Bolling v. Baker

• Decision Date: 22 February 1984
• Docket Number: No. 04-82-00144-CV,04-82-00144-CV
• Parties: David BOLLING, Appellant, v. Rita BAKER, Appellee.
• Court: Texas Court of Appeals

Page 559

671 S.W.2d 559

David BOLLING, Appellant, v. Rita BAKER, Appellee.

No. 04-82-00144-CV.

Court of Appeals of Texas San Antonio.

Feb. 22, 1984.

Rehearing Denied April 9, 1984.

Thomas H. Crofts, Jr., Groce, Locke & Hebdon, San Antonio, for appellant.

Bruce Robertson, Jr., Terri Peace, San Antonio, for appellee.

OPINION

Before CADENA, C.J., and CANTU and DIAL, JJ.

CANTU, Justice.

This is a slander case. The appellee, Rita Baker, recovered judgment against the appellant, David Bolling, based upon a jury verdict. Appellant raises twelve points of error on appeal.

These points of error are: (1) the trial court erred in rendering judgment against appellant because a qualified privilege was established and the evidence is legally and factually insufficient to support the jury's finding of "knowledge of falsity or reckless disregard of the truth;" (2) appellant's requested definition of "reckless disregard" should have been submitted; (3) as a matter of law, the jury's finding of malice defined as "ill will" neither overcomes the qualified privilege nor justifies exemplary damages or alternatively, the evidence is legally and factually insufficient to support that finding; (4) evidence that appellant performed abortions was erroneously admitted and such was harmful; (5) the trial court erred in overruling appellant's objection to appellee's attorney's final argument which referred to appellant as "ashamed of his profession," and such error was harmful; (6) the trial court erred in excluding evidence that appellee had written bad checks; (7) the award of compensatory damages was error because the evidence is legally and factually insufficient to support findings that damages were sustained; (8) the jury's awards of compensatory damages are excessive and were influenced by passion or prejudice; (9) the trial court erred in failing to suggest a remittitur; (10) the award of exemplary damages was error because the evidence is legally and factually insufficient to support the jury's finding of malice as defined as "ill will"; (11) the jury's award of exemplary damages is excessive and influenced by passion or prejudice; and (12) the trial court erred in failing to suggest a remittitur.

A consideration of the questions involved in this case requires a recital of the evidence presented at the trial. The following is believed to be a fair summary of such evidence.

Appellant is a San Antonio physician engaged in the practice of obstetrics and gynecology. In May of 1979 he worked at the Women's Clinic Association at 401 West Summit. Appellant shared office space and expenses with two other physicians, Dr. Brown and Dr. Schanzer.

In May of 1979, appellee, a licensed vocational nurse, was interviewed and hired by appellant. She was assigned to work with appellant and her duties included working with the patients in the examination room--reviewing and completing each patient's chart by measuring blood pressure and weight, performing urine tests, and preparing the patient for other physical tests and examinations.

The statements about which appellee complains were the result of an incident that occurred at work on October 21, 1980. A patient came to see appellant. Appellee measured her weight and blood pressure and tested her urine. Appellee then saw a notation on the "Follow-Up Visits" portion of the patient's chart to "repeat rubella." Relying on this notation, appellee erroneously sent the patient to the lab where blood was drawn for a rubella test.

Appellee testified that she learned of the mistake from the lab technician, who told her the test had already been repeated. According to appellee, she then went to appellant to inform him of her mistake and he said, "That's fine." Later that day he asked her to bring him the chart which was now back in the front office with the receptionist and secretary. Appellee maintained that the reason for the mistake was because she had seen the lab slip with the notation "repeat rub" (repeat rubella test), dated 07/25/80, on the first page of the chart and had not looked at the lab slips which were deeper in the file and which revealed that the test had already been repeated.

Appellant testified that he learned of the mistake when he checked the patient's lab slips, which were attached to the "Lab Reports" part of the chart. According to appellant, the latest lab slip, dated 8/26/80, was on top and showed that the repeat rubella test had already been performed. He wrote "not necessary" on the "Follow-Up Visits" part of the chart. He then laid the chart on his desk. He testified that about ten minutes later, appellee came to him with the chart to explain her mistake. When he looked at the lab slips, he testified that they were in a different order from when he had previously seen them. According to him, the top lab slip was now the one dated 7/25/80 which ordered the repeat rubella test and it looked as if it had just been reglued to the chart.

Appellant demanded to know if appellee had changed the order of the slips, which she denied. Appellant then asked other office employees whether they had changed the order of the lab slips. No one knew anything about it. Appellant gave appellee a time limit to find out who had changed the slips. According to appellant, he gave appellee 24 to 48 hours to come up with an explanation. Appellee, however, claimed that he gave her until five o'clock, and said, "I don't care how you do it. I don't care if you point your finger at somebody. You finger somebody. You find out who did this, who changed this chart and you bring this person to me, if not, then I'll have to terminate you."

The appellee went around to all the other employees to see if one of them had changed the positions of the lab slips. No one could remember if they had or even if the order of the slips had changed. No one could say there had been a change except the appellant.

According to appellee, she was called into appellant's office at five o'clock that evening to see if she had found out who had changed the slips in the file. She said she had not and she was given until the next day to bring appellant the person who did it and if not, she would have to confess if she were to stay as an employee. Appellee testified that appellant said, "If you decide to stay, I'm going to ride your ass like you have never been ridden before. I'm going to watch over you and I'm going to make it difficult for you, if you decide to stay." The next day, appellant asked appellee to bring the transcript of her nursing school records, indicating that he wanted to see where she went to school and how much education she had.

The following day appellant once again called appellee into his office and questioned her about the patient's chart. Unable to come up with an explanation or the name of a person who changed the order of the slips, appellee was fired. That evening appellant called a staff meeting of the clinic's five office employees. Referring to appellee, appellant informed the employees that he could not work with anyone who was a liar, who was not trustworthy and was not loyal to his practice.

Appellee brought suit, alleging that appellant had falsely accused her of being dishonest. The case was tried and submitted to a jury which found that the statements made by appellant about appellee to the employees at the staff meeting were false, ¹ that such statements were made with the knowledge that they were false or with reckless disregard for the truth, and that appellant was actuated by malice in making such statements. ² The jury awarded appellee $65,000 in actual damages and $60,000 in exemplary damages. The trial court rendered judgment for appellee based upon these findings.

In his first point of error, appellant asserts, and the appellee does not contend otherwise, that the statements were made under circumstances giving rise to a conditional or qualified privilege. There is no question but that the defense of common law conditional privilege can be overcome by a showing of actual malice. See Dun and Bradstreet, Inc. v. O'Neil, 456 S.W.2d 896, 900 (Tex.1970). Actual malice is defined as requiring a showing that the defamatory statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Dun and Bradstreet, Inc. v. O'Neil, supra; El Paso Times, Inc. v. Trexler, 447 S.W.2d 403 (Tex.1969).

"Reckless disregard" requires proof that a false defamatory statement was made with a "high degree of awareness of [its] probable falsity." Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964); Foster v. Upchurch, 624 S.W.2d 564, 566 (Tex.1981). There must be sufficient evidence to conclude that the defendant in fact entertained "serious doubts" as to the truth of the publication. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968); Foster v. Upchurch, supra, at 566. The issue of actual malice was presented to the jury in the instant cause and was answered affirmatively. Appellant asserts that the evidence is legally and factually insufficient to support the jury's finding of actual malice.

In deciding the question of whether there is any evidence of probative force to support a finding, this Court considers only evidence and inferences tending to support the finding and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In deciding whether the evidence is sufficient to support a finding, this Court considers and weighs all the evidence in the case and will set the finding aside if it is so against the weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

Where an utterance is qualifiedly privileged the law presumes good faith and want of malice. Jackson v. Cheatwood...