Brockman v. Detroit Diesel Allison Div. of General Motors Corp.

• Decision Date: 13 September 1977
• Docket Number: No. 2-1175A336,2-1175A336
• Citation: 174 Ind.App. 240,366 N.E.2d 1201
• Parties: , 96 L.R.R.M. (BNA) 2656 James A. BROCKMAN, Appellant (Plaintiff below), v. DETROIT DIESEL ALLISON DIVISION OF GENERAL MOTORS CORPORATION, Appellee(Defendant below).
• Court: Indiana Appellate Court

Page 1201

366 N.E.2d 1201

174 Ind.App. 240, 96 L.R.R.M. (BNA) 2656

James A. BROCKMAN, Appellant (Plaintiff below), v. DETROIT DIESEL ALLISON DIVISION OF GENERAL MOTORS

CORPORATION, Appellee(Defendant below).

No. 2-1175A336.

Court of Appeals of Indiana, Second District.

Sept. 13, 1977.

Vernon J. Petri, Richard W. Lorenz, John J. Fuhs, Spencer, for appellant.

Edward O. Delaney, Raymond W. Gray, Barnes Hickam, Pantzer & Boyd, Indianapolis, Frazer F. Hilder, Gen. Counsel, General Motors Corp., Detroit, Mich., for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Plaintiff-Appellant James A. Brockman (Brockman) appeals from a judgment on the evidence in a defamation action brought by him against Defendant-Appellee Detroit Diesel Allison Division of General Motors Corporation (Allison), claiming error because the defamation was actionable per se; there was an unprivileged publication of a defamatory statement to a third party; and that even if the utterance were qualifiedly privileged, there was evidence of malice.

We affirm.

FACTS

The facts and evidence most favorable to the trial court's judgment are:

Brockman was employed by Allison as a "metal former" in the welding department. He operated a machine known as a flame cutter which consists of several torches used to cut metal parts.

On October 31, 1973 Brockman operated the flame cutter during the day shift. Shortly after the night shift took over the general foreman, George Pannell (Pannell), received a call requesting him to examine the flame cutter. He discovered that the tips of the torches on the gas operated machine had been plugged up with debris so that they would not light, thereby causing a serious safety hazard.

After determining that the tips had been plugged intentionally and considering who had access to the room, the men involved, and the possibility of a frame-up Pannell concluded that Brockman was responsible.

The next day, November 1, 1973, Pannell asked Brockman if he had any idea how the foreign material had gotten into the tips. Brockman did not have a satisfactory answer, so Pannell discharged him for having violated Shop Rule 33, Sabotage.

That same day Brockman filed a grievance seeking reinstatement "with full seniority, pay for all lost time and my record cleared of the incident."

In accordance with the established grievance procedure a meeting was held on November 5, 1973 between certain representatives of the United Auto Workers Union, Local 933 (Union) and a representative of management Jerry Cummins, a union zone committeeman in the same department but on a different shift from Brockman, was present and participated in the discussion at this meeting. It was this discussion before Cummins of the circumstances of Brockman's discharge which constitutes the alleged defamation.

to consider Brockman's grievance. At this meeting, an informal one, the circumstances of Brockman's discharge were discussed.

Prior to the meeting Cummins had been informed by other union representatives of Brockman's discharge and while he was not required to be present at this particular meeting, he was also a member of the shop committee which was an integral part of the grievance procedure representing employees on behalf of Local 933. As Cummins testified, we "do all we can to represent anybody, even if they're right or if they're wrong. Anybody you know." He further testified that the meeting in question was an informal one where anyone involved in the grievance procedure may help get the grievance resolved . . . they are "more than welcome to add their two cents worth."

Brockman's grievance was not resolved at this meeting and he remained unemployed during November and December of 1973 and part of January of 1974. In January he was called back to Allison and told to report to the general maintenance department. He returned to work with full benefits and received One Thousand Seven Hundred Sixty-five ($1,765.00) Dollars in back pay.

Apparently dissatisfied with the resolution of his grievance Brockman filed on April 13, 1974, a Complaint in the Marion Circuit Court alleging the accusation that he had sabotaged a piece of machinery was wilfully and maliciously published to other persons without privilege.

At the close of Brockman's case, Allison made a Motion for Judgment on the Evidence asserting that Brockman had failed to establish a prima facie case of defamation.

In granting Allison's motion, the court concluded that there was no unprivileged publication, no malice, and that the defamation was not slander per se and entered judgment on the evidence in favor of Allison.

Brockman appeals from that judgment. ¹

ISSUE

Simply stated the sole issue ² is whether the trial judge erred in granting judgment on the evidence in favor of Allison at the close of Brockman's evidence.

PARTIES' CONTENTIONS Brockman contends judgment on the evidence was improper because he produced some evidence on every element necessary to establish a case of defamation and that any limited privilege created was overcome by malice.

Allison counters that Brockman produced no evidence that the defamatory statement was published to a third party, that the statement was at the very least qualifiedly privileged, that Brockman introduced no evidence of malice, and that this court should find the communication to be absolutely privileged in which case malice would be irrelevant.

DECISION

CONCLUSION The trial court did not err in granting judgment on the evidence in favor of Allison at the close of Brockman's evidence.

Defamation is not actionable unless there is a "publication." Without communication of defamatory matter to a third party, it is of no consequence whether the communication is actionable per se, privileged, or uttered with malice. Brockman fails to establish the requisite publication.

His only offering in support of a publication is the discussion of his discharge in the presence of Cummins at the grievance meeting on November 5.

Although there is some authority to the contrary, ³ the more persuasive authority holds that a publication to an agent of plaintiff who is acting at plaintiff's behest and on his behalf is tantamount to a publication to plaintiff himself, and as such does not fulfill the publication requirement.

In a remarkably similar situation ⁴ in McDaniel v. Crescent Motors (1947), 249 Ala. 330, 31 So.2d 343, the court found there was no publication of alleged slanderous remarks made by the defendant to a representative of plaintiff's union who was inquiring into the reasons for plaintiff's discharge. This was so even though the representative of the union was not shown to have special authority from the plaintiff as such but did occupy a position in the union making him the agent for all its members in such grievance matters. The rationale was stated to be Publication is essential to slander, and it must be in the presence of one or more other parties.

So that if the words were spoken only to the complaining party or to his agent, representing him in the matter discussed and invited by him, it is not such a publication as will support an action for slander. This includes one who is interceding for the employee as his authorized agent and representative. (citations omitted)

McDaniel v. Crescent Motors, supra at 332, 31 So.2d 344. See also Beck v. Oden (1941), 64 Ga.App. 407, 13 S.E.2d 468; Taylor v. McDaniels (1929), 139 Okl. 262, 281 P. 967; Freeman v. Dayton Scale Co. (1929), 159 Tenn. 413, 19 S.W.2d 255.

Likewise, in Mims v. Metropolitan Life Ins. Co. (5th Cir. 1952), 200 F.2d 800, the plaintiff, suspecting political motivation, asked a Senator to inquire into the reasons for his discharge. Defendant responded to the Senator that the discharge had been prompted by plaintiff's inefficiency and unsatisfactory production. In plaintiff's action for defamation (libel), the court found that plaintiff failed to establish publication to a third party:

Publication is essential to libel, and the publication must be made to one or more third parties.

(I)f the language complained of was uttered only to the complaining party or to his agent representing him in the matter discussed in the communication, it is not such a publication as will support an action for slander. Mims v. Metropolitan Life Ins. Co., supra at 801, 802.

Both parties acknowledge the union is the sole representative of its members in resolving employment disputes. So the conclusion is inescapable that there could be no publication of defamatory material in the meeting of November 5 in which the discharge of Brockman was discussed and at which Cummins was present, because Cummins was Brockman's union agent acting to resolve the very grievance filed by Brockman. No overt attack took place on the reputation of another at this meeting. See 53 C.J.S. Libel & Slander § 1 (1948).

Just as there can be no actionable defamation if there is no publication, one who consents to publication of what could constitute a defamatory statement is barred from recovery. Harper & James § 5.17. These two concepts are interrelated.

One who agrees to submit his conduct to investigation knowing that its results will be published consents to that publication. W. Prosser, Handbook of the Law of Torts § 114 (4th ed. 1971) (hereinafter Prosser).

The court in Mims v. Metropolitan Life Ins. Co., supra at 802, recognized the implied consent resulting from publication to the alter ego of the plaintiff:

In making the inquiry . . . Senator Sparkman was acting at the express request of plaintiff and with his approval, virtually as plaintiff's alter ego. Defendant's president replied to the person through whom the inquiry was thus made. The letter complained of having been solicited by plaintiff, through his representative Senator Sparkman, plaintiff thereby impliedly consented that defendant reply through the same representative. In contemplation of law it was a reply to the plaintiff himself. Without plaintiff...