Jacobs v. City of Columbus By and Through Police Dept.

• Decision Date: 18 October 1983
• Docket Number: No. 1-383A69,1-383A69
• Citation: 454 N.E.2d 1253
• Parties: E. Robert JACOBS, Plaintiff-Appellant, v CITY OF COLUMBUS, By and Through its POLICE DEPARTMENT, State of Indiana, by and through its Department of State Police, John Myers, Ronald Chandler and Richard Barker, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 1253

454 N.E.2d 1253

E. Robert JACOBS, Plaintiff-Appellant, v CITY OF COLUMBUS, By and Through its POLICE DEPARTMENT,

State of Indiana, by and through its Department of

State Police, John Myers, Ronald

Chandler and Richard Barker,

Defendants-Appellees.

No. 1-383A69.

Court of Appeals of Indiana,

First District.

Oct. 18, 1983.

Howard S. Young, Jr., Young & Young, Andrew Jacobs, Sr., Indianapolis, for plaintiff-appellant.

Lloyd H. Milliken, Jr., Locke, Reynolds, Boyd & Weisell, Linley E . Pearson, Atty. Gen., Richard E. Hagenmaier, Bruce L. Kamplain, Deputy Atty. Gen., Indianapolis, for defendants-appellees.

NEAL, Judge.

STATEMENT OF THE CASE

Appellant-plaintiff, E. Robert Jacobs (Jacobs), appeals an adverse summary judgment rendered in the Johnson Circuit Court in his suit for defamation against City of Columbus (City), State of Indiana (State), John Myers (Myers), Ronald Chandler (Chandler), and Richard Barker (Barker).

We affirm.

STATEMENT OF THE FACTS

A full statement of summary judgment proceedings consisting of evidentiary material, including depositions, affidavits, interrogatories and exhibits, is necessary for an understanding of the relatively narrow issues on appeal. Upon the completion of his assistance in morning surgery at the Bartholomew County Hospital in Columbus on February 4, 1977, anesthesiologist Dr. Griffith Marr, a member of the hospital medical staff, commenced eating his lunch of fish and peas in the surgeons' lounge near the operating room. The food, covered by a metal lid bearing his name on a tape, was brought at his direction by an aide from the hospital cafeteria and placed along with lunches of other doctors in an autoclave to be kept warm. Although he was aware, when he commenced to eat, of a white powdery substance on the peas which he assumed to be seasoning, after two or three bites he belatedly perceived that the peas bore an unpleasant, strange metallic taste. Alarmed that the food was contaminated with some harmful substance, he hastened to the washroom and induced vomiting. Nevertheless, he became ill and was unable to complete afternoon surgery. After hospitalization for 48 hours, he was able to return home. While analysis of the food revealed the presence of aconitine, a deadly poison not stocked at the hospital, no trace of the poison was found in the analysis performed on Marr's blood and urine. Although Marr, in his deposition, could not remember making such an accusation, the Indianapolis Star carried a news story stating that Marr exclaimed, "Jake finally got me". Jacobs, a staff surgeon at the hospital, was frequently referred to by the sobriquet "Jake".

Several weeks prior to the Marr poisoning, Dr. Larry Wilhite, also an anesthesiologist Upon request by the hospital, an investigation into the Marr poisoning was commenced by Indiana State Police Officer Ronald Chandler; later, Indiana State Police Officer Richard Barker and Columbus Police Officer John Myers joined the investigation. Eventually, the Bartholomew County Prosecuting Attorney, Richard Donnelly, contributed the resources of his office, and because of the grave implications, the hospital trustees appropriated money to aid in the cost of the investigation.

and a member of the medical staff, suffered strange mood-changing sensations in the hospital which were suspected to be the result of the ingestion of a hallucinogenic drug placed in his food or drink by another anesthesiologist, Dr. Lindley Gammell, also a member of the hospital medical staff. Patricia Stillwell, then a surgical nurse at the hospital, admitted purchasing such a hallucinogenic drug, purple mescaline, from undisclosed underworld sources at Gammell's request and giving it to Gammell.

Inasmuch as the food was accessible to tampering by many people, a large number of the hospital employees, former hospital employees, and members of the medical staff, including Marr and Jacobs, were interrogated and given polygraph tests. All persons were suspect, and yet there was no particular suspect. The investigators naturally focused their efforts upon the interrelation among persons associated with the hospital. In the course of the investigation, the officers discovered a 1970-72 alleged conspiracy between Gammell and Jean Girone, a surgical nurse, to murder her husband, Tony, an electrician. Gammell and Girone, both married, were having an affair, and during that time Girone, the mother of three and under psychiatric care for mental and emotional illness, attempted suicide twice. Jacobs, a reputed close professional associate of Gammell, treated her on both occasions. These investigations thereafter proceeded somewhat together, and several of the same dramatis personae occasionally wandered in and out of both cases. An indictment was obtained against Gammell for attempted tampering and bribery.

Rumor and gossip abounded, and a number of the stories found their way into the news media. One such story recounted a professional quarrel in the medical staff existing between a faction composed of Jacobs and Gammell and another faction composed of other physicians, surgeons and anesthesiologists. Marr and Wilhite were included in the latter group.

In addition to the standard gossip and rumors of affairs, triangles, professional jealousies, and mindless bickering existing among the employees and the medical staff of the hospital, Officer Myers testified in deposition that he was privy to a rumor obtained from a fellow officer, Billie Keith Monroe, that Jacobs had homosexual tendencies. In particular, Monroe related that a girl with second or third-hand knowledge told him that Jacobs was found in bed with one Roger Johnson in Jacobs' apartment. Johnson was a salesman of emergency vehicle equipment, a township trustee, a rumored associate of Jacobs in a tavern known as the Office Lounge, and a security officer at the hospital at the time of the poisoning. Since the officers were examining the interrelation among persons associated with the hospital, this information, of course, was of some interest. It was in this sullied ambience, described by one media as "a bizarre mystery--rivaling any soap opera", that the officers plied their thankless trade, and the alleged defamation occurred during the course of that investigation.

The amended complaint stated five separate instances of alleged defamation, each in a separate count.

Count I charged defamation of Jacobs by Myers on October 7, 1978, during an interview with Pamela Stillwell in San Diego about the two cases wherein Myers allegedly said "Dr. Jacobs and Roger Johnson were having a homosexual affair, and Dr. Jacobs played the male role ." The alleged statement was not part of the taped interview or the formal statement made by Stillwell. The deposition of Stillwell recites that Myers had asked her about her knowledge of the relationship between Jacobs and Count II charges defamation by Myers on October 10, 1978, in an interview with Jean Girone in Murfreesboro, Tennessee. As in the Stillwell interview, the alleged defamatory statement was not part of the taped interview or formal statement. The alleged defamatory imputation was that Myers and Chandler stated to Girone that Jacobs was "A/C-D/C", which in street argot refers to being both homosexual and heterosexual. During her deposition, for which legal counsel was recompensed by Jacobs, Girone admitted that the officers interviewed her concerning events in the Marr and Gammell investigations and inquired about many persons at the hospital, including employees, Jacobs, Marr, and other members of the medical staff. She stated that she was unsure how the subject of Jacobs' sexual preference came up or whether the alleged defamatory words were used by Myers in the form of a statement or as a question. The officers' version of the incident, as recorded in their depositions, states that they merely asked Girone about the relationship but made no accusations. Later, Pamela Stillwell called Girone, at Gammell's request, to assure her that she, Stillwell, did not have an affair with Gammell. In that conversation, she informed Girone of her interview with the officers. Girone then told Gammell of her own conversation with the police, and Gammell told Jacobs.

Johnson, and she said she did not know of it. She stated that at that point Myers made the alleged defamatory statement. Myers' version, in his deposition, was that he was merely questioning her. Jacobs was also Stillwell's physician, and she later called his office concerning her ailment. She then relayed the above alleged defamatory statement to a nurse, Sandy Royer, who in turn, informed Jacobs.

Count III concerns a statement reputedly made by Barker to Roger Johnson at a meeting to discuss the Marr case. Johnson's affidavit states that Barker said:

"Well, we have got Dr. Gammell and we are going to get Dr. Jacobs too. I (Johnson) asked if Dr. Jacobs was a suspect in the Marr case. He replied "no, but he is dirty and we have got him and his girlfriend on a felony. I (Johnson) believe he said drug felony and they are both going to jail."

Johnson stated that he promptly told Jacobs of the discussion. Barker categorically denied the statement and stated in his deposition that the alleged statement grew out of an interview with Johnson about the Marr case in which Johnson was asked to take a polygraph test.

In Count IV, Jacobs alleges that Barker, on December 15, 1978, stated to Sheriff McKinney of Bartholomew County,

"Oh Jesus Christ, are we going to take Dr. Jacobs down--he is guilty of a felony and he is selling drugs out of his office and he is going to jail."

The allegation is supported by McKinney's affidavit. Barker in his deposition said that he and the Sheriff were talking about the investigation on the day Gammell was indicted. The Sheriff stated that Jacobs was his friend. Barker replied that "... if Jacobs was dirty he would be arrested like anyone else". He was not...