Shannon v. Taylor AMC/Jeep, Inc.

• Decision Date: 07 July 1988
• Docket Number: Docket No. 92594
• Citation: Shannon v. Taylor AMC/Jeep, Inc., 425 N.W.2d 165, 168 Mich.App. 415 (Mich. App. 1988)
• Parties: Thomas A. SHANNON, Jr., Plaintiff-Appellant, v. TAYLOR AMC/JEEP, INC., and American Motors Sales Corporation, Defendants-Appellees.
• Court: Court of Appeal of Michigan

Page 165

425 N.W.2d 165

168 Mich.App. 415

Thomas A. SHANNON, Jr., Plaintiff-Appellant, v. TAYLOR AMC/JEEP, INC., and American Motors Sales Corporation, Defendants-Appellees.

Docket No. 92594.

Court of Appeals of Michigan.

Submitted Dec. 14, 1987.

Decided May 16, 1988.

Released for Publication July 7, 1988.

Kenneth A. Webb, Troy, for plaintiff.

Long, Preston, Kinnard & Avant by Joseph F. Page III, and Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. by Robert G. Kamenec, of counsel, Detroit, for Taylor AMC/Jeep, Inc.

Butzel, Long, Gust, Klein & Van Zile by Donald B. Miller, Detroit, for American Motors Sales Corporation.

Before WALSH, P.J., and McDONALD and NICOLICH, ^* JJ.

McDONALD, Judge.

Plaintiff appeals as of right from an April 29, 1986, judgment of no cause of action in favor of defendant Taylor AMC/Jeep, Inc., on count V of plaintiff's complaint entitled "Slander Per Se," and an April 25 and 29, 1986, judgment for attorney fees and costs in favor of defendants American Motors Sales Corporation (AMC) and Taylor.

Plaintiff worked for Taylor for approximately twelve years, the last eight years as parts manager. Plaintiff's employment was terminated in June, 1982, for his alleged involvement with stolen parts.

During his employment as parts manager, one of the employees under plaintiff's supervision was Laurie Cherup. Around the beginning of 1982, plaintiff had to discipline Cherup and eventually fire her. Rick Howard, the AMC branch manager responsible for Taylor AMC, reinstated Cherup and told plaintiff to leave her alone. Howard and Cherup were involved in a physical relationship in late 1981 or early 1982. Following plaintiff's termination, Cherup became the new parts manager. Cherup was overheard on several occasions telling customers over the phone that plaintiff was no longer parts manager because plaintiff had "gotten caught stealing," and that plaintiff was fired "for being involved in theft of parts."

Plaintiff testified that he was not involved with stolen parts for profit or personal gain, but was working with Taylor Police Officer James Black in an attempt to set up persons attempting to sell stolen parts to Taylor. On June 15, 1982, plaintiff was contacted on the phone and asked if he wanted to buy a Jeep hardtop. The phone call made plaintiff suspicious that the hardtop was stolen, so plaintiff called Black, a personal friend, for advice. Black advised plaintiff that the police would need "hard evidence" such as names and driver's license numbers of the suspects. Plaintiff purchased two hardtops which he suspected to be stolen, and placed them in the back of the parts department. When another Taylor employee indicated that a customer was interested in purchasing one of the hardtops, plaintiff responded that they were not for sale as he had reason to believe the hardtops were stolen. Plaintiff was fired the same day Black was allegedly going to write up a report on the stolen goods.

On December 28, 1982, plaintiff filed a complaint against both defendants AMC and Taylor alleging in part claims for wrongful discharge, sex discrimination, breach of contract and slander. All counts were dismissed as to defendant AMC on March 25, 1986.

On April 29, 1986, a jury verdict of no cause of action in favor of defendant Taylor on plaintiff's slander and sex discrimination claims was received by the court. The jury also returned a verdict in favor of plaintiff against defendant Taylor on plaintiff's wrongful discharge claim in the amount of $9,610 inclusive of costs and interest. On appeal, plaintiff does not seek review of the verdict of no cause of action entered on the sex discrimination claim and the dismissal on all counts as to defendant AMC. The entirety of the appeal questions the propriety of the verdict of no cause of action on the slander claim and the reasonableness and necessity of the attorney fees awarded by the trial court.

Plaintiff first requests a new trial on the slander claim. Plaintiff argues that the trial court erred in instructing the jury on qualified privilege and actual malice. We agree.

A communication is defamatory if it tends to lower an individual's reputation in the community or deter third persons from associating or dealing with him. Swenson-Davis v. Martel, 135 Mich.App. 632, 354 N.W.2d 288 (1984). Slander per se is found where the words spoken are false and malicious and are injurious to a person in his or her profession or employment. Swenson-Davis, supra.

Here, the trial court found that Cherup's statements about plaintiff to defendant's customers were protected from action by a qualified privilege. The initial determination of whether a privilege exists is one of law for the court. Lawrence v. Fox, 357 Mich. 134, 97 N.W.2d 719 (1959). In general, a qualified privilege extends to "all communications made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty...." Swenson-Davis, supra, 135 Mich.App. p. 636, 354 N.W.2d 288.

Thus, in order to have a qualified privilege, the communication must be: (1) bona fide; (2) made by a party who has an interest, or a duty to communicate the subject matter; and (3) made to a party who has a corresponding interest or duty.

Although in the instant case neither party addresses the first prerequisite, the "bona fide" nature of the communication, we question whether Cherup's statements were bona fide. Not only had plaintiff previously fired Cherup, but there was testimony indicating that another employee overheard a conversation between Cherup, Howard and two others regarding possible ways in which to "get rid of" plaintiff, and wherein Howard allegedly suggested that they "link" plaintiff with some stolen parts.

Nonetheless, even if the...