Luttrell v. United Telephone System, Inc.

• Decision Date: 19 July 1984
• Docket Number: No. 56031,56031
• Parties: , 47 A.L.R.4th 669 Marvin G. LUTTRELL, Appellant, v. UNITED TELEPHONE SYSTEM, INC., Appellee.
• Court: Kansas Court of Appeals

Page 1292

683 P.2d 1292

9 Kan.App.2d 620, 47 A.L.R.4th 669

Marvin G. LUTTRELL, Appellant, v. UNITED TELEPHONE SYSTEM, INC., Appellee.

No. 56031.

Court of Appeals of Kansas.

July 19, 1984.

Review Granted Sept. 6, 1984.

Syllabus by the Court

Remarks made in the course and scope of employment by one corporate employee and communicated to a second corporate employee concerning the job performance of a third employee constitute publication for the purposes of a defamation action against the corporate employer.

Richard M. Smith of Smith & Winter-Smith, Mound City, for appellant.

Paul Hasty, Jr. of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, for appellee.

Before FOTH, C.J., and PARKS and SWINEHART, JJ.

PARKS, Judge:

Plaintiff Marvin G. Luttrell appeals the dismissal of his defamation action against the defendant, United Telephone System, Inc.

Plaintiff alleges in his petition that several managerial employees of defendant maliciously communicated defamatory remarks about him between themselves while acting within the scope of their employment. Particularly, he alleges that on or about April 6 or 7 of 1982, Mr. R.H. Baranek, an employee of defendant, stated to Mr. R.L. Flint, plaintiff's supervisor, that plaintiff was illegally taping telephone conversations on April 1 and that Baranek had requested him to stop but plaintiff persisted in this illegal activity the rest of the afternoon despite the direct order given him to stop by his supervisor. He further alleged that the communication of the same defamatory information was made by Mr. Flint to Mr. T.V. Tregenza and by Mr. Tregenza to Mr. W. Soble, all while acting within the scope of their employment. Defendant filed a motion to dismiss pursuant to K.S.A. 60-212(b)(6) on the grounds that intracorporate communications did not constitute "publication." The trial court sustained the motion to dismiss for failure to state a claim upon which relief may be granted.

The tort of defamation includes both libel and slander. The elements of the wrong include false and defamatory words (Hein v. Lacy, 228 Kan. 249, 259, 616 P.2d 277 [1980] communicated to a third person (Schulze v. Coykendall, 218 Kan. 653, 657, 545 P.2d 392 [1976] which result in harm to the reputation of the person defamed. Gobin v. Globe Publishing Co., 232 Kan. 1, 6, 649 P.2d 1239 (1982) (Gobin III ). A corporation may be liable for the defamatory utterances of its agent which are made while acting within the scope of his authority. Bourn v. State Bank, 116 Kan. 231, 235, 226 P. 769 (1924).

In this case, the defendant argued and the district court agreed that there can be no communication to a third person, or "publication," when the defamatory words are exchanged by agents of a single corporate defendant. This issue of first impression is more precisely whether interoffice communications between supervisory employees of a corporation, acting within the scope and course of their employment, regarding the work of another employee of the corporation, constitute publication to a third person sufficient for a defamation action.

There is a considerable division of authority concerning this issue. For example, courts recently considering the laws of Nevada, Missouri, Arkansas, Georgia and Louisiana have all accepted the assertion that intracorporate defamation is simply the corporation talking to itself and not publication. See e.g., Jones v. Golden Spike Corp., 97 Nev. 24, 623 P.2d 970 (1981); Ellis v. Jewish Hospital of St. Louis, 581 S.W.2d 850 (Mo.App.1979); Halsell v. Kimberly-Clark Corp., 683 F.2d 285 (8th Cir.1982); Monahan v. Sims, 163 Ga.App. 354, 294 S.E.2d 548 (1982); Commercial Union Ins. Co. v. Melikyan, 424 So.2d 1114 (La.App.1982). The contrary conclusion has been reached in courts applying the laws of Kentucky, Massachusetts, New York and California. See e.g., Brewer v. American Nat. Ins. Co., 636 F.2d 150 (6th Cir.1980); Arsenault v. Allegheny Airlines, Inc., 485 F.Supp. 1373 (D.Mass.), aff'd 636 F.2d 1199 (1st Cir.1980); Pirre v. Printing Developments, Inc., 468 F.Supp. 1028 (S.D.N.Y.), aff'd 614 F.2d 1290 (2d Cir.1979); Kelly v. General Telephone Co., 136 Cal.App.3d 278, 186 Cal.Rptr. 184 (1982). The latter opinions have held that while communications between supervisory employees of a corporation concerning a third employee may be qualifiedly privileged, they are still publication. Prosser also favors the view that such communications are publication and dismisses those cases holding otherwise as confusing publication with privilege. Prosser, Law of Torts § 113, p. 767 n. 70 (4th ed. 1971).

Undeniably, the district court's holding in this case is not without support or technical appeal; however, we believe it ignores the nature of the civil injury sought to be protected in a defamation action. Damage to one's reputation is the essence and gravamen of an action for defamation. It is...