error.
   Lloyd, J.

Burton S. Floraday, as plaintiff, commenced an action in the Court of Common Pleas against Motometer Gauge & Equipment Corporation, Royce G. Martin, and Walter V. Flood, as defendants, to recover $50,000 damages for alleged slander. His petition alleges incorporation under the laws of Delaware of the Motometer Gauge & Equipment Corporation, that Martin was and is its president, that Flood was and is its treasurer, and then pleads:

“That on or about the first day of October, 1932, the defendants entered into a conspiracy to take over into the business of the defendant, Motometer Gauge & Equipment Corporation, the business, molds, tools and other property of Graff, Floraday, Eckel, Inc., an Ohio corporation, of which corporation plaintiff was and now is a shareholder.

“That in pursuance of said conspiracy the defendant Martin, on or about June 16, 1933, while under oath testifying in an action brought by Motometer Gauge & Equipment Corporation vs. Graff, Floraday, Eckel, Inc., which action was being heard before a Special Master appointed by the United States District Court for the Northern District of Ohio, Western Division, maliciously and falsely stated of and concerning the plaintiff ‘you cannot tell the truth’; that said statement of said Martin is wholly false and untrue.

‘ ‘ That plaintiff was greatly humiliated and suffered public disgrace by reason of said statement of defendant, Martin.

“That by reason thereof plaintiff has been damaged in the sum of Fifty Thousand Dollars,” for which he prays judgment.

Demurrers were filed by the several defendants to this petition, the grounds thereof being:

“1. There is a misjoinder of parties defendant;

“2. That separate causes of action against several defendants are improperly joined, and

“3. That the petition does not state facts which show a cause of action.”

These demurrers were sustained by the Court of Common Pleas, and Floraday not desiring to plead further his petition was dismissed and judgment rendered against him for costs. From this judgment error is prosecuted to this court.

In deciding the question thus presented we shall consider only the third ground of the demurrer. It is contended that Martin, a witness, while under oath, in saying of Floraday “you cannot tell the truth,” committed perjury, an indictable offense involving moral turpitude, and that these words so spoken of Floraday necessarily injured him in his trade or occupation and are slanderous per se. There is nothing in the petition to indicate that the alleged slanderous words were spoken in relation to any material fact in issue in the action wherein Martin was a witness, nor is there any allegation in the petition as to Floraday having any business or being engaged in any trade or occupation except as a shareholder in Floraday-Eckel, Inc., an Ohio corporation. It can hardly be claimed that being a shareholder or stockholder in an Ohio corporation constitutes an individual trade or occupation, and if the statement accredited to Martin was material and relevant, or, if construing the petition liberally it will be presumed to have been so, it was privileged. Taplin-Rice-Clerkin Co. v. Hower, 124 Ohio St., 123, 177 N. E., 203, 81 A. L. R., 1117.

We conclude that the words spoken of Floraday under the facts and circumstances alleged in his petition are not actionable per se and did not cause any loss to him by way of special damages.

The judgment of the Court of Common Pleas is therefore affirmed.

Judgment affirmed.

Crow, J., of the Third Appellate District, sitting by designation, concurs.

Williams, J., not participating.  