Worley v. Oregon Physicians Service, s. A8009-05318

• Decision Date: 04 December 1984
• Docket Number: Nos. A8009-05318,s. A8009-05318
• Citation: 686 P.2d 404,69 Or.App. 241
• Parties: Judith Ann WORLEY, Respondent, v. OREGON PHYSICIANS SERVICE, an Oregon corporation, and Jon Sanders, Appellants. ; CA A26758. . *
• Court: Oregon Court of Appeals

Page 404

686 P.2d 404

69 Or.App. 241

Judith Ann WORLEY, Respondent, v. OREGON PHYSICIANS SERVICE, an Oregon corporation, and Jon

Sanders, Appellants.

Nos. A8009-05318; CA A26758.

Court of Appeals of Oregon,

In Banc. ^*

Argued and Submitted Oct. 4, 1983.

Resubmitted In Banc June 5, 1984.

Decided July 18, 1984.

Reconsideration Denied Oct. 5, 1984.

Review Denied Dec. 4, 1984.

Ronald E. Rhodes, Portland, argued the cause for appellants. With him on the briefs was Richard C. Baldwin, Portland.

J. Robert Jordan, Portland, argued the cause for respondent. On the brief were Michael R. Jordan, and Jordan & Jordan, Portland. NEWMAN, Judge.

Defendants appeal from a judgment that awarded plaintiff damages for slander. Her action was based on statements that defendant Sanders, a vice-president of defendant Oregon Physicians Service (OPS), made to other OPS employes after OPS had discharged plaintiff. Defendants contend that the court erred in failing to grant their motions for a directed verdict and for judgment notwithstanding the verdict and in failing properly to instruct the jury on privilege. We affirm.

Plaintiff was a claims analyst at OPS for approximately five years before her discharge in October, 1979. OPS considered her to be an honest and trusted employe. As part of her employment she was required periodically to work overtime on Saturdays. Often, she would report to work on Saturdays between 5 and 6 a.m. in order to finish her work by early afternoon. For purposes of office security, OPS's policy was to issue keys to supervisors only, but it authorized supervisors to lend their keys to other employes. OPS forbade employes to make copies of keys. Often a supervisor would lend a key to plaintiff to open the office on Saturday mornings.

On Saturday, September 29, 1979, Sanders discovered that plaintiff possessed an unauthorized key. Plaintiff admitted that she had made a copy of a key but refused to state from whom she had obtained the original key. The following Monday, Sanders discharged her. He told her that the reason for the discharge was her possession of the unauthorized key. Later that same day he called a meeting of all claims department personnel. At that meeting he stated that (1) an unidentified employe was discharged that day because she had an unauthorized key, (2) several items of personal property had been missing before that date and (3) if any other employes had unauthorized keys, they should be turned in to the employer. Plaintiff was the only claims department employe who had been discharged that day.

Plaintiff does not dispute OPS's right to discharge her. She asserts, however, that the effect of Sanders' combined statements at the claims department personnel meeting was falsely to accuse her of theft. Defendants' amended answer raised the affirmative defense of a qualified privilege. The jury returned a general verdict in plaintiff's favor.

As their first assignment of error defendants contend that the trial court erred in failing to grant their motions for a directed verdict and judgment notwithstanding the verdict. They argue that (1) Sanders' statements were not defamatory; (2) his statements, as a matter of law, were qualifiedly privileged; and (3) defendants, as a matter of law, did not abuse their qualified privilege.

A defamatory statement is one that subjects a person to hatred, contempt or ridicule or tends to diminish the esteem, respect, goodwill or confidence in which she is held or excites adverse, derogatory or unpleasant feelings or opinions against her. Farnsworth v. Hyde, 266 Or. 236, 238, 512 P.2d 1003 (1973); Bock v. Zittenfield, 66 Or.App. 97, 100, 672 P.2d 1237 (1983), rev. den. 296 Or. 486, 677 P.2d 702 (1984). The court determines whether a statement is capable of a defamatory meeting. Beecher v. Montgomery Ward & Co., 267 Or. 496, 500, 517 P.2d 667 (1973); Cushman v. Day, 43 Or.App. 123, 126, 602 P.2d 327 (1979) rev. den. 288 Or. 571 (1980); see also Bock v. Zittenfield, supra, 66 Or.App. at 99, 672 P.2d 1237. A statement that a person has committed theft is defamatory as a matter of law, Cook v. Safeway Stores, Inc., 266 Or. 77, 82, 511 P.2d 375 (1973), whether or not it refers to her work performance. Defendants argue that Sanders' statements were not capable of a defamatory meaning, because there was no evidence from which the jury could infer that his statements were a reference to plaintiff. Plaintiff asserts that it was not necessary for Sanders to refer to her by name but that, because she was the only claims department employe discharged, her co-employes would interpret Sanders' statements- --that an employe was discharged because she had an unauthorized key and that several items of personal property had been missing before that date--as an accusation of theft directed at her.

In Wheeler v. Green, 286 Or. 99, 593 P.2d 777 (1979), the defendants published a letter which defamed an unnamed person. The plaintiff sued, alleging that the letter referred to him. No one who read the letter testified. However, the Supreme Court ruled that, although the letter did not refer to the plaintiff by name, the jury could infer that the letter referred to him because "[d]irect testimony of the recipients' understanding of the defamatory nature of a [slander] is not required if other evidence is sufficient to permit an inference of such an understanding." Wheeler v. Green, supra, 286 Or. at 105, 593 P.2d 777. Here, at least one co-employe testified that initially she believed that the discharge and the thefts were connected. The court correctly determined that the jury could reasonably infer from all the evidence that Sanders' statements referred to plaintiff and accused her of committing theft. ¹

Defendants also argue that, as a matter of law, Sanders' statements were conditionally privileged and that defendants did not abuse that privilege. A conditional privilege to make a defamatory statement can arise when it is made to protect the interests of an employer or when it is on a subject of mutual concern to the publisher and those to whom it is made. As a matter of law, Sanders' statements were conditionally privileged, because a reasonable person could only find from the evidence that they were made to protect the interests of OPS in security and employe morale and were on a subject of mutual concern to it and to the claims department employes to whom it was made. Wattenburg v. United Medical Lab., 269 Or. 377, 380, 525 P.2d 113 (1974); Benassi v. Georgia-Pacific, 62 Or.App. 698, 702, 662 P.2d 760, modified 63 Or.App. 672, 667 P.2d 532, rev. den. 295 Or. 730, 670 P.2d 1035 (1983); see Restatement (Second) Torts §§ 593-598A (1977).

Plaintiff introduced evidence, however, from which the jury could find that, even if defendants' statements were conditionally privileged, defendants abused that privilege. In Schafroth v. Baker, 276 Or. 39, 45, 553 P.2d 1046 (1976), the Supreme Court adopted the portion of the Restatement of Torts § 599, comment a (1938), on how the privilege can be abused. Comment a provides:

"The unreasonable exercise of the privilege is an abuse of the occasion which defeats the protection otherwise afforded. The occasion may be abused because of the publisher's lack of belief or reasonable grounds for belief in the truth of the defamatory matter (see §§ 600-602); because the defamatory matter is published for some purpose other than that for which the particular privilege is given (see § 603); because the publication is made to some person not reasonably believed to be necessary for the accomplishment of the purpose of the particular privilege (see § 604); or because the publication includes defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged (see § 605)." (Emphasis supplied.)

See also Benassi v. Georgia Pacific, supra, 62 Or.App. at 703, 709, 662 P.2d 760. Here, Sanders testified that he did not believe that plaintiff was a thief and that he did not intend to accuse her of theft. The jury could have believed that part of Sanders' testimony that he did not believe that plaintiff was a thief, but it could also have found from the evidence that his statements to the claims department employes served to accuse her of theft. The jury could, therefore, have concluded that, "because of [Sanders'] lack of belief * * * in the truth of the defamatory matter," he knowingly made false statements to the effect that plaintiff was a thief and unreasonably exercised and, consequently, abused the privilege. The trial court correctly denied defendants' motions for a directed verdict and for judgment notwithstanding the verdict.

As we interpret defendants' second assignment of error, they contend that the court erred in failing both to give defendants' requested jury instruction 18 and to instruct the jury that Sanders' statements were conditionally privileged as a matter of law. Defendants' requested jury instruction 18 provides:

"If Mr. Sanders made the statement about plaintiff Worley, he had a privilege to do so. This privilege means that defendant, Oregon Physicians Service, cannot be held liable for defamation unless all the following elements are present. You must first determine whether any statements were made concerning Worley. Secondly, you must find that Mr. Sanders was motivated by malicious purpose in making the statement. Then you must find that Mr. Sanders' primary purpose in making the statement was something other than wanting to stop rumors and promote employee morale.

"If you find that the statements were made and that Mr. Sanders was not motivated by malicious purpose or that his primary purpose in making the statement was to stop rumors and promote employee morale, then you must return your verdict for defendant."

The requested instruction is an incorrect statement of the law, because it instructs the jury that, in order to find that defendants abused their...