Austin v. Torrington Co.
| Decision Date | 23 January 1987 |
| Docket Number | Nos. 85-1740,s. 85-1740 |
| Citation | 810 F.2d 416 |
| Parties | 105 Lab.Cas. P 55,677, 2 Indiv.Empl.Rts.Cas. 1737 Carroll L. AUSTIN, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Charles S. GLASER, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Judy C. HOWARD, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Nancy BROWN, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Anthony L. DUCKETT, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Josephine HILL, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. David R. FRICK, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Ronnie Dean DUCKETT, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. James A. McABEE, Jr., Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. John Edward WARD, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Robin W. CALDWELL, Appellee, v. The TORRINGTON COM |
| Court | U.S. Court of Appeals — Fourth Circuit |
David L. Freeman (Carl F. Muller, Wyche, Burgess, Freeman & Parham, P.A., Greenville, S.C., Robert L. Thompson, Stephen M. Paskoff, Thomas A. Pogue, Elarbee, Thompson & Trapnell, Atlanta, Ga., on brief), for appellant.
J. Kendall Few (Few & Glenn, Greenville, S.C., on brief), for appellees.
Before HALL and WILKINSON, Circuit Judges, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.
This case presents four issues for resolution under the law of South Carolina, Federal jurisdiction being predicated on diversity of citizenship. First, does South Carolina common law recognize a cause of action for "blacklisting"? Second, was the language alleged by the plaintiffs below as slanderous sufficient under South Carolina common law and under the evidence presented at trial, to support the jury's affirmative verdict on the question of slander? Third, were the challenged statements privileged, or qualifiedly privileged, as a matter of law? Fourth, under the evidence adduced, were the plaintiffs caused to suffer actual damages, and, if so, are the plaintiffs entitled to punitive damages?
The case arises under a somewhat unusual set of facts. Eleven separate cases were filed against the Torrington Company, Appellant herein, by eleven of its former employees. The complaints asserted claims against Torrington and Webb Forging Company, but Webb was dismissed as a party before trial for lack of diversity jurisdiction, and the cases proceeded against Torrington only. These eleven cases were consolidated and tried to a jury in the United States District Court for the District of South Carolina. Verdicts were returned for all eleven plaintiffs, all receiving monetary awards ranging from $5000.00 to $7500.00 for "hurt feelings", all receiving monetary awards of $20,000.00 each for punitive damages, and three plaintiffs receiving monetary awards ranging from $1350.00 to $7500.00 for economic loss.
The remaining eight plaintiffs received nothing for economic loss.
The verdicts were followed by the defendant's motion, among others, for judgment non obstante veredicto, or in the alternative for a new trial. This motion was denied, 611 F.Supp. 191, and this appeal followed in timely fashion.
It is apparent that there were some factual differences in the various situations involving the eleven plaintiffs. However, each plaintiff sought actual and punitive damages under two counts, one for defamation and one for "blacklisting". In each of the eleven complaints, the basis asserted for both allegations was a telephone call between the personnel manager of the Appellant, Mr. Love, and the personnel manager of a separate, similar company, the Webb Forging Company, Mr. Dowd.
Essentially, the facts are not much in dispute, so far as the events giving rise to the charges of defamation and blacklisting are concerned. In 1982, because of economic considerations, the Appellant had been required to lay off many of its personnel. At that time, the Webb Forging Company was in the process of establishing its plant in the same community, to operate in somewhat the same business activity as that of Appellant, and Mr. Dowd was engaged in the process of selecting new employees to staff the Webb Forging Company plant.
Incident to that hiring process, one of the plaintiffs, Charles Glaser, a former employee of Torrington, applied to and was interviewed by Mr. Dowd for a position at the Webb Forging Company. Mr. Glaser had brought to the interview a resume which he left with Mr. Dowd. Dowd then called Mr. Love at Torrington to inquire about matters concerning Glaser's application. At trial, Dowd testified that he was not certain about the recall rights of employees laid off by Torrington, and that he wished to clarify this question. Love indicated that he was not able to recommend Mr. Glaser for employment, and he then apparently went on to state his views about other former employees of Torrington. Mr. Dowd made notes of these comments as they were made, and ultimately reduced them to a memorandum in the following form:
CONFIDENTIAL INFORMATION 1
CHARLES GLASER. 17 yrs. (NO)
2. TIM CALICUT MILITANT
3. PAUL RICE WORK.COMP. LABOR BOARD GOOD TALKER (NO)
NANCY BROWN
JUDY HOWARD ORGANIZER (NOW) + ERA
ROBIN CALDWELL
JOSEPHINE HILL
CARROLL AUSTIN EMOTIONAL PROBLEM (MALE)
DAVID FRICK
ANTHONY DUCKETT MILITANT
13. ROBERT JETER
ROCK HILL UNION
ORGANIZERS
EDDIE REEVES
RAY RENFROW
? BUMPER
This memorandum contained not only the information given by Mr. Love to Mr. Dowd during the telephone call, but also included four names, Eddie Reaves, Ray Renfrow, ? Bumper, and Eddie Nichols, which Dowd had received from Love in a previous meeting when the two had discussed union policies, union methodology, etc., in the area of their operations.
Most of the fourteen people listed on the first part of the memorandum had made one or more applications to Webb Forging for employment after they had been laid off by the Appellant. Dowd testified without contradiction at trial that at the time of his telephone conversation with Love, and for some time thereafter, he had approximately 2500 applications for employment in his files, with less than 100 places to be filled initially, but that his method of selecting employees was to act on the recommendation of persons in the community in whom he had trust, and on the recommendations of current employees of Webb Forging. Upon receiving such a recommendation, he would then interview the individual, and, if necessary, would request that the individual fill out an application form for employment. If he found the recommended individual's application in the file, he did not require a new application.
Dowd testified that the "confidential information" memorandum, supra, was placed in his desk, and remained there for some eighteen months until a security guard saw the list on Dowd's desk, recognized at least two names on the list, made a photocopy of the list, and gave that photocopy to one of the plaintiffs, Austin, who was the nephew of the security guard.
Thereafter, Austin filed suit against the Appellant, and the attendant publicity alerted the other ten plaintiffs to the fact that their names also were contained on the list. The remaining ten plaintiffs then each brought suit and the matter came on for trial. Two of those mentioned on the list who became plaintiffs, Robin Caldwell and David Frick, did not apply for employment with Webb during the period involved in the case.
The standard for appellate review of a judgment below, on appeal of denial of a motion for judgment notwithstanding the verdict, or in the alternative for a new trial, is whether there is evidence upon which a jury could properly find a verdict, Ralston Purina Co. v. Edmunds, 241 F.2d 164, 167 (4th Cir.1957). Appellate review is not to weigh the contrasting evidence, not to judge credibility of witnesses, and not to substitute the reviewer's judgment of the facts for that of the jury. See Whalen v. Roanoke County Board of Supervisors, 769 F.2d 221 (4th Cir.1985) ().
Against this standard, an old case, still followed, holds that a "scintilla" of evidence is not enough to sustain a verdict, Schuylkill and Dauphin Improvement Co. v. Munson, 81 U.S. (14 Wall) 442, 448, 20 L.Ed. 867 (1871), and case law further provides that any inferences drawn by the jury must be "reasonably probable;" mere speculation is insufficient. Lovelace v....
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