Tinley v. Davis
| Decision Date | 27 March 1980 |
| Docket Number | No. 4119,4119 |
| Parties | Robert E. TINLEY, Jr., Plaintiff-Appellant, v. C. R. DAVIS, Defendant, and James R. Toulouse, Individually, Toulouse, Krehbiel & DeLayo, P. A., Argonaut Insurance Co., and Great American Insurance Company, Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
Plaintiff, Robert E. Tinley, Jr., appeals from a summary judgment granted James R. Toulouse, Toulouse, Krehbiel and Delayo (Toulouse), Argonaut Insurance Company, and American Empire Insurance Company. We affirm. Tinley sued these defendants and defendant C. R. Davis for defamatory statements made by Davis to Tinley's employer which caused the termination of Tinley's employment as President and Chief Executive Officer of the Fidelity National Bank. Tinley claimed that Davis was negligently employed by defendants and acted within the course and scope of his employment.
The trial court found:
3. Defendant C. R. Davis was acting outside the course and scope of his alleged employment by these defendants at any and all times that alleged defamatory statements were made concerning the Plaintiff, Robert Tinley, and there is no evidence in the record to raise genuine issue of fact as to this issue.
4. Therefore, these Defendants are entitled to judgment as a matter of law.
The only issue on this appeal is:
Does a genuine issue of material fact exist on whether Davis was acting within the course and scope of his employment by defendants when defamatory statements were made concerning Tinley?
To answer this question we must proceed in accordance with the following rules laid down in Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972).
First, the burden is on defendants to show an absence of a genuine issue of material fact, i. e., that Davis was acting outside the course and scope of his employment. This burden means that the defendants must make a prima facie showing by such evidence as is sufficient in law to raise a presumption of fact or establish the fact unless rebutted.
Second, once this prima facie showing is made by defendants, the burden shifts to plaintiff to come forward and demonstrate that a genuine issue of fact exists on whether Davis was acting within the course and scope of his employment.
A. Defendants established a prima facie showing that Davis acted solely on his own behalf, and Tinley failed to meet his burden.
To define "the course and scope of employment" is variable. White Auto Stores v. Reyes, 223 F.2d 298 (10th Cir. 1955); Bolt v. Davis, 70 N.M. 449, 374 P.2d 648 (1962); Massey v. Beacon Supply Company, 70 N.M. 149, 371 P.2d 798 (1962); Lang v. Cruz, 74 N.M. 473, 394 P.2d 988 (1964); McCauley v. Ray, 80 N.M. 171, 453 P.2d 192 (1968); McFatridge v. Harlem Globe Trotters, 69 N.M. 271, 365 P.2d 918 (1961); Miera v. George, 55 N.M. 535, 237 P.2d 102 (1951); Nabors v. Harwood Homes, Inc., 77 N.M. 406, 423 P.2d 602 (1967).
To state each element involved in the various definitions and then attempt to apply the facts to each element is difficult and hazardous. Bolt, supra, accurately stated this perplexing problem:
Much has been said by the courts in their opinions on the subject before us. While the rule in scope of employment cases appears to be simple, there has always been great difficulty in its application, and it has been frequently said that it is impossible to state it briefly and comprehensively so as to make it clearly applicable to all cases, because of the ever-varying facts of each particular case. (70 N.M. 463, 374 P.2d 658.)
We are confronted with an act of defamation committed by Davis while an employee of defendants. Employers may be liable for their employees' unauthorized slanderous statements made within the apparent scope and course of employment. Sanders v. Day, 2 Wash.App. 393, 468 P.2d 452 (1970).
In Sanders, Day was Corporate Vice-President of Midnight Sun Broadcasting, Inc., and Irene Sanders was a secretary in a Seattle advertising agency. Both participated in a golf tournament of the Advertising Golf Association of Washington. After the golf tournament had been completed and after Day's conversation with Sanders, and while playing the "19th" hole, Day stated that he and Irene had engaged in an act of sexual impropriety. Everyone who heard him agreed that Day said nothing at the time to indicate that he was acting for or furthering the business of Midnight Sun in any way. Sanders contended that Day's motive in defaming her character was a misguided desire to ingratiate himself with potential customers of Midnight Sun; that Day's slanderous utterances should not have come as any surprise; that his public relation personality was that of the hail fellow with a ready anecdote or ribald story.
Summary judgment was granted Midnight Sun. Sanders appealed and the court reversed. The court said:
Summary judgment procedures are not designed to resolve inferential disputes.
"It seems obvious that in situations where, though evidentiary facts are not in dispute, different inferences may be drawn therefrom as to ultimate facts such as intent, knowledge, good faith, negligence, et cetera, a summary judgment would not be warranted." (Citation omitted.)
Expressing no opinion as to the merits, we hold that Sanders is entitled to have the inferences drawn by the trier of fact. At trial, of course, the burden of persuasion will be hers. (467 P.2d 455-6.) (Emphasis added.)
This inferential rule has been adopted in New Mexico. Fischer v. Mascarenas, 93 N.M. 199, 598 P.2d 1159 (1979). The court said, citations omitted:
. . . The remedy should not be employed where there is the slightest doubt as to the existence of an issue of material fact. Even where the basic facts are undisputed, if equally logical but conflicting inferences can be drawn from the facts, summary judgment should be denied. (Emphasis added.) (598 P.2d 1161.)
We shall apply this rule to the burden placed on defendants. The facts are detailed and complex. Voluminous depositions were taken, interrogatories propounded and a number of affidavits filed. We begin with the proposition that Toulouse, Argonaut and Great American did not themselves directly defame Tinley. Their liability is therefore vicarious in nature only and based upon the conduct of Davis.
Toulouse was attorney for and represented Argonaut and Great American in all dealings with Davis. In April, 1976, Argonaut and Great American, through Toulouse, entered into a written agreement with Davis and his son in...
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