Poledna v. Bendix Aviation Corp.

• Decision Date: 06 June 1960
• Docket Number: J,No. 26,26
• Citation: 360 Mich. 129,103 N.W.2d 789
• Parties: Robert POLEDNA, Plaintiff and Appellee, v. BENDIX AVIATION CORPORATION and Walter Bare, Defendants and Appellants. anuary Term.
• Court: Michigan Supreme Court

Page 789

103 N.W.2d 789

360 Mich. 129

Robert POLEDNA, Plaintiff and Appellee, v. BENDIX AVIATION CORPORATION and Walter Bare, Defendants and Appellants.

No. 26, January Term.

Supreme Court of Michigan.

June 6, 1960.

Alexander, Cholette, Buchanan, Perkins & Conklin, Grand Rapids (Don V. Souter, Grand Papids, of counsel), for appellants.

Donald J. Dick, Robert S. Feldman, Henry W. Gleiss, Berrien Springs, of counsel, for appellee.

Before the Entire Bench.

EDWARDS, Justice.

Plaintiff Robert Poledna brought a libel and slander action against defendants Bendix Aviation Corporation and Walter Bare for certain allegations of theft made against him. After trial before Berrien county circuit court, the jury returned a verdict of $10,000 'past damage' and $2,500 'punitive' damage. The trial judge denied motions for judgment non obstante veredicto and new trial, and entered judgment.

Defendants appeal claiming various errors in relation to the judge's charge, that the jury award of damages was not supported by any testimony, and that defendant corporation may not be held responsible for slander by an employee. There is no cross appeal.

The action was occasioned by the circumstances of plaintiff's discharge from the employment of defendant Bendix Aviation Corporation by defendant Walter Bare, at that time the employment manager for Bendix' plant at St. Joseph, Michigan. Plaintiff, then 18 years old, had been hired at Bendix in March of 1953. He was discharged at about 10 o'clock in the morning of August 12, 1953, for 'sleeping on the job and theft.' Suit was started by summons January 25, 1957, within one year after plaintiff became 21.

There is considerable dispute in this record about the events which led to the discharge in 1953. Plaintiff's version of the episode was that he was called to the personnel office on the morning in question and told by defendant Bare that there had been complaints of sleeping on the job made against him, and that he was fired. Plaintiff claimed that he then asserted that the contract called for a three-day lay-off for the offense named, rather than discharge.

Plaintiff testified that Bare responded to this by saying, 'Well, if you want to fight it you go on back to work and I will find some way to get you out of here today.' Plaintiff claimed he went back to work and then was recalled to the personnel office. He describes the events which followed his approaching the office in the following testimony:

'A, Well, as I started up there I took my apron off again and rolled the rags up in it. I believe I had a wrench in my hand and a screwdriver in my pocket, and I got just about to the time clock, or maybe I had gone past it, and Mr. Bare stepped out of that tallway there and asked me where I was going. I told him I was going into his office.

'Q. This spot that you are describing then is the time clock right about here, is that right (indicating)? A. Yes, sir.

'Q. Do you have any idea how far it is from that entrance down here? A. Oh, I would say between 10 and 15 feet.

'Q. But approximately the same distance it is from this corner of the office to the guard's desk? A. Approximately, yes.

'Q. So as you came he met you at about this point? A. That's right.

'Q. Did it appear that he came from around this corner? A. Yes.

'Q. What did he say, if anything? A. He says, 'Where are you going?' I said 'I'm going into your office,' and he said, 'Well, you were trying to leave with your tools,' and I told him I wasn't trying to leave with them. He says, 'I have no alternative but to fire you for theft.''

The tools referred to were small hand tools which plaintiff was required to use on his job and which he had checked out of the plant tool crib.

Defendant Bare's version of the episode is substantially different. He testified to calling plaintiff to his office and notifying him of the sleeping on the job complaint, and that 'I am going to have to let you go.' He also claimed that he then offered to let plaintiff quit rather than have a discharge for sleeping on the job on his record, and that plaintiff accepted the offer and 'cleared with the tool crib.' Bare claimed that plaintiff left to see his steward, and later came back to the vicinity of the employment office and got into an argument with his foreman. Thereupon, Bare went from the office into the hallway and told plaintiff to leave. As plaintiff started to leave, Bare testified that he noticed his shop apron rolled up under his arm and called him back. His testimony continued:

'Q. I said, 'What have you got in that apron?' He said, 'Nothing, Mr. Bare.' Then I said, 'You don't mind opening it, do you? He had a dazed look.

'Q. Who opened the apron? A. I did. We walked over to the guard's desk and I said, 'Let me have it.' He laid it on the guard's desk. I opened it, and there were shop rags and tools in there.

'Q. His tools were inside the apron? A. Yes.

'Q. What happened then? A. I said, 'Now I have got no alternative. It's not a quit. You are fired, and you are fired for sleeping in the job and for theft."

No police complaint or criminal charges were ever initiated in the matter.

It is undisputed that at the time of the discharge there were other employees in the immediate vicinity, and that news of plaintiff's discharge for theft was related in the plant. Defendant Bendix subsequently filed a written report on the discharge with the Michigan employment security commission (keeping a file copy itself), relating the cause of his discharge as sleeping on the job and theft. This report was required by statute (C.L.S. 1956, § 421.13 [Stat.Ann. 1950 Rev. 1959 Cum.Supp. § 17.513]). Another section of the same statute (C.L.S. 1956, § 421.11 [Stat.Ann. 1950, Rev. 1959 Cum.Supp. § 17.511]) granted an absolute privilege to the report.

No other publications of the claimed libel or slander were pleaded or proved. The trial judge charged the jury that there was 'no question of libel involved in this case,' and submitted the case on plaintiffs' claim of slander under the disputed facts which we have detailed.

On the question of damages, plaintiff testified to considerable difficulty in securing employment in the years which followed his discharge at Bendix. In several instances he testified to being interviewed and refused employment without any explanation, and in one instance the same Bendix plant started to hire him but found his previous record and refused to do so. A summary of wage figures indicated that for the subsequent five years he had made approximately $2,000 less per year than he would have made if he had continued in full-time employment at Bendix. There is no testimony, however, which directly ties the job refusals testified to by plaintiff to the claimed slander with which we are concerned on this appeal.

Appellants' claims of error are directed first at the lack of proof of causal relationship between plaintiff's proofs as to his subsequent employment difficulties and the claimed slander. Secondarily, appellants claim that the court erred in his charge by instructing the jury that defendant corporation was responsible for the acts of its personnel officer, Bare. Finally, appellants object to the judge's charge (or failure to charge as requested) on questions of qualified privilege, punitive damages and malice.

The jury verdict on this record must be read as a finding that the charge of theft was false. The record offers testimony from which they could have made this finding. Further, the charge of theft, if false, is certainly actionable per se. Bacon v. Michigan Central R. Co., 55 Mich. 224, 21 N.W. 324; Schattler v. Daily Herald Co., 162 Mich. 115, 127 N.W. 42. The trial judge, however, ruled out general damages in his charge and charged only on special and punitive damage. This may well have been error (See C.L.1948, § 620.21 [Stat.Ann § 27.1371]). But, as we have mentioned, plaintiff brings no cross appeal as to this charge.

Ten thousand dollars of the jury award was made in terms of 'past damage.' Under the charge and this record, this $10,000 portion of the verdict can only be viewed as special damages. The only publication of claimed libel or slander which was pleaded, proved, or submitted to the jury was represented by the previously quoted words of defendant Bare, spoken in the hallway outside the employment office. There is testimony from which it can be inferred that the charge of theft contained therein was overheard by other employees of the company who had no responsibility as to personnel matters. But there is not a line of testimony which establishes that this statement was heard by (or ever conveyed to) any of those from whom plaintiff subsequently sought work. Appellee suggests that we indulge an inference of causal relationship from the facts 1) that the slander happened; and 2) that plaintiff subsequently had difficulty in procuring desirable employment. Much as we recognize the difficulty of proof confronting plaintiff, we are forced to conclude that the $10,000 'past damage' figure contained in the jury award was speculation on speculation. Neither the jury nor we have any way of knowing what role in his subsequent employment difficulties was played by the unavailability of jobs, the lack of skills on the part of plaintiff, the record of his discharge for sleeping, his own references to the discharge, or the report of the theft charge made to the Michigan employment security commission which by statute was granted absolute privilege.

In Kaminski v. Grand Trunk Western R. Co., 347 Mich. 417, 422, 79 N.W.2d 899, 901, this Court adopted the following definition of 'conjecture':

'As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be two or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective...