Ward v. Painters' Local Union No. 300

Decision Date16 January 1953
Docket NumberNo. 32122,32122
Citation41 Wn.2d 859,252 P.2d 253
CourtWashington Supreme Court
PartiesWARD, v. PAINTERS' LOCAL UNION NO. 300 et al.

L. Presley, Gill, Seattle, for appellants.

Joseph D. Holmes, Seattle, for respondent.

OLSON, Justice.

This is an action for civil libel. Defendants' motions for judgment notwithstanding the verdict of the jury and for a new trial were denied, and all except the Brotherhood have appealed from the judgment against them. The action against the Brotherhood was dismissed. We will refer to defendant local union as the union.

In view of the issues on this appeal and our disposition of them, we do not need to relate in detail either the pleadings or the evidence in this case. It is adequate to state the general nature of each of plaintiff's three causes of action. All of them arose out of allegedly false and malicious defamatory accusations and charges made against him by defendants, regarding the manner in which he conducted the office of financial secretary of the union. He had held this office for about nine years, when the charges were made.

We summarize plaintiff's allegations to support his claims for special and general damages in each of his causes of action as follows: The first rested upon written charges by defendant Glynn that plaintiff had embezzled and misappropriated union funds, and Glynn's statement to the union members, in effect, that he could prove that plaintiff 'stole your money and my money.' The union removed plaintiff from his office, and his various appeals within the union were unsuccessful. The second was based upon a schedule of shortages, which we will describe later, prepared by defendant trustees, and which, plaintiff asserts, prevented him from being re-elected to his former office. By vote of the union, it was published to union members, to the surety on plaintiff's fidelity bond as financial secretary, and possibly to others. The third was grounded upon a statement by defendant Krabler that plaintiff had absconded with union funds. This was published to the union membership in connection with a motion to table a request by plaintiff for certain vacation pay he claimed was due him from the union. The vote on the motion was adverse to plaintiff.

The defendants' principal assertions are that they are not, and did not act as, agents of the union in their respective statements about plaintiff; that it was their duty and privilege under the union constitution, as members and officers of the union, to make the statements; that they did not publish them to others than members of the union or bodies within the union structure which heard plaintiff's appeals and that plaintiff, as a member and officer of the union, had agreed to comply with, and was bound by, the provisions of its constitution.

Defendants further contend that the publications against plaintiff were true, and, further, that they and each of them had reasonable and probable cause to believe, and did believe, that plaintiff had violated the union constitution. They assert many of its provisions, and the circumstances of the occasions of the alleged publications, in support of their position that those occasions were conditionally or qualifiedly privileged.

The trial court held that the statements pertinent to all causes of action were libelous or actionable per se, as a matter of law, and so instructed the jury. Defendants took no exception to this instruction regarding the first and third causes of action. Therefore, upon those communications, it states the law of this case.

Considering defendants' contention that the schedule involved in the second cause of action is not libelous or actionable per se, we find that one column in this publication details the expenditures in the financial secretary's office during twenty-eight and one-half months covered by the charges against plaintiff. Another column shows expenditures for the same items for a period of four and one-half months, during which that office was conducted by the trustees, after plaintiff was removed from it. From a comparison of the columns, a figure was reached which, according to the schedule, 'represents estimated shortages between expenditures under the former Financial Secretary and Trustee's office experience.' It was stated that:

'(Note) These figures are taken from the C. P. A.'s report on file in the office and admitted as evidence, Exhibit No. 12, during the Trial [of plaintiff within the union].'

A publication is libelous or actionable per se, if, among other things, it tends to harm one in his business or occupation (3 Restatement, Torts, 168, 179, §§ 569, comment e, 573, comment c), or imputes to him some criminal offense involving moral turpitude. See 3 Restatement, Torts, 169 174, §§ 569, comment g, 571, comments e, f, g; Ecuyer v. New York Life Insurance Co., 1918, 101 Wash. 247, 254, 172 P. 359, L.R.A.1918E, 536; Ecuyer v. New York Life Insurance Co., 1919, 107 Wash. 411, 416, 181 P. 871, 186 P. 327; Ziebell v. Lumbermens Printing Co., 1942, 14 Wash.2d 261, 266, 127 P.2d 677, and cases and statute cited. The interest protected is the reputation of the one alleged to be defamed. It is not necessary that the defamatory publication be in technical terms. It is sufficient if the language used imputes, to the recipient, the commission of a criminal offense by the one allegedly defamed. 3 Restatement, Torts, 172, § 571, comment c. See Tennant v. F. C. Whitney & Sons, 1925, 133 Wash. 581, 588, 234 P. 666. The inquiry is whether or not the words used are defamatory, in the sense in which they would be understood, correctly or mistakenly, but reasonably, by those to whem they are published. Ziebell v. Lumbermens Printing Co., supra, 14 Wash.2d at page 268, 127 P.2d 677; 3 Restatement, Torts, 147, § 563. The language used, and all of the circumstances surrounding the publication which were known to the recipients, may be considered in determining how the words may have been understood by them. 3 Restatement, Torts, 149, § 563, comment e; Ziebell v. Lumbermens Printing Co., supra, 14 Wash.2d at page 268, 127 P.2d 677. The court must determine, as a matter of law, whether a communication is libelous per se, where reasonable minds cannot differ either upon the defamatory meaning of the communication, or the manner in which it was understood by its recipients. Cf. 3 Restatement, Torts, 304, 305, § 614, comment c. See Arnold v. National Union of Marine Cooks and Stewards Ass'n, 1950, 36 Wash.2d 557, 560, 219 P.2d 121, and cases cited.

In the case at bar, the publication in question was made to the members of the union, after the entire matter of plaintiff's claimed malfeasance as financial secretary had been before them for many months. While the evidence shows that the union later declined to state to the surety on plaintiff's fidelity bond that plaintiff had embezzled any union funds, upon receipt of the schedule the bonding company immediately investigated it as a claim against the bond. The communication could have had but one imputation to the union members and the bonding company. It was libelous per se, and the court's instruction was proper.

The only defenses before us in this case are truth and qualified or conditional privilege. Truth is a complete defense in any action for civil libel. Carey v. Hearst Publications, Inc., 1943, 19 Wash.2d 655, 659, 143 P.2d 857; 3 Restatement, Torts, 216, § 582. In this case, the evidence upon this defense is in sharp conflict, and presents a proper question for the jury in each cause of action. No error is assigned upon any instruction in this regard. Considering the evidence and the reasonable inferences from it most favorably to plaintiff, as we are obliged to do, we cannot say that a verdict adverse to defendants on this issue would not be supported by substantial evidence. Their assignments of error in regard to it are without merit.

Consideration of the defense of qualified or conditional privilege, is presented by defendants' assignment of error upon an instruction requiring the jury to determine whether or not the occasions of the publications in this case were so privileged. The evidence is not in dispute upon the nature of the occasion of each of the alleged defamatory publications, excepting that of the trustees' schedule, which we will consider later. Therefore, whether or not such occasions were privileged was a question for the court to determine, as a matter of law. 3 Restatement, Torts, 310, § 619; Fahey v. Shafer, 1917, 98 Wash. 517, 167 P. 1118; Ecuyer v. New York Life Insurance Co., supra, 101 Wash. at page 256, 172 P. 359.

An occasion is conditionally or qualifidly privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter, correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know. 3 Restatement, Torts, 255, § 596; Newell, Slander and Libel (4th ed.) 460, § 432. The common...

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