Mosrie v. Trussell

• Decision Date: 05 October 1983
• Docket Number: No. 82-1478.,82-1478.
• Citation: 467 A.2d 475
• Parties: Arif H. MOSRIE, Appellant, v. William C. TRUSSELL, Appellee.
• Court: D.C. Court of Appeals

Page 475

467 A.2d 475

Arif H. MOSRIE, Appellant, v. William C. TRUSSELL, Appellee.

No. 82-1478.

District of Columbia Court of Appeals.

Submitted July 7, 1983.

Decided October 5, 1983.

Axel Kleiboemer, Washington, D.C., was on the brief for appellant.

No appearance was entered for appellee.

Before NEWMAN, Chief Judge, and KERN, Associate Judge, and REILLY, Chief Judge, Retired.

KERN, Associate Judge:

This is an appeal from a libel and slander action tried to a jury for four days. At the close of plaintiff Arif H. Mosrie's case, the judge directed a verdict for defendant William C. Trussell. The plaintiff appeals. We affirm.

The facts are that in the Spring of 1979 Trussell, as a Deputy Chief of Police, was the commanding officer of the Criminal InvestiXgation Division of the Metropolitan Police Department. Mosrie, a captain, commanded the Homicide Branch. Thus, Trussell was Mosrie's immediate supervisor.

In early May various members of the Homicide Branch compiled a list of complaints against Trussell. The list alleged that Trussell improperly interfered in various homicide investigations and attributed to him a racist remark. These complaints were reported in the Washington Post on May 6, 1979, and are the subject of another lawsuit. Trussell v. The Washington Post Company, et al., Civ.Act. No. 5792-80. After the news article, the Chief of Police requested Trussell to submit a written reply to the complaints and empaneled a board (the Board) to investigate the allegations. The Friday before his scheduled Monday appearance before the Board, Trussell gave the Chief of Police a memorandum reflecting claims allegedly made by an anonymous phone caller that Mosrie used his government vehicle for private business purposes and conducted private business on police department time. Trussl asked for an investigation of Mosrie by the Internal Affairs Division.

In both his oral and written presentation to the Board and the Chief, the defendant made various alleged defamatory statements about the plaintiff which are the subject of this suit. He stated that Mosrie was derelict in his duties as Commander of the Homicide Branch, and that he suspected him of criminal abuses. Specifically, he suspected Mosrie of manipulating his pay records, running his outside businesses on police time, using his police cruiser for personal business; and, that he was often absent from work, did not respond to investigations after normal working hours and was not adequately informed as to homicide investigations.

The cause of action is based on Trussell's oral and written statements to the Board and the Chief regarding Mosrie's alleged dereliction of duty and possible criminal abuses, and a memorandum to the Director of the Internal Affairs Division encouraging an expanded investigation of Mosrie and other members of the Homicide Branch. It is conceded by both parties that Trussell enjoys a qualified privilege as to each alleged defamation. The communications were made upon a subject matter "in which the party communicating has an interest or in reference to which he has, or honestly believes he has, a duty to a person having a corresponding interest or duty . . ." Smith v. District of Columbia, 399 A.2d 213 (D.C.1979), quoting May Department Stores Company v. Devercelli, 314 A.2d 767 (D.C.1973). Specifically, communications concerning alleged misconduct of a police officer to his superior are entitled to a qualified privilege. Sowder v. Nolan, 125 A.2d 52 (D.C.1956). An additional basis for the qualified privilege is self defense. Dickens v. International Brotherhood, etc., 84 U.S.App.D.C. 51, 171 F.2d 21 (1948).

The qualified privilege is a complete defense to libel, but the defense is lost by the showing of malice. Altimont, Inc. v. Chatelain, 374 A.2d 284 (D.C.1977); Ford Motor Credit Company v. Holland, 367 A.2d 1311 (D.C.1977); Roland v. d'Arazien, 222 U.S.App.D.C. 203, 685 F.2d 653 (1982). Additionally, while the existence of the privilege is a question of law for the court, whether it was abused by the defendant, is a question of fact for the jury. Altimont v. Chatelain, supra; Roland v. d'Arazien, supra. The burden of proof is on the plaintiff, appellant here. Altimont v. Chatelain, supra; Potts v. Dies, 77 U.S.App.D.C. 92, 132 F.2d 734 (1942), cert. denied, 319 U.S. 762, 63 S.Ct. 1316, 87 L.Ed. 1713 (1943).

In the context of a qualified privilege, the definitions of malice "in substance come down to the equivalent of bad faith." Ford Motor Credit Company v. Holland, supra, 367 A.2d at 1314, quoting H.E. Crawford Co. v. Dun & Bradstreet, Inc., 241 F.2d 387, 395 (4th Cir.1957); Altimont, Inc. v. Chatelain, supra, 374 A.2d at 290. It is

the doing of an act without just cause or excuse, with such a conscious indifference or reckless disregard as to its results or effects upon the rights or feelings of others as to constitute ill will. [Dun & Bradstreet, Inc. v. Robinson, 233 Ark. 168, 345 S.W.2d 34, 38 (1961).]

Id.; Ford Motor Credit Company v. Holland, supra. Put another way, a qualified privilege exists only if the publisher believes, with reasonable grounds, that his statement is true. Altimont v. Chatelain, supra; Afro-American Publishing Co., Inc. v. Jaffe, 125 U.S.App.D.C. 70, 77, 366 F.2d 649, 656 (1966).

It is important to note that the mere existence of ill will on the part of the publisher toward the subject of the publication does not defeat the publisher's privilege if the privilege is otherwise established by the occasion and a proper purpose. W. PROSSER, HANDBOOK OF THE LAW OF TORTS, 794 (4th ed. 1971); see Altimont v. Chatelain, supra. The court looks to the primary motive by which the defendant is apparently inspired; and, the fact that he feels resentment and indignation towards the plaintiff and enjoys defaming him will not forfeit the privilege so long as the primary purpose is to further the interest which is entitled to protection. W. PROSSER, supra at 794-95; see Altimont v. Chatelain, supra; Dickins v. International Brotherhood, etc., supra. Significantly,

if the language of the communication and the circumstances attending its publication by the defendant are as consistent with the non-existence of malice as with its existence, there is no issue for the jury, and it is the duty of the trial court to direct a verdict for the defendant.

National Disabled Soldiers' League, Inc. v. Haan, 55 App.D.C. 243, 248-49, 4 F.2d 436, 441-42 (1925). Altimont v. Chatelain, supra; Dickins v. International Brotherhood, etc., supra.

Here, there is evidence that Trussell's communications were inspired by resentment and indignation at Mosrie and others in the Homicide Branch. He admits that he suspected Mosrie of being the instigator of the complaint against him and of being the source of the Washington Post article. Mosrie argues that the memorandum by Trussell based on the anonymous phone call and requesting an investigation of Mosrie is evidence of malice.¹ Trussell arguably showed resentment when he submitted the memo to the Chief of Police rather than the head of Internal Affairs as was the custom in the Department. On the other hand, the Chief was already involved in the dispute between some members of the Homicide Branch and Trussell. Any finding of malice would be based only on speculation, which is not sufficient to send the issue to the jury. Fisher v. Washington Post Co., 212 A.2d 335 (D.C.1965).

Trussell arguably made two reckless comments to the Board. First, he stated to the Board that one of his accusers had killed another man after the two had been "guzzling" in a tavern for a couple of hours. The evidence establishes that the reference was to Mosrie, who while a member of the force, had killed a man in self defense outside a bar. This statement was arguably made in reckless disregard for the truth because Trussell admits that he knew that the killing must have been justified because otherwise Mosrie would be in jail rather than a captain on the police force. However, Trussell never identified Mosrie, among his several accusers, to the Board as the person involved in the shooting, and the record does not show whether any of the listeners, i.e., the Board members, understood Trussell to mean Mosrie. Plaintiff is not suing for damages based on this statement and, by failing to show that a listener understood the remark as a reference to him, he did not establish a cause of action. See W. PROSSER, supra at 749.

Also, this statement must be considered in context. In his deposition Trussell explained that:

I did not identify your client [Mosrie] and the purpose was to get this Inquiry Board...