Handley v. May

• Decision Date: 06 July 1979
• Citation: 588 S.W.2d 772
• Parties: Helen M. HANDLEY, Plaintiff-Appellant, v. Willie Kate MAY, Defendant-Appellee.
• Court: Tennessee Court of Appeals

Page 772

588 S.W.2d 772

Helen M. HANDLEY, Plaintiff-Appellant, v. Willie Kate MAY, Defendant-Appellee.

Court of Appeals of Tennessee, Eastern Section.

July 6, 1979.

Permission to Appeal Denied by Supreme Court Oct. 22, 1979.

Walter L. Fuller, Jr., Oak Ridge, William A. Young of Cheek, Taylor & Groover, Knoxville, for plaintiff-appellant.

James T. Barry, Jr., St. Louis, Mo., Harry L. Lillard of Lillard & Seivers, Oak Ridge, for defendant-appellee.

OPINION

FRANKS, Judge.

This is an action for slander, presenting on appeal as a principal issue whether the plaintiff, as a matter of law, must plead in his complaint the precise words proved at trial.

The complaint alleges defendant had told one W. A. Jones, Sr., that plaintiff was "a member of organized crime and was acting in consort with other members of organized crime in Knoxville and surrounding communities." Jones' testimony was offered by deposition at the trial and he stated defendant had said to him that "Dan Bectol, who is the manager of Credit Bureau in Knoxville, was connected with the Mafia, and that Helen Handley (plaintiff) was involved in the underworld, too."

At the conclusion of plaintiff's proof, defendant moved for a directed verdict. Relying on Lackey v. Metropolitan Life Ins. Co., 26 Tenn.App. 564, 174 S.W.2d 575 (M.S.1943), the trial court sustained the motion, ruling the failure of plaintiff to prove the exact words alleged in her complaint was fatal.

The evidence establishes that at one time the parties were associated in the business of credit reporting and computer billing and collection of accounts in the Oak Ridge area. The defendant operated the credit bureau and plaintiff supervised the billing and collection operation. Subsequently, the parties separated the operations by swapping stock in the two corporations which had been formed to handle the respective operations with the defendant acquiring total ownership of the credit bureau and plaintiff total ownership of the billing and collecting firm; however, their offices remained in the same building. In 1977, plaintiff entered into an agreement with the operators of a credit bureau in Cleveland, Tennessee, whereby she would establish a credit bureau in Oak Ridge; in the course of establishing the credit reporting service, she entered into an agreement with the Knoxville Credit Bureau which enabled her to obtain credit information from their records. This direct competition with defendant's business resulted in a suit over the use of similar trade names which was recently before this court.

Plaintiff alleged, as a result of this competition, the defendant entered into "a campaign of slander, harassment, and embarrassment calculated to destroy the personal and professional integrity of the plaintiff."

At the trial, the only material evidence offered on this allegation was the testimony of Jones.

The sole assignment of error on appeal is:

The Trial Court erred in granting a directed verdict for appellee on the ground that the offensive words complained of were not alleged verbatim in the complaint and in holding the complaint was fatally defective on that basis.

In the Lackey case relied upon by the trial judge, the Middle Section of this court held: " . . . in an action for libel or slander the exact language of the defamatory statement must be set out in the complaint, . . . " 26 Tenn.App. at 581, 174 S.W.2d at 582. The basis of that holding was derived from prior Tennessee cases which had held that " . . . the words must be proved strictly as alleged; where the proof is of equivalent words or words of similar import, or of words spoken interrogatively when they were alleged to have been spoken affirmatively, the variance is fatal." At p. 580, 174 S.W.2d at p. 582.

The plaintiff insists that the Lackey standard is no longer operative having been superseded by the enactment of the Tennessee Rules of Civil Procedure. In particular, she relies upon Rule 8.01 which states:

8.01. Claims for relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.

Under this standard, the plaintiff maintains the harsh technical requirements of common law pleading have been abrogated. The technical requirement for pleading the exact language under the Lackey rationale was necessary in order:

(T)hat the court may know exactly what the words were so as to be able to judge whether they are actionable; that the defendant may know what he is called on to meet and how to shape his defense, whether by demurring, denying, or justifying; and that the judgment may be so certain that it may be pleaded in bar of another action for the same cause. At p. 581, 174 S.W.2d at p. 582.

This rationale under modern rules of pleading is no longer persuasive. There is no actual necessity that a court have the exact words of an allegedly defamatory statement in order to determine whether or not they are actionable. Slanderous statements in most instances involve imputations of moral turpitude or criminal behavior and, in evaluating whether the statement has subjected an individual to ridicule or degradation in the community, it is the substance of the statement not the form which is significant. Of course, if the complaint is so vague that a court cannot ascertain the nature of the alleged slander, it is insufficient.

Where the substance of the slanderous utterance is pled along with notice of the time and place of the utterance the defendant is apprised of the allegations that he must defend against. To the extent that the circumstances surrounding the utterance are significant, the broad and varied discovery established by the Rules of Civil Procedure provide ample means to ascertain the details of the circumstances. The means of discovery available at the time of the Lackey decision were quite limited and many of the functions of modern discovery were then performed by the system of common law pleading.

In this context, other rules of procedure are pertinent. Rule 9, purports to list matters which must be pleaded with particularity. Included are fraud, mistake, lack of capacity and other matters. No mention of defamation is made in this rule. The advisory committee comment to Rule 9 states that the particularity requirement "is not intended to require lengthy recital of detail. Rather, the Rule means only that general allegations of fraud and mistake are insufficient; the pleader is required to particularize, but by the 'short and plain' statement required by Rule 8.01."

The specific enumerated actions which must be specifically pleaded need not be set out with the kind of precision which Lackey required. This is consistent with the injunction set forth in Rule 1: that the T.R.C.P., "shall be construed to secure the just, speedy and inexpensive determination of every action" and the abolition of technical forms of pleading in favor of "simple, concise and direct" averments contained in 8.05.

Under the common law rules governing pleading, a plaintiff in a slander action was placed in a difficult posture, as illustrated in a statement from Butler v. Stites, 7 Tenn.App. 482, 486 (M.S.1928):

The rule is that in an action for slander, but possibly uncertain what the slanderous words were, the plaintiff may state one set of words in one count and another set in another, and so varying them in as many different ones as he chooses. Then if the evidence established either set of words the plaintiff recovers. (Citations omitted.)

This burdensome, technical and harsh system is at odds with the scheme established by the Tennessee Rules of Civil Procedure. As stated in Altoona Clay Products, Inc. v. Dun & Bradstreet, Inc., 367 F.2d 625 (C.A.3), the court, in evaluating the impact of the Federal Rules of Procedure on pleadings, said:

(T)echnical rules must give way when they come in conflict with our simplified rules of pleading. (Citations omitted.) At p. 629.

The better reasoned approach to the issue was taken in the Michigan case ...