Moore v. Bailey, 81-26-II

• Decision Date: 18 September 1981
• Docket Number: No. 81-26-II,81-26-II
• Citation: 628 S.W.2d 431
• Parties: R. Lynn MOORE, Plaintiff-Appellee, v. Aaron L. BAILEY, Defendant-Appellant.
• Court: Tennessee Court of Appeals

Page 431

628 S.W.2d 431

R. Lynn MOORE, Plaintiff-Appellee, v. Aaron L. BAILEY, Defendant-Appellant.

No. 81-26-II.

Court of Appeals of Tennessee, Middle Section at Nashville.

Sept. 18, 1981.

Permission to Appeal Denied by Supreme Court Nov. 30, 1981.

Donald J. Ray, Tullahoma, for defendant-appellant.

Clinton H. Swafford, Winchester, for plaintiff-appellee.

OPINION

CONNER, Judge.

Two issues presented by this appeal in this defamation action are whether there was material evidence to support the jury's finding of actual malice and its award of compensatory and punitive damages. Also raised is whether statements made to those who are investigating purported misconduct by a public official are part of a quasi-judicial function to such an extent that they are absolutely privileged.

The plaintiff-appellee, R. Lynn Moore, ¹ the Franklin County environmentalist for the Tennessee Department of Public Health, instituted a suit for slander on February 1, 1980. The proof showed that the defendant, Aaron L. Bailey, had been making derogatory statements about the plaintiff for more than ten years. Plaintiff pleaded and testified that Bailey had "expressed malice and hatred toward him on many occasions" during that period and that defendant has stated on numerous occasions "that he would get the plaintiff in any way he could."

The actual utterances in issue here began on August 3, 1979, when the defendant contacted the state inspector general alleging criminal and civil misconduct on the part of the plaintiff. The defendant accused the plaintiff of misappropriation of state and county funds; of using state and county vehicles, property and employees for personal business; and of various instances of criminal conduct, e.g., taking kick-backs and dealing in illegal drugs. As a result of the defendant's first contact, there was an investigation conducted by Richard Reed, II, of the state department of public health. At that meeting the defendant related to Mr. Reed the information concerning all of the alleged improprieties.

The most crucial of the alleged defamatory statements were made to Dan Pickle, Moore's supervisor, on January 3, 1980. The remarks fall into eight categories: (1) Bailey stated that he had personally seen the county rabies control truck (operated under the supervision of the plaintiff) come to plaintiff's house on several occasions. Behind the truck was a trailer containing a lawn mower. The truck was driven by a county employee who, upon arrival, would mow his yard. (2) The defendant stated that he had been informed that Moore bought a 30.06 rifle purportedly for use in the rabies control program, but in reality for personal use in hunting deer. (3) The defendant stated that Mrs. Lon A. Tucker, a former employee, reported to him that she had seen a large number of doves in the freezer at the dog pound, which is also operated under the supervision of the plaintiff. (4) Bailey reported that Mrs. Tucker had also shown him some check stubs of her husband's. She purportedly alleged that these stubs indicated that her husband was paid for six or seven months as a rabies control officer when he actually did not work. The defendant further stated Mrs. Tucker had said that on one occasion her husband had shown a check to Moore who advised him to go ahead and cash it and say nothing. (5) The defendant reported that he had reliable information that marijuana was being sold at the dog pound. He further said that his nephew, who worked for the sheriff, had knowledge that Moore did use and had sold marijuana. (6) Bailey stated that Moore applied double standards in the performance of his duties with the health department, that he was unfit to work for the government and should be fired. (7) The defendant stated that he had been told that the county rabies control truck had been used to haul everything imaginable, including hay, hogs and the like. (8) He stated that Moore served on the county board of sanitation and that the board had entered into many illegal contracts concerning collection and disposal of solid waste.

Plaintiff vehemently denied the truth of any of these charges, averring in his complaint that "all of the allegations of misconduct and criminal conduct made by the defendant were false and untrue." Plaintiff further alleged that the allegations against him constituted slander per se and "that the allegations were made by the defendant for the express, malicious purpose of doing him as much damage as he could."

The case was tried twice with the first trial resulting in a deadlocked jury. After the trial judge denied Bailey's motion to dismiss at the conclusion of Moore's proof on the basis of "no proof of actual malice, special damages, and that privilege was a defense," the second trial jury found the defendant guilty of slander. It fixed compensatory damages at $1,000.00 and punitive damages at $5,000.00. The defendant appealed.

Our review is pursuant to T.R.A.P. 13(d). ² We must not weigh the evidence to determine the preponderance thereof, nor weigh the credibility of witnesses. Rather, our review is limited to a determination of whether there is any material evidence to support the verdict. In so doing, we must take the strongest legitimate view of all of the evidence to uphold the verdict, assume the truth of all that tends to support it and discard all to the contrary. We are bound to allow all reasonable inferences to sustain the verdict, and if there is indeed any material evidence to support it, we must affirm. See also Truan v. Smith, 578 S.W.2d 73 (Tenn.1979); Poe v. Atlantic Coast Line Railroad Co., 205 Tenn. 276, 326 S.W.2d 461 (Tenn.1959).

First, the defendant claims that there is no proof in the record of actual malice, the only evidence presented being of "common-law malice" and thus, improper.

Since the plaintiff is a public official, see Press, Inc. v. Verran, 569 S.W.2d 435 (Tenn.1978), the plaintiff must show that the defendant acted with actual malice. The definition of actual malice was succinctly stated by the Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706 (1964).

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice"-that is, with knowledge that it was false or with reckless disregard of whether it was false or not. (Emphasis in original.)

Accord, see Memphis Publishing Co. v. Nichols, 569 S.W.2d 412, 415 (Tenn.1978). Cf. RESTATEMENT (SECOND) OF TORTS, § 580A (1977).

More specifically, the defendant asserts that proof of "common law malice," or past history of defendant's wrongful actions toward plaintiff, is irrelevant, inadmissible, and prejudicial in a slander case. He cites Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), and Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), for the principle that ill will or bad motives are not elements of the New York Times, supra, standard and concludes that common law malice no longer has a place in modern slander cases.

However, to prove actual malice, there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication, and that publishing, with such doubt, shows reckless disregard for truth or falsity and demonstrates actual malice. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267 (1968).

We conclude that the evidence of the past history of bad blood between the parties and the defendant's history of ill will and hostile feelings toward plaintiff for many years is competent, relevant and material. We hold such evidence admissible on the question of whether the alleged slanderous remarks sued upon were either known by defendant to be false or made with reckless disregard for the truth. We further hold that there is proof in the record from which a jury could properly conclude that the defendant acted with actual malice or reckless disregard for the truth in making the statements described herein about the plaintiff.

In his testimony regarding his investigation, Dan Pickle revealed that the defendant had actual doubts about the truth of his previous statements about the plaintiff.

Q. (by Mr. Swafford) After this discussion that he had with you, did he ask you any questions about what you thought would be the results of these allegations?

A. (by Mr. Pickle) Yes. He wondered if these allegations were found to be true. He wanted to know if Lynn Moore would be fired. In fact, he stated that he believed that if these allegations were found to be true, that Lynn Moore ought to serve some time for these things. (Emphasis supplied.)

From these statements and others, especially relating to the length and breadth of Bailey's contempt for Moore, the jury could certainly find that Bailey entertained "serious doubts" as to the truth of what he was saying about Moore. Despite the fact that the defendant "wondered" if the allegations were true, he accumulated every bit of information obtainable that seemed to be derogatory about the plaintiff and persisted in repeating it to almost anyone who would listen. If defendant's view of the admissibility of evidence of previous defamatory statements and hostile activities toward plaintiff was held to be the law in this state, few, if any plaintiffs who are...