Allred v. Cook

• Decision Date: 11 January 1979
• Docket Number: No. 15688,15688
• Citation: 590 P.2d 318
• Parties: Royal Nordell ALLRED, Plaintiff and Appellant, v. Mark E. COOK, Bryant Madsen, Kenneth R. Strate and Tom Mower, Defendants and Respondents.
• Court: Utah Supreme Court

Page 318

590 P.2d 318

Royal Nordell ALLRED, Plaintiff and Appellant, v. Mark E. COOK, Bryant Madsen, Kenneth R. Strate and Tom Mower, Defendants and Respondents.

No. 15688.

Supreme Court of Utah.

Jan. 11, 1979.

Gerald E. Nielson, Salt Lake City, for plaintiff and appellant.

Robert C. Fillerup, Robert L. Moody, Provo, Allan L. Larson, Salt Lake City, Don R. Strong, Springville, Dan S. Bushnell and Bruce Findlay, Salt Lake City, for defendants and respondents.

ELLETT, Chief Justice:

Plaintiff, a former superintendent of the North Sanpete School District, brought suit against three members of the North Sanpete School Board and against one private citizen, alleging that he had been slandered by them. The trial court granted defendants' motions to dismiss on the grounds that defendant Mower had a constitutional right to participate in the election process, that the complaint did not state a prima facie case for slander, and that the other defendants' statements were privileged rendering them immune from suit.

Plaintiff brings this appeal, claiming error in that the complaint was sufficient to allege slander per se and that no immunity or privilege exists to protect the defendants from liability.

Since this appeal is based upon the dismissal of the complaint, this Court must accept the plaintiff's description of facts alleged in the complaint to be true, but we need not accept extrinsic facts not pleaded nor need we accept legal conclusions in contradiction of the pleaded facts. ¹

The complaint stated the following:

Plaintiff had been the superintendent of schools of the North Sanpete School District and enjoyed an excellent reputation as an effective school administrator in his community. Defendants conspired to remove him from his position and told many people of their desire to do so. They attacked the qualifications of plaintiff and, with the assistance of defendant Mower, sought and obtained election to membership of the school board of the North Sanpete School District. On May 23, 1977, defendants Cook, Madsen, and Strate spoke with plaintiff in defendant Strate's car. The following conversation ensued:

Defendant Cook: "You have interfered with us for the last time, we want your resignation."

Defendant Madsen: "And we want it within twenty-four hours."

Defendant Cook: "We have twenty-seven charges against you and if you do not resign, we will bring those charges out in public at the next Board meeting."

Defendant Strate: "I feel I have to go along with these men in this problem."

After this conversation, each defendant told many persons of their claim that they had twenty-seven charges against plaintiff which would be brought out publicly in the next meeting of the Board and a "public outcry" resulted. Defendant Strate appeared at a Spring City town meeting which was called by interested citizens wherein he said that "they (the defendants) had twenty-seven charges against the superintendent (the plaintiff) and he invited the people to 'Come to the Board meeting and see what they are.' " The Board meeting referred to was a public meeting held on May 26, 1977.

At the meeting held on May 26, 1977, the defendants declined to specify any charges against the plaintiff except for the charge of inadequate leadership in that the plaintiff did not have the support of the majority of the Board. Defendants have never specified any charges against plaintiff.

Defendants have told many persons privately of the charges and have fed and encouraged rumors and such rumors were made intentionally, deliberately, maliciously, and recklessly for the purpose of injuring plaintiff in his employment, in his profession, and in his reputation for the purpose of increasing their own influence over the affairs of the school board.

Plaintiff further states that even if the rumors are widely disbelieved that some persons will believe them or entertain doubts so that plaintiff will be disadvantated in his relationships with them, and that he will be rendered "less effective." Plaintiff cannot deny the charges because he does not know what they are but claims that the defendants made the statements in reckless disregard of the effect they would have upon plaintiff.

The plaintiff claimed general damages and punitive damages against the defendants but expressly waived any claim against the North Sanpete School District.

No special damages were alleged in the complaint.

In order to constitute slander per se, without a showing of special harm, it is necessary that the defamatory words fall into one of four categories: (1) charge of criminal conduct, (2) charge of a loathsome disease, (3) charge of conduct that is incompatible with the exercise of a lawful business, trade, profession, or office; and (4) charge of the unchastity of a woman. ² If the words spoken do not apply to one of the foregoing classifications, special harm must be alleged. The defamatory words are actionable if they impute a want of capacity or fitness for engaging in the plaintiff's profession or if they render him unfit to fulfill his duties. ³

The general rule is that if special damages are not alleged, the slander must amount to slander per se before recovery is allowed. ⁴ Slander per se does not require a showing of special damage because damages and malice are implied. ⁵

Whether defamatory words constitute slander per se depends on their injurious character. That is, the words must be of such common notoriety that the injury can be presumed from the words alone. ⁶ The Nichols case, Supra, at pages 77-78, 83 P. at 574 applied the following test:

When language is used concerning a person or his affairs which from its nature necessarily must, or presumably will, as its natural and proximate, consequence, occasion him pecuniary loss, its publication is libelous per se. (Citations omitted.)

The nature of the writing must be such that the court can legally presume that the plaintiff has been damaged. (Citations omitted.)

. . . Except where this presumption exists, special damages to the plaintiff's reputation must be alleged and proved to have been the actual and natural result of the language used. (Citations omitted.)

We further stated in Nichols that it must be seen that as a necessary consequence, plaintiff was damaged in some material manner. In that case, the evidence did not demonstrate that the plaintiff had been injured in his profession so that slander per se would lie. The words in issue did not impute such a meaning by themselves and the plaintiff failed, by way of innuendo or otherwise, to place such a meaning upon the words; therefore, this Court found that the complaint was defective since the words alleged as slanderous did not import charges of damage to the plaintiff's professional reputation. ⁷ In other words, if the statement made is capable of two interpretations, one interpretation which might refer to his professional reputation and one which might refer to his personal character, it cannot be slander per se. ⁸

Plaintiff has alleged that the statement made by the defendants that they had twenty-seven charges against him inferred criminal conduct on his part. This is not necessarily so. While some individuals might interpret that statement as criminal in nature, others would not. The "charges" could just as easily have implied conduct attributable to his individual character; and if so, they are not actionable since slander Per se must relate to plaintiff's professional reputation, not his personal reputation. Since defendants did not specify the substance of the charges, they are capable of two interpretations, thus, they cannot be recognized as slander per se.

In Beatty v. Ellings ⁹ the plaintiff claimed that certain interested private citizens and public officials had conspired to defame him. The Supreme Court there found no conspiracy but only that the defendants shared a common interest in the city project and were not favorably disposed to plaintiff's position. They further found that the words spoken arose out of a public controversy and involved utterances relating to that controversy, which utterances, even if defamatory, were not actionable since they did not necessarily connote an accusation resulting in slander. The court explained it in the following manner:

. . . Defamatory words spoken concerning a professional man are not actionable per se unless spoken with direct reference to his professional activity. . . . Plaintiff did allege that (the) reference to him as a liar and (the)...