Westbrook v. Mack
| Decision Date | 27 December 1978 |
| Docket Number | No. 39778,39778 |
| Citation | 575 S.W.2d 921 |
| Parties | Norman Earl WESTBROOK, Appellant, v. James S. MACK et al., Respondents. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Hale W. Brown, Kirkwood, for appellant.
Daniel E. Wilke, Carter, Brinker, Doyen & Kovacs, Clayton, for respondents.
This is an appeal from a summary judgment entered in the trial court under Rule 74.04, V.A.M.R., in favor of defendants. Plaintiff had sued for libel and slander.
In June, 1975, pursuant to information which had been brought to the attention of the Chief of Police of Rock Hill, the City of Rock Hill (hereinafter "City") suspended plaintiff Norman Westbrook from his position as a Sergeant on the Rock Hill Police Department. On June 19, 1975, plaintiff requested a hearing to consider this suspension, the allegations that had been made against him, and his possible discharge from the police department. A hearing was held on July 7, 1975, before the Mayor and Board of Aldermen, at which hearing plaintiff was represented by counsel. Four witnesses testified for the City, among them defendant James S. Mack; plaintiff testified on his own behalf. Subsequent to the hearing, the City decided to terminate plaintiff's position as a police officer as of July 14, 1975.
Plaintiff filed a petition for review in the Circuit Court of St. Louis County and incorporated as part of his case Exhibits A through M. The circuit court dismissed plaintiff's petition for review; plaintiff did not appeal this dismissal. Both plaintiff's petition for review and Exhibits A through M are part of the record herein.
Plaintiff then filed a petition in the Circuit Court against defendants James S. Mack and Medicare-Glaser Corporation, a Missouri corporation, alleging that the statements made by James Mack at the hearing before the Mayor and Board of Aldermen were slanderous and defamatory, and that Mack was acting as agent, servant and employee of defendant Medicare-Glaser Corporation. Plaintiff sought actual damages of $100,000 and punitive damages of $250,000.
Defendants then filed a motion to dismiss or in the alternative for summary judgment, which motion adopted by reference plaintiff's original petition for review and the aforementioned Exhibits A through M filed therein. The basis for defendants' motion was that any statements that defendant Mack made at the public hearing were "absolutely privileged;" consequently, neither defendant could be libel for slander for the statements made at the hearing. The motion was verified by James Mack, "to the best of his information, knowledge, and belief." Plaintiff filed no affidavits in opposition to the motion, made no objection to the form of the motion, and generally made no response to the motion. The motion for summary judgment was sustained. Plaintiff appeals from the granting of summary judgment.
Plaintiff contends that the court should not have accepted as true all of the sworn statements in the motion for summary judgment because the statements contained in said motion were not based on affiant's personal knowledge and because the motion contained inadmissible conclusions of law. We reject plaintiff's contention for procedural errors. As noted above, appellant made no response to the motion. Appellant failed to object to the motion as to either form or content. He now asks us to find that the trial court erred in considering material to which plaintiff never objected at trial.
"(A)n appellate court does not review legal propositions not expressly decided by the trial court." Dyer v. General American Life Ins. Co., 541 S.W.2d 702, 706 (Mo.App.1976). Although this general principle has never been applied in Missouri to the specific circumstances here, the United States Court of Appeals in Chambers v. United States, 357 F.2d 224 (8th Cir. 1966) dealt with a similar situation. In that case, the trial court had granted summary judgment based on a motion to dismiss supported by affidavits, which motion the trial court had considered as a motion for summary judgment. On appeal, the plaintiffs asserted that the affidavits and other material in support of the motion were invalid and should not have been considered. After noting that plaintiffs had made no objection to the affidavits or other documents and had made no motion to strike any of the materials, the appellate court stated, "Under these circumstances, neither this court nor the trial court is precluded from giving the documents consideration." Id. at 228. The court later stated ". . . it is too late for plaintiffs to urge their objections for the first time in this court, having had ample opportunity to do so in the trial court." Id. at 229. The applicability of these rules to the Missouri courts is delineated by those cases which note that the federal decisions as to summary judgment are "particularly persuasive in construing Missouri's summary judgment procedures." Miller v. United Security Insurance Company, 496 S.W.2d 871, 876 (Mo.App.1973); Maddock v. Lewis, 386 S.W.2d 406, 408 (Mo.1965) . Therefore, we refuse to find error in the court's consideration of the motion.
Plaintiff further contends that there remains a genuine issue of material fact. Defendants respond by saying that, based upon the pleadings, facts alleged in the motion, and the exhibits, there is no genuine issue of material fact. Defendants claim that their statements were within the shelter of an absolute privilege because: (1) the testimony was given at a "judicial" hearing, and (2) the testimony was given at a hearing requested by plaintiff, so that any publication was made with his consent.
Edwards v. Heidelbaugh, 574 S.W.2d 25 at 26-27 (Ct.App.St.L.1978).
One issue as to which there is no dispute is that the plaintiff requested the hearing on his suspension and possible...
To continue reading
Request your trial
-
Henry v. Halliburton
...& Western Air, Inc., 358 Mo. 674, 216 S.W.2d 523 (1948).8 See e.g., Pulliam v. Bond, 406 S.W.2d 635 (Mo.1966); Westbrook v. Mack, 575 S.W.2d 921 (Mo.App.1978).9 The Supreme Court held that a public official must prove "that the statement was made with 'actual malice'--that is, with knowledg......
-
Overcast, v. Billings Mutual Insurance Company
...See Willman v. Dooner, 770 S.W.2d 275 (Mo. App. 1989); Johnson v. City of Buckner, 610 S.W.2d 406 (Mo. App. 1980); Westbrook v. Mack, 575 S.W.2d 921 (Mo. App. 1978); Hellensen v. Knaus Trucklines, Inc., 370 S.W.2d 341 (Mo. 1963). Here, there was no evidence that Overcast specifically reques......
-
Willman v. Dooner, WD
...v. Zinn, 550 S.W.2d 217, 224 (Mo.App.1977). This privilege remains absolute even if the statements made are false, Westbrook v. Mack, 575 S.W.2d 921, 924 (Mo.App.1978), and even if they were made with actual malice. Williams v. School District of Springfield R-12, 447 S.W.2d 256, 267 (Mo.19......
-
Roberts Fertilizer, Inc. v. Steinmeier
...judgment entered by the trial court will be sustained even if the argument was not presented in the trial court. Westbrook v. Mack, 575 S.W.2d 921, 924 (Mo.App.1978). The reviewing court first determines whether there is any genuine issue of material fact requiring trial, and, second, wheth......