Evely v. Carlon Co., Div. of Indian Head, Inc., No. 82-510

• Court: United States State Supreme Court of Ohio
• Writing for the Court: PER CURIAM; FRANK D. CELEBREZZE; STEPHENSON, J., of the Fourth Appellate District, sitting for WILLIAM B. BROWN; GREY, J., of the Fourth Appellate District, sitting for JAMES P. CELEBREZZE
• Citation: 4 OBR 404,4 Ohio St.3d 163,447 N.E.2d 1290
• Docket Number: No. 82-510
• Decision Date: 20 April 1983
• Parties: , 109 Lab.Cas. P 55,917, 4 O.B.R. 404 EVELY, Appellant, v. CARLON COMPANY, DIV. OF INDIAN HEAD, INC., Appellee.

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4 Ohio St.3d 163 447 N.E.2d 1290, 109 Lab.Cas. P 55,917, 4 O.B.R. 404 EVELY, Appellant,
v.
CARLON COMPANY, DIV. OF INDIAN HEAD, INC., Appellee. No. 82-510. Supreme Court of Ohio. April 20, 1983.

Forrest W. Burt, Painesville, for appellant.

Spieth, Bell, McCurdy & Newell Co., L.P.A., and Ron Tonidandel, Cleveland, for appellee.

PER CURIAM.

In his first proposition of law, the appellant argues that the appellee, through its officers, made defamatory statements about the appellant and that such statements were made with malice; and that it was error for the trial court to have granted the appellee's motion for summary judgment in the absence of an evidentiary showing that such statements were made in good faith.

At the outset, it must be pointed out that all of the statements attributed to the officers of the appellee were made concerning the activities of the appellant arising out of his employment status with the company. None of these statements was directed to the appellant as an individual separate and apart from his employment. As such, the statements would be afforded a qualified privilege concerning matters of common business interest between the parties and, accordingly, there must be a showing that they were made with actual malice in order for the appellant to prevail. In this regard there must be evidence adduced by the appellant beyond the mere allegations contained in the complaint.

The general principles applicable to qualified privilege were set forth in Hahn v. Kotten (1975), 43 Ohio St.2d 237, 331 N.E.2d 713 [72 O.O.2d 134], an action in slander brought by an insurance agent against the insurance company he formerly represented. The alleged defamation in Hahn was correspondence by the company to policyholders, stating that the plaintiff had been terminated as an agent of the company and that the company questioned the capability of the plaintiff to perform as an insurance agent. This court held that the company had a qualified privilege to publish such material because it had a business right to protect, and held that a directed verdict for the defendant was proper since there was no showing by the plaintiff that the defendant acted with "actual malice."

Hahn, supra, was later cited and followed in Costanzo v. Gaul (1980), 62 Ohio St.2d 106, 403 N.E.2d 979 [16 O.O.3d 134], in which this court upheld the trial court's [447 N.E.2d 1293] granting of a directed verdict to the defendant city councilman in an action for slander brought by a real estate developer concerning statements made by the councilman relating to certain commercial building zoning sought by the plaintiff.

Although Hahn and Gaul involved cases withdrawn from the jury by way of a directed verdict, the same basic standard may be applied here to a granting of a motion for summary judgment. As correctly stated in the majority opinion in the court of appeals:

"Appellant conceded in his complaint that appellee made the allegedly defamatory statements 'within the scope of employment.' (Complaint, Item

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37; Amended Complaint, Item 36). Thus, a qualified privilege arose, and it was imperative that appellant show actual malice to defeat the privilege and justify a trial on the merits. Once appellee asserted the defense that its statements were made in good faith, appellant had the burden of showing that appellee acted with actual malice and could not merely rely on allegations in the complaint."

Here, a review of the material before the trial court upon the motion for summary judgment which included the allegations in the complaint and amended complaint, the answer, the exhibits, the interrogatories (sets one and two) and answers thereto, would show that the appellant had not sustained his burden of proof of malice in the publication of such alleged actionable defamations. In such material there was no showing of any ill will, spite, or some ulterior motive on the part of appellee's officers toward this appellant. On the contrary, the materials presented would show that while the appellant's employment performance was at one time quite satisfactory, the situation materially changed occasioning a showing of dissatisfaction on the part of management for such performance.

In support of its position that the determination to remove the appellant from his position of management was based upon a business analysis rather than a motive of ill will, the appellee submitted the following significant answers to the appellant's Interrogatory No. 1 (First Set) and appellant's Interrogatory No. 9 (Second Set):

"ANSWER TO [PLAINTIFF'S]...