Columbia Sussex Corp., Inc. v. Hay, 81-CA-8-MR

• Decision Date: 25 September 1981
• Docket Number: No. 81-CA-8-MR,81-CA-8-MR
• Citation: 627 S.W.2d 270
• Parties: 7 Media L. Rep. 2424 COLUMBIA SUSSEX CORPORATION, INC., William J. Yung, and David Diehl, Appellants, v. Laverne HAY, Appellee.
• Court: Kentucky Court of Appeals

Page 270

627 S.W.2d 270

7 Media L. Rep. 2424

COLUMBIA SUSSEX CORPORATION, INC., William J. Yung, and David Diehl, Appellants, v. Laverne HAY, Appellee.

No. 81-CA-8-MR.

Court of Appeals of Kentucky.

Sept. 25, 1981.

Discretionary Review Denied Feb. 10, 1982.

Bernard J. Blau, Jolly, Johnson, Blau & Parry, Newport, Thomas M. Tepe, Lindhorst & Dreidame, Cincinnati, Ohio, Nick Benson, Walton, for appellants.

H. Douglas Rouse, Florence, for appellee.

Before WHITE, WILHOIT and WINTERSHEIMER, Judges.

WHITE, Judge.

This appeal is taken from slander and false imprisonment awards rendered by a jury in the Boone Circuit Court.

On February 26, 1979, the Best Western Hotel of Richwood, Kentucky, was robbed. At that time appellee, Mrs. Hay, was manager of the hotel which was owned and operated by appellant, Columbia Sussex Corporation. Appellant William J. Yung was president and appellant David Diehl was General Manager of Columbia Sussex.

During the holdup the robber revealed knowledge of a special warning alarm attached to the cash register. If certain bills were lifted therefrom, the alarm was activated. Mr. Yung felt that such knowledge revealed that the robber had had inside information. Consequently, he called Mrs. Hay into an office to inform her that lie detector tests would be given her employees and her.

Evidently upset over being asked to participate in the testing, Mrs. Hay inquired whether Mr. Yung was insinuating that one of them had done it. To this he responded, "that is just exactly what I am saying, you will be surprised to find out which one did it." Further testimony implies that there were others present (Mr. Beagle, a Columbia Sussex vice-president, and/or some of the employees); however, none was called to establish that such words had indeed been heard and understood.

Subsequently, Mr. Diehl told Mrs. Hay to gather her workers for the polygraph. He is then to have said that Mr. Yung definitely felt that one of them (Mrs. Hay or her subordinates) was involved in the crime and that he tended to agree with him. Mrs. Hay testified by name that several others were present when this was said; however, none was called to corroborate this assertion.

Regarding the false imprisonment issue, testimony establishes that Mrs. Hay inquired of Mr. Diehl what would happen if they did not take the test. His answer was that they could leave, indicating that their jobs would be lost. Ultimately, each employee who was called took the polygraph examination. At the time that the tests were administered, each, including Mrs. Hay, signed a paper which acknowledged that the subject was taking the test under neither coercion nor duress. Mrs. Hay's testimony is that she did indeed submit under duress inasmuch as her job rested on such and that she informed the polygraph operator that her only lie was that she was taking it without coercion. The operator was not called.

Although the results of the tests were never formally given to the employees, testimony revealed that they established no connection between a worker and the robbery. No arrest had been made prior to trial.

A few days after this incident a television was stolen from one of the rooms. The employee in charge at that time apparently had not followed established procedure in taking the license number of the get-away vehicle; so Mrs. Hay was directed by telephone by Mr. Diehl to fire her. Mrs. Hay at first objected and then did so in what management felt was an unprofessional, insubordinate manner: While still on the line with Mr. Diehl, she yelled across the room, "Cindy, you are fired." Mr. Diehl thereupon went to the motel, and Mrs. Hay was discharged.

Mrs. Hay's further testimony is that as a result of the alleged slander and false imprisonment she suffered various nervous and digestive distresses for which she received medical attention and prescriptions. No receipts or relevant witnesses were offered to verify these medical expenses which her testimony established at $25.00. Her testimony must be held as limited therefore to descriptions of the transactions rather than proving the attendant costs. Inasmuch as those costs were the fact in issue, such testimony was immaterial.

Mrs. Hay also testified that after leaving Best Western she was compelled to take a lower paying position. No witnesses were called to prove that such in any way was related to feelings in the business community that she had been involved in the motel robbery, and her own testimony in this regard was merely self-serving and generally irrelevant.

Based upon the proof herein outlined and upon the instructions of the court, the jury returned awards of $5,000 compensatory/ $7,000 punitive damages under false imprisonment against appellants Yung, Diehl, and Columbia Sussex and $6,025 compensatory ($25 medicals, $6,000 humiliation)/$7,000 punitive damages under slander against appellants Yung and Columbia Sussex.

Appellants have raised numerous issues for appellate review. Rather than responding to each from a list, the various points will be addressed through a general discussion of the law of the case.

Defamation is not a readily understood area of the law; consequently, certain aspects need be put into perspective. Four elements are necessary to establish an action:

1. defamatory language

2. about the plaintiff

3. which is published and

4. which causes injury to reputation.

Defamation is a quasi-intentional tort, i.e. with the exception of the element of publication, its basis is in strict liability. Publication, however, must be shown to have been done either negligently or intentionally. The emphasis is not upon the meaning of the remarks as being negligently or intentionally defamatory but rather upon the manner in which such remarks were conveyed. The element of publication takes an adverbial stance: Were the words either negligently or intentionally communicated as to be heard by an understanding third party? See Prosser, Torts, § 113, p. 479 (4th Edition, 1971).

Appellants argue that the instruction given on this matter failed to pronounce this standard. We disagree as will be established under our discussion of privilege.

Slander per se differs from ordinary slander in that the words themselves, absent any development of extrinsic facts or circumstances, are actionable. Such words

must tend to expose the plaintiff to public hatred, ridicule, contempt or disgrace, or to induce an evil opinion of him in the minds of right-thinking people and to deprive him of their friendship, intercourse and society. But it is not necessary that the words imply a crime or impute a violation of laws, or involve moral turpitude or immoral conduct. Digest Publishing Company v. Perry Publishing Company, Ky., 284 S.W.2d 832, 834 (1955).

See also Bell v. Courier-Journal and Louisville Times Company, Ky., 402 S.W. 84 (1966), Gray v. Central Bank and Trust Company, Ky.App., 562 S.W.2d 656 (1978).

Defamation damages are categorized into compensatory (general and special) and punitive. Special damages are those beyond mere embarrassment which support actual economic loss; general damages relate to humiliation, mental anguish, etc.

The major remedial distinction between slander and slander per se is that with simple slander there must be a showing of special damages in order to establish the element of injury to reputation. Under slander per se the very nature of the defamatory utterance is presumptive evidence of the injury to reputation and of the ill will otherwise necessary to support a punitive award. ¹ Although evidence of special damages is not needed to sustain the action, such may nevertheless be offered for a recovery on that basis.

As a showing of special damages is mandatory to create a prima facie action for slander, such necessarily is a prerequisite to an award of punitive damages. With slander per se, however, the presentation of special damages is optional; it is required neither for a prima facie case nor for the recovery of punitive damages. Taylor v. Moseley, 170 Ky. 592, 186 S.W. 634 (1916); Walker v. Tucker, 220 Ky. 363, 295 S.W. 138 (1927).

That a cause is actionable per se is a matter of law. Shields v. Booles, 238 Ky. 673, 38 S.W.2d 677 (1931). The primary question to be addressed, therefore, is whether the present cause falls within slander per se.

Although, as noted, it is not necessary that involvement in a crime be imputed to establish slander per se, certainly when such activity is indeed suggested, the requisites are met. Herein the words challenged conveyed the strong assertion that either Mrs. Hay or one of the employees working under her was implicated in the robbery, a criminal offense. Standing alone, those words must be held slanderous per se.

The question then turns to whether Mrs. Hay was sufficiently identified as the target of suspicion to give her standing to assert an action for defamation. In Louisville Times v. Stivers, 252 Ky. 843, 68 S.W.2d 411, 412 (1934), the court noted exceptions to the general rule that when defamatory reference to a class is made, one must establish that he personally was defamed:

... if the language employed is directed toward a comparatively small group of persons, or a restricted or local portion of a general class, and is so framed as to make defamatory imputations against all members of the small or restricted group it seems that any member thereof may sue. (Emphasis added.)

Case citations involving groups varying in size from two to seventeen followed. Under the reasoning of this line of cases, Mrs. Hay clearly had standing.

Appellants argue that even were the elements of slander established and Mrs. Hay given standing, they were protected under a theory of privilege. Urging that at least qualified privilege attaches to dealings within the employment relationship, they assert that the court below erred in failing to instruct on the defense of privilege. Appellee responds that privilege is an...