Ramacciotti v. Zinn

• Decision Date: 19 April 1977
• Docket Number: No. 37936,37936
• Citation: 550 S.W.2d 217
• Parties: William RAMACCIOTTI, Plaintiff-Respondent, v. Fred ZINN, Defendant-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 217

550 S.W.2d 217

William RAMACCIOTTI, Plaintiff-Respondent, v. Fred ZINN, Defendant-Appellant.

No. 37936.

Missouri Court of Appeals, St. Louis District, Division Two.

April 19, 1977.

Phillip E. Fishman, University City, for defendant-appellant.

Cook, Murphy, Lance & Mayer, Daniel J. Murphy, St. Louis, for plaintiff-respondent.

McMILLIAN, Presiding Judge.

Defendant appeals from a jury verdict awarding plaintiff $10,000 in actual and punitive damages on plaintiff's four-count libel and slander action. The suit originally contained five counts but plaintiff voluntarily dismissed Count II. Count I was based on an allegedly defamatory memoranda; Counts III, IV and V involved allegedly slanderous incidents. Recovery on defendant's counterclaim, premised on slander of defendant by plaintiff, was denied by the jury.

On appeal, defendant contends that the trial judge should have directed a verdict for defendant on Count I at the close of plaintiff's evidence because: (1) plaintiff failed to prove publication of the memorandum which forms the basis of Count I; (2) the contents of the memorandum were substantially true; (3) defendant had an absolute privilege to forward an internal communication containing information critical of a subordinate to another city official, and (4) the contents of the memorandum should at least to qualifiedly privileged and no malice was shown. In addition, defendant claims entitlement to a directed verdict on Counts III, IV and V of plaintiff's petition, the slander counts, on the ground that the statements were not actionable per se and that plaintiff failed to prove publication of the allegedly slanderous statement. Defendant further asserts on a variety of grounds, that the jury verdict was excessive. Finally, defendant contends that error in the verdict director as to Count I necessitates a new trial.

We agree with defendant that the error in the verdict director mandates a new trial, but reject all of defendant's arguments as to the propriety of a directed verdict.

During the pendency of this appeal, defendant Fred Zinn died and his wife, the executrix of his estate, was substituted as a party.

At the time of trial in January, 1975, plaintiff Ramacciotti had been a police officer for the City of Webster Groves for ten and one-half years and had held the rank of sergeant for five and one-half years. There was some testimony that plaintiff had a general reputation of questioning the orders of superiors. At the same time, Ramacciotti had received eleven commendations during his period of service. Defendant Zinn had been with the Webster Groves Police Department since 1948 and was Chief of Police from 1964 to 1974.

As of July 1973, the only detrimental information that Zinn knew about Ramacciotti was that ". . . he was a loner and Captain Potthoff and Colonel Kuhlmann had advised me prior to that that he constantly questioned orders . . . (t)hey implied . . . that he was obstructionary. . . . " Nevertheless, early in July of 1973, Zinn offered Ramacciotti a promotion to lieutenant. Ramacciotti told Zinn that he could not accept the promotion because he intended to leave the department in the near future. At trial, however, Ramacciotti testified that his real reason for refusing the promotion was certain conditions placed on the promotion by Zinn. Allegedly, Zinn suggested to Ramacciotti that as a lieutenant he would be in a position to gather information on a certain captain whose dismissal Zinn felt was warranted. Zinn contended that if any such proposition was made it was only intended in terms of acquiring information to assist this captain in improving efficiency and morale.

On July 16, 1973, Zinn inserted a memo into Ramacciotti's personnel file noting Ramacciotti's rejection of the promotion and the reasons stated for the refusal and ". . . suggesting that Sgt. Ramacciotti seperate (sic) from this Dept through Voluntary Resignation in the best interest of Dept efficiency." Zinn did admit that he was disappointed that Ramacciotti refused the promotion.

On the same day, Ramacciotti met informally with Kenneth Thein, a member of the Police Advisory Board. Ramacciotti advised Thein of the proposition and the conversations he had had with Zinn regarding the promotion to lieutenant. As directed by Thein, Ramacciotti later submitted his grievances against Zinn in writing to be forwarded to the City Manager and the Police Advisory Board. Sometime shortly after July 16, 1973, Zinn went to Thein and requested a copy of Ramacciotti's complaint. Thein refused to give Zinn a copy of the complaint.

On September 15, 1973, on Zinn's recommendation, Ramacciotti was demoted to the rank of patrolman for failure to follow the Webster Groves Police Department chain of command by filing his grievance with the Police Advisory Board.

On September 16, 1973, at a squad meeting for Ramacciotti's shift, the incident occurred which formed the basis of Zinn's counterclaim. Zinn contends that Ramacciotti made a slanderous statement to others present at the meeting as to Zinn being under investigation by the FBI for misappropriation of federal funds. Ramacciotti and his witnesses testified that he merely asked a question to clarify a rumor that Zinn was under FBI investigation. Ramacciotti claimed that Thein had related this rumor to him. Thein denied this.

Approximately an hour after the squad meeting, Ramacciotti was summoned to Zinn's office. Zinn said that he called Ramacciotti to his office to clarify the situation about the statement in the squad meeting. Ramacciotti refused to enter Zinn's office unless accompanied by a witness of his choice to guard against the possibility of misquotation. Zinn then issued a direct order to Ramacciotti to enter the office or face immediate suspension for an indefinite period. Ramacciotti refused to comply with the direct order and was immediately suspended.

Ramacciotti appealed the September 15 demotion and the September 16 suspension to the Webster Groves Personnel Board. Zinn testified at the hearing. On November 24, 1973, the Personnel Board reinstated Ramacciotti to the rank of sergeant finding that:

"The fact that he did, in this instance, go outside the chain of command to seek assistance in resolving a complaint which he had against his department head might be interpreted as insubordination. However, the Board feels that his action was the result of the lack of clear-cut procedures for handling this type of complaint rather than insubordination."

The Personnel Board also apparently considered the issue of Ramacciotti's September 16 suspension and found a two-month suspension warranted.

Under procedures of the City of Webster Groves, determinations of the Personnel Board are reviewed by the City Manager who may either accept the Personnel Board's recommendations or make an independent determination. On October 29, 1973, before City Manager Siems had made his decision, Zinn prepared a memorandum which forms the basis of Count I of Ramacciotti's petition. The memorandum stated that:

"October 29, 1973

"To: Fred Siems, Acting City Manager

From: Fred L. Zinn, Chief of Police

Subject: Ptn. William Ramacciotti

"Sir:

This memorandum has been prepared to bring to light certain facts that were deliberately withheld at the appeal on the part of Ptn. Ramacciotti for reinstatement, before the Board of Personnel.

"The facts contained herein were withheld to protect the City Council, the City Manager and the Police Department from adverse publicity through the news media. Preoccupation in my normal duties have precluded my noting exact times and dates of unpleasant behavior on the part of police officers; hence, the information forwarded here alludes to Ptn. Ramacciotti's attitude and insolent behavior over the past several years.

"Item: Lt. E. R. Potthoff, retired, complained repeatedly that Ptn. Ramacciotti's attitude was consistently arrogant and insolent.

"Item: Lt. Col. Henry Kuhlmann complained that Ptn. Ramacciotti continually questioned supervisors as to the appropriateness of assignments.

"Item: Major Clyde Wallace has complained that Ptn. Ramacciotti was, at least on one occasion, out of uniform, and wore a firearm that was not acceptable to the chief's office, even after having been advised not to wear weapons of that character.

"Item: Major James E. Scavatta stated that Ptn. Ramacciotti was a trouble maker within the department as he was vicious and treacherous.

"Item: Capt. Earl Reiner asked that Ptn. Ramacciotti be assigned to units other than that unit under Capt. Reiner's command. Capt. Reiner stated that from his personal observations, Ptn. Ramacciotti was arrogant overly critical of Department policies and programs, and was, in fact, a dissident.

"Item: Mr. William Symes complained to the Chief of Police that Ptn. Ramacciotti appeared before an executive meeting of the City Council and appeared arrogant and through his (Ramacciotti's) dialogue, attempted to speak "down" to the Council.

"Item: Lt. Det. Jack V. Crittendon complained that he had suggested to Ptn. Ramacciotti that the Department's telephone and radio recording tapes were out and should be replaced, and he, Ramacciotti, said 'fuck you and fuck the tapes, too.'

"Item: Lt. Delmont Reinemer complained that Ramacciotti insulted him in public saying in presence of others, 'What are you Zinn's butt boy?'

"Item: Chief Fred L. Zinn has on at least 12 occasions attempted to discuss this and other matters with Ramacciotti in an attempt to get to the bottom of his problems, and on each of these occasions Ramacciotti refused to discuss the matter.

"Item: Lt. David Westbrook stated that Ramacciotti openly and in the presence of other officers stated, 'the FBI is investigating Chief Fred Zinn for misappropriating federal funds.' Ramacciotti was given direct orders on three straight occasions to enter the police chief's office and discuss this matter and refused to comply with these...