Elder v. Holland

• Decision Date: 12 June 1967
• Citation: 155 S.E.2d 369,208 Va. 15
• Parties: L. T. ELDER v. R. H. HOLLAND.
• Court: Virginia Supreme Court

Page 369

155 S.E.2d 369

208 Va. 15

L. T. ELDER v. R. H. HOLLAND.

Supreme Court of Appeals of Virginia.

June 12, 1967.

R. R. Ryder, Richmond, for plaintiff in error.

Richard L. Williams, Richmond (Alexander H. Slaughter, McGuire, Woods & Battle, Richmond, on brief), for defendant in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

GORDON, Justice.

Elder brought this action against Holland for common law defamation and under the insulting-words statute (Va.Code Ann. § 8--630 (Repl. vol. 1957)). The trial court sustained Holland's demurrer to Elder's motion for judgment, and Elder now appeals.

Elder, a State police officer, who on special assignment to the Governor of Virginia during 1962. In March or April of that year, the Superintendent of the State Police received a complaint that the State 'had paid twice' for Elder's transportation to Honolulu to attend a Governors Conference. The superintendent's executive officer directed Holland, a State police captain, to investigate the complaint.

Holland made a report to the superintendent setting forth his findings on the original complaint and also on other suspected irregularities in Elder's expense accounts. On May 14, the following an informal hearing in his office, the superintendent dismissed Elder from the Department of State Police.

The superintendent held a more formal hearing on August 31, 1962. He described it as a 'Departmental hearing to aid me in the administration of the Department of State Police, and determine what action I should take'. Elder was represented at the hearing by his attorney; an Assistant Attorney General appeared on behalf of the Commonwealth. Elder, Holland and fourteen other witnesses testified. All testified under oath, and a court reporter transcribed the proceedings.

Elder admitted that Wilbur Walker, an Administrative Assistant to the Governor, had advanced State funds for his transportation to Honolulu to attend the Governors Conference. Elder asserted, however, that he had repaid these funds to Walker before submitting an expense account to the Department of State Police seeking reimbursement for his expenses on that trip.

While Holland was testifying at the August 31 hearing, he was asked to repeat what Walker had said to him during his investigation of the charges against Elder. Holland said (in part): 'We alked at some length in there, and before he (Walker) left he was standing up against the wall by the door before we left, and he made this statement, he said: Jack Elder is a vicious, evil, common person. He does not believe in God and you cannot do business with a man that doesn't believe in God, and you have no business with such a man in your police department.'

At the conclusion of the testimony, the superintendent announced his conclusion that Elder's dismissal on May 14 was proper.

In his motion for judgment Elder alleged that Holland 'wrongfully, maliciously and injuriously' uttered and published the words purportedly said by Wilbur Walker, quoted in the second preceding paragraph. (The words as set forth in the motion for judgment are not identical with, but are substantially the same as, those quoted in the second preceding paragraph.)

Holland filed a plea asserting his immunity from liability for the words he spoke. He alleged that he spoke them in the scope of his official duties as a member of the Virginia Department of State Police. He therefore claimed that as an agent of the State he was protected by the State's immunity from tort liability.

By a bill of particulars Elder stated that the words uttered by Holland on August 31, 1962 were uttered 'during the course of what might be termed a hearing'. Holland then filed a demurrer to the motion for judgment and bill of particulars, alleging that Elder had failed to state a cause of action and had failed to allege any facts upon which relief could be granted.

Subsequently the parties stipulated that the transcript of the August 31, 1962 hearing 'insofar as it is relevant, * * * constitutes evidence in this case taken without objection and available to be used by either party for any purpose in the conduct of his case before this Court or upon appeal'. (The facts recited in the second through seventh paragraphs of this opinion are taken from that transcript, which is part of the record before us.)

The court brought the action on to be heard upon the plea and the demurrer. It sustained the demurrer, without assigning reason. The court found it unnecessary to rule on the plea. Elder now appeals from the order sustaining the demurrer.

Elder's counsel argues that the motion for judgment stated a cause of action. We agree.

Holland's counsel contends, however, that even if the motion for judgment stated a cause of action, the trial court properly sustained his demurrer. He argues that when the bill of particulars and the transcript of the August 31, 1962 hearing are considered, it is apparent that the State required Holland to testify at the hearing in the performance of his duties as a State police officer. Consequently, any damage inflicted by Holland's words was inflicted by the State. Because the State cannot be liable, says counsel, its agent Holland is also immune from liability. Holland's counsel contends that it was proper for the trial court to consider the bill of particulars and the transcript of the August 31, 1962 hearing. He points out that the bill of particulars, which admitted that Holland spoke the words at a hearing, is a pleading under our Rule 3:18(a) (a) (Va.Code Ann., Vol. II, p. 595 (Repl. vol. 1957); 205 Va. 986). He points also to the stipulation that permitted either party to use the transcript of the hearing for any purpose in the trial court or here. Counsel says that by this stipulation Elder waived the rule that nothing outside the pleadings can be considered upon a demurrer, citing Smith v. Wolsiefer, 119 Va. 247, 89 S.E. 115 (1916); King v. Norfolk & Western Ry., 99 Va. 625, 39 S.E. 701 (1901).

We interpret the stipulation as a consent that the transcript of the hearing be incorporated into the motion for judgment for the purposes of the demurrer. So we will consider the facts disclosed by the transcript in deciding whether the trial court should have sustained the demurrer.

Counsel relies principally on Sayers v. Bullar, 180 Va. 222, 22 S.E.2d 9 (1942), to support his argument that Holland, an agent of the State, is immune from liability for his defamatory words. Sayers brought an action for damages against two State employees who had exploded dynamite charges while constructing a fish hatchery on State property near Sayers's farm. Sayers alleged that the explosions had caused his spring to cease flowing. The defendants demurred on the ground that they, as State employees, were immune from such an action. The trial court sustained the demurrer, and we affirmed.

We said 'as long as * * * (the State's) agents act legally and within the scope of their employment, they act for the State, but if they act wrongfully the conduct is chargeable to them alone'. Id. at 228, 22 S.E.2d at 11. We pointed out that the State had the right to construct the hatchery, and there was no allegation that the defendants had exceeded the authority or directions given them or that the defendants had acted negligently. So 'they were acting solely in their representative capacity as lawful and proper agents of the State and not in their own individual right. * * * The alleged act of the defendants was the act of the State. * * * The State cannot be liable, therefore the defendants cannot be liable'. Id. at 229, 22 S.E.2d at 12.

On facts of the Sayers case, we held that the State employees were protected by the State's immunity from tort liability. But we recognized that a State employee may be liable for his conduct while performing work for the State, if his conduct is wrongful. 'The true rule would seem to be to require proof (and allegation) of some act done by the employee outside the scope of his authority, or of some act within the scope of authority but performed so negligently that it can be said that its negligent performance takes him who did it outside the protection of his employment.' Id. at 229, 22 S.E.2d at 12.

In Wynn v. Gandy, 170 Va. 590, 197 S.E. 527 (1938), we affirmed a judgment against the driver of a county school bus based upon his ordinary negligence while performing his duties for a governmental agency. In Rives v. Bolling, 180 Va. 124, 21 S.E.2d 775 (1942), we affirmed a judgment against a State policeman for his negligent shooting of a young woman while he was performing his duties. In Berry v. Hamman, 203 Va. 596, 598, 125 S.E.2d 851, 853 (1962), we pointed out by dictum that a police officer may be personally liable for negligent acts in the performance of a ministerial duty. And in Green & Company v. Thomas, 205 Va. 903, 140 S.E.2d 635 (1965), we said that negligence must be proved if a contractor performing work for the State is to be held personally liable in a tort action.

Having concluded that a State employee may be held liable for negligent conduct, we must conclude that a State employee may be held liable for intentional torts. Holland is therefore not immune from liability for defamatory words spoken while performing his duties as a State police officer.

This conclusion accords with the decisions of a majority of the state courts in this country that have passed on the question. 47 Calif.L.Rev. 303, 342 & n. 246 (cases collected) (1959).

The Court of Appeals of Mayland in Mason v. Wrightson, 205 Md. 481, 109 A.2d 128 (1954), held a Baltimore policeman personally liable for assault and battery and false imprisonment. Sergeant Wrightson, acting on orders from his captain and the Commissioner of Police to 'search for possession of dangerous weapons on all persons coming under police suspicion', took a squad of policemen to a Baltimore night...