Ranous v. Hughes

• Decision Date: 12 April 1966
• Citation: 141 N.W.2d 251,30 Wis.2d 452
• Parties: Dorothy D. RANOUS, Respondent, v. Robert L. HUGHES, Appellant.
• Court: Wisconsin Supreme Court

Page 251

141 N.W.2d 251

30 Wis.2d 452

Dorothy D. RANOUS, Respondent, v. Robert L. HUGHES, Appellant.

Supreme Court of Wisconsin.

April 12, 1966.

Milo G. Flaten, Huiskamp, Brewster & Flaten, Madison, for appellant.

La Follette, Sinykin, Anderson, Davis & Abrahamson, Madison, A. Roy Anderson, Madison, of counsel, for respondent.

CURRIE, Chief Justice.

Appellant defendant contends that it was error not to have granted his motion for summary judgment because:

(1) The letter was not defamatory.

(2) He was not responsible for the publication of the letter.

(3) Plaintiff consented to the publication of the letter.

(4) The letter represented an act of the board of education for which defendant cannot be held liable as an individual.

(5) The letter is either absolutely or conditionally privileged.

While it is necessary to pass upon all of the above five grounds claimed to bar plaintiff's action as a matter of law, it is the fifth ground which has been argued most strenuously by defendant. It is also this fifth ground which we deem merits the greatest consideration of this court.

Was letter defamatory?

In the recent case of Lathan v. Journal Company ¹ we quoted with approval the Restatement test of defamatory which is:

'A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or the deter third persons from associating or dealing with him.' ²

We commend this test for its conciseness as well as its accuracy. The reference in the letter to plaintiff's unpatriotic attitude and her intemperate and offensive behavior falls within this definition. Furthermore, plaintiff's profession is that of a teacher and the letter certainly would tend to deter school authorities contemplating hiring a teacher of her qualifications from employing her. This facet of defamation is embraced within that part of the above definition which states, 'or to deter third persons from * * * dealing with him.' ³

We find no merit in defendant's contention that the letter was not defamatory.

Responsibility of defendant for publication of letter.

Publication is defined in the Restatement as follows:

'Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed.' ⁴

Defendant contends that the only publication of the letter for which he is responsible is the delivery of copies thereof to Principal Wagner and Superintendent Kromrey, and they had such an interest in the letter because of their official position as school officials as to cloak such delivery to them with privilege. He denies any responsibility for the reading of the letter by Wagner to the teachers of the Parkside Heights school.

The record on the motion for summary judgment substantiates defendant's contention that he was not responsible for Wagner's reading of the letter to the teachers of the school in which plaintiff had been teaching. Both Wagner and Kromrey by affidavit stated that defendant did not order, request or consent to Wagner's reading of the letter to the teachers. The only rebutting evidence is plaintiff's testimony in her adverse examination deposition that she was told by other unnamed teachers that defendant had requested or ordered the letter to be read to the teachers. In Forbus v. City of La Crosse ⁵ this court held that a party standing in plaintiff's position, who opposes a motion for summary judgment, cannot rely upon a hearsay affidavit based on information and belief, and outlined two alternative procedures which such person could have followed which would have been sufficient to defeat summary judgment. One would be for plaintiff to have taken the depositions of the informants, if such informants refused to give affidavits. The other would be for plaintiff to have stated in an affidavit the names of her informants, that these informants had refused to give affidavits, the reason for not taking depositions, and set forth the statements these informants had given her and that she expected they would give such testimony at the trial.

However, defendant did cause delivery of copies of the letter to Wagner and Kromrey. This publication would be sufficient upon which to ground an action for libel if not privileged. Thus whether there was the requisite element of publication by defendant turns on whether or not this delivery to Wagner and Kromrey was privileged. This question will be hereafter dealt with in connection with our consideration of the privilege issue.

Plaintiff's consent to publication.

There is no dispute that plaintiff is the one who disclosed the letter to the Capital Times and also portions thereof to one or more radio stations. There are no facts suggesting that this was done by her in order to correct erroneous information already in the possession of these news media. If this were the only publication of the letter defendant would not be liable. The Restatement states:

'Except as stated in sec. 584, the publication of false and defamatory matter of another is absolutely privileged if the other consents thereto.' ⁶

The exception stated in sec. 584 deals with the republication of defamatory matter made in response to inquiries which the person defamed has made to ascertain the source of defamatory rumors which are current concerning him.

However, if the publication by defendant to Wagner and Kromrey was not privileged, the fact that plaintiff consented to publication by the news media would not bar the action but would only be relevant to the issue of mitigation of damages. There is no claim made by defendant that plaintiff consented to the publication made by defendant to Wagner and Kromrey.

Did Board's action isolate defendant from individual liability?

Because sec. 40.41(2), Stats. ⁷ Required majority action of the board of education in order to discharge plaintiff, and the board did on December 9, 1963, ratify its prior informal action of December first and the delivery of the letter, defendant contends that the letter was not his action, but constitutes the action of the board. Defendant relies upon Corrao v. Mortier, ⁸ Clausen v. Eckstein, ⁹ and Meyer v. Carman. ¹⁰

All three cited cases sought to hold a defendant public officer liable in damages for failure to perform a nonministerial duty and in each of these cases plaintiff was unsuccessful. The governing principle is stated in q quotation from 67 C.J.S. Officers § 125, p. 418, set forth in Corrao v. Mortier ¹¹ as follows:

'In the absence of statute expressly imposing such liability, a public officer who is a member of a corporate or governmental body on which a duty rests cannot be held liable for the neglect of duty of that body if he acts in good faith. If there is a refusal, neglect, or failure with respect to the exercise of the power or discharge of the duties of such body, it is the default of the body, and not of the individuals composing it.'

However, the black letter wording of this same section of 67 C.J.S. Sfficers states:

'Ordinarily a public officer is not liable in a private action for acts performed in good faith within the scope of his authority. He may, however, be held liable for injuries resulting from his torts.' ¹²

In the body of the text of this same section, immediately after the quotation in Corrao v. Mortier, the following appears:

'However, it has been held that the illegal act or omission of a public board or corporation is the act of those members who actually participate in its consummation, and such members may be held personally liable for the resulting damage.' ¹³

We are satisfied that a member of a public board who actively participates in the commission of a tort, such as publishing a libel, cannot escape liability therefor by claiming it was the result of board action for which he cannot be held individually liable. The problem is closely akin to that presented in the recent case of Purtell v. Tehan ¹⁴ wherein it was held that an agent who does an act which is otherwise a tort cannot escape liability therefor by the fact that he acted at the command of his principal.

Absolute or conditional privilege.

Defendant contends initially that he cannot be sued for libel because as a 'public official' he is absolutely immune from such an action. It is a general rule that absolute privilege is accorded principal federal or state executive officers in the exercise of their duties. ¹⁵ However, when considering the lower strata of executive officials such as defendant the majority of courts have concluded that such officials are not entitled to an absolute privilege, but only a conditional privilege, although there are authorities according absolute privilege to minor officials. ¹⁶ The Restatement rule is that inferior officers of the state or nation are protected by only a conditional privilege. ¹⁷

Defendant cites two recent United States supreme court cases and other cases which allegedly indicate that the 'public official' designation now extends to an official of appellant's status. These cases are New. York Times Co. v. Sullivan, ¹⁸ Rosenblatt v. Baer, ¹⁹ Walker v. Courier-Journal and Louisville Times Co., ²⁰ and Gilligan v. King. ²¹ However, in these cases the courts were confronted with a public official or a public figure suing a private citizen for libel, not a private citizen suing a public official for libel. By footnote in Rosenblatt v. Baer, the United States supreme court made it clear that the New York Times decision did not deal with the issue of delineating which public officials qualify for absolute privilege when sued by a private citizen for libel. This footnote stated.

'For similar reasons, we reject any suggestion that our references in New York Times, 376 U.S., at 282, 283, n. 23 (84 S.Ct., at 727), and Garrison v. State of Louisiana, 379 U.S. (64), at 74 (85 S.Ct. 209, at 215, 13 L.Ed.2d 125), to Barr v. Matteo, 360 U.S. 564 (79 S.Ct. 1335, 3 L.Ed.2d 1434), mean that we...