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Stitt v. Lyon

Superior Court of Delaware, New Castle County

February 25, 1954

STITT
v.
LYON et al.

Action by a school teacher against a superintendent of schools and members of a Board of Education for libel. On defendant's motion to dismiss the complaint, the Superior Court, Herrmann, J., held that an allegation in the complaint that plaintiff, by reason of publication and circulation of a letter containing libelous statements from defendants to plaintiff, was greatly injured in his good name and reputation, thereby affecting his professional standing, and was unable to secure employment as a teacher for a specified school year, was a sufficiently specific allegation of special damage under the Superior Court's civil rule.

Motion denied.

[48 Del. 366] Action for libel. Upon the defendants' motion to dismiss the complaint. Motion denied.

Page 333

Thomas Herlihy, Jr., Wilmington, for plaintiff.

David F. Anderson (of Berl, Potter & Anderson), Wilmington, for defendants.

HERRMANN, Judge.

The complaint is based primarily upon the contents of a letter written to the plaintiff, a school teacher, by the defendants, one of whom was Superintendent of Schools and the others being members of the Board of Education having supervision of the school in which the plaintiff was employed. In the complaint, the plaintiff alleges damages as follows:

‘ By reason of the publication and circulation of the aforesaid letter and statements, the plaintiff has been greatly injured in his good name and reputation and his professional standing thereby affected, and has been unable to secure employment as a teacher for the school year beginning in September, 1953.’

The defendants move to dismiss the complaint, under Civil Rule 12(b), Del.C.Ann., on the ground that the complaint fails to state a claim upon which relief can be granted. The motion is founded upon the contention that the words used in the letter were not libelous per se and that, therefore, the plaintiff may not recover because the complaint does not contain a sufficiently specific allegation of special damage.

Assuming, without deciding, that libel per se is not shown by the complaint, I think that the plaintiff has adequately pleaded special damage under our Civil Rules.

The defendants rely upon Snavely v. Booth, 6 W.W.Harr. 378, 176 A. 649, 656, in which this Court considered an allegation that, by reason of a defamatory letter, the plaintiff was barred and prevented from obtaining similar employment elsewhere. The Court there held that this allegation of special damage was insufficient because special damage must be alleged ‘ with such particularity as to inform precisely the defendant of [48 Del. 367] the case he is called upon to meet.’ The Court there indicated that the requisite particularity demanded an averment of specific instances of failure to obtain similar employment elsewhere by reason of the libelous publication. The Snavely case was folowed in McDonough v. A. S. Beck Shoe Corp., 1 Terry 318, 10 A.2d 510, 514, upon which the defendants here also rely.

The Snavely case and the McDonough case were decided before 1948 when our present Civil Rules became effective. The rulings in those cases are in accord with the general rule of common-law pleading that, in order to prevent surprise at trial, special damage must be alleged with such certainty as to afford fair notice and opportunity to prepare for trial. Compare Hollenbacher v. Bryant, 3 Terry 242, 30 A.2d 561.

Of course, the present Civil Rules of this Court have changed the function and purpose of pleading. The present Rules contemplate notice pleading rather than the fully informative common-law pleading which prevailed in this jurisdiction prior to 1948. By way of discovery, a defendant may now obtain a complete disclosure as to the plaintiff's cause of action. See Klein v. Sunbeam Corp., Del., 94 A.2d 385, 391.

Civil Rule 9(g) requires that items of special damage must be specifically stated. This Rule, like Rule 9(b) which requires particularity in alleging negligence and fraud, is not intended to demand the technical requirements of common-law pleading. Compare Barni v. Kutner, 6 Terry 550, 76 A.2d 801, 807. The particularity required by Rule 9(g) is met when the defendant is put on notice as to the general nature of the special damage being ...


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