Sanders v. Day
| Decision Date | 20 April 1970 |
| Docket Number | No. 94--40208--I,94--40208--I |
| Citation | 468 P.2d 452,2 Wn.App. 393 |
| Parties | Irene M. SANDERS, Appellant, v. Del DAY and Jane Doe Day, his wife, and Midnight Sun Broadcasting, Inc., an Alaska corporation, Respondents. |
| Court | Washington Court of Appeals |
MacDonald, Hoague & Bayless, David R. Hood and Stephen Feldman, Seattle, for appellant.
Haugland, Sherrow & Williams, Robert C. Williams, Seattle, for respondents.
Del Day admits that he falsely said, while in the presence of several others, that he and Irene Sanders had engaged in an act of sexual impropriety. Sanders joined Day and Midnight Sun Broadcasting, Inc., as defendants, alleging that Day made the slanderous utterance as Midnight Sun's agent. Midnight Sun denied that Day made the remark as its agent and moved for judgment summarily dismissing it from the suit. The motion was granted, and Sanders appeals.
Midnight Sun has thus assumed the burden of establishing that there is no genuine issue as to any material fact, and that the undisputed facts do not permit application of the doctrine of respondeat superior. Balise v. Underwood, 62 Wash.2d 195, 381 P.2d 966 (1963). While Sanders concedes that there is no substantial dispute as to the evidentiary facts, she asserts that the inferences to be drawn from them are in sharp dispute. Sanders contends that the ultimate and critical question of fact--whether Day acted within the scope and course of his employment--is necessarily inferential.
Sanders is a secretary in a Seattle advertising agency. Day is president of Del Day, Inc., an advertising 'media representative'. 1 Sanders did not name Del Day, Inc., as a defendant in this action. Midnight Sun, an Alaska corporation, operates radio and television stations in Alaska.
Day had first been employed by Midnight Sun in 1948 as an announcer. He later became a station manager in Juneau and remained a full-time salaried employee upon being transferred to Seattle in 1952 to serve as Midnight Sun's western national sales manager. At that time Midnight Sun maintained a Seattle office.
By 1964, however, Day was no longer a salaried employee of Midnight Sun. Del Day's corporation, Del Day, Inc., had become Midnight Sun's media representative for the western United States. The relationship between Midnight Sun and Del Day, Inc., was governed by a written contract. Del Day, Inc., agreed that it would have no dealings with any current or potential competitor of Midnight Sun. Del Day, Inc., had two other principal clients as a media representative, but about 50 per cent of its gross income was derived through its contract with Midnight Sun.
Del Day the individual, however, retained a direct relationship with Midnight Sun. He was the corporate vice-president of Midnight Sun. His business card identified him only as vice-president of Midnight Sun Broadcasting Company. The stationery Day used in the regular course of his business identified him as vice-president of Midnight Sun Broadcasting Company and carried no other identification. He was listed in the television industry's publication of standard rates as vice-president of Midnight Sun. Day, the vice-president, conducted local job interviews on behalf of Midnight Sun and entertained its visiting dignitaries from Alaska. He also compiled and published Midnight Sun's national rate schedules.
Sanders and Day, as members of the advertising profession, participated in a tournament of the Advertising Golf Association of Washington. Membership in the association is limited to individuals in the communications industry.
Day had entertained friends at an allnight party at his home on the evening before the golf tournament and had had much to drink. He had planned to play golf in the tournament the next day, but when one of his golf partners contacted him that morning, Day attempted to beg off because of his previous night's overindulgence. His friends finally persuaded him, because he was to be part of a foursome, to keep his commitment.
After finishing his round of golf with the aid of a thermos jug of 'Bloody Marys', Day was told that someone from Midnight Sun had been trying to reach him. He telephoned and ascertained that an emergency existed because of the absence of certain color film promised by a Seattle advertising agency. He made several telephone calls to straighten out the problem. Between these calls Day had several drinks with Sanders and told her of the film mixup. Day's companions, to whom he later made the slanderous statement, saw Sanders and Day together.
It was after the golf tournament had been completed, after the film mixup had been resolved, after Day's conversation with Sanders, and while playing the '19th hole,' trhat Day made the unfortunate remark.
Everyone who heard him agrees that Day said nothing at the time to indicate that he was acting for or furthering the business of Midnight Sun in any way. An affidavit of an officer of Midnight Sun states that obviously Day's offensive remark was not authorized by the corporation. Midnight Sun contends that under the established facts Day's authority as a vice-president was limited to (1) conducting job interviews with prospective employees, (2) entertaining visiting dignitaries from Alaska, and (3) publishing Midnight Sun's national rate schedules.
But Sanders contends that she should have an opportunity to argue to the trier of fact that Day's motive in defaming her character was a misguided desire to ingratiate himself, the corporate vice-president, with potential customers of Midnight Sun. She argues that she should have an opportunity to examine Day and other officers of Midnight Sun in the presence of the trier of fact to establish that Day's slanderous utterance should not have come as any surprise--that his public relations personality was that of the hail fellow with a ready anecdote or ribald story.
In support of her contention that the trier of fact could find that Day made the slanderous utterance as an agent of Midnight Sun, Sanders offered the affidavit of a general manager in charge of radio time sales for a Seattle radio station. Among other things, he said,
In my earlier affidavit I stated that I was not a member of the Advertising Golf Association. This is...
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