Petesy Smith v. Tammy White ( 1999 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 1999-CT-00455-SCT
PETESY SMITH
v.
TAMMY WHITE
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 02/09/1999
TRIAL JUDGE: HON. ISADORE W. PATRICK, JR.
COURT FROM WHICH WARREN COUNTY CIRCUIT COURT
APPEALED:
ATTORNEYS FOR CHARLES R. WILBANKS, JR.
APPELLANT:
KIMBERLY PINE TURNER
BARRY C. CAMPBELL
ATTORNEY FOR APPELLEE: ROBERT H. PEDERSEN
NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND
PROPERTY DAMAGE
DISPOSITION: REVERSED AND REMANDED - 10/25/2001
MOTION FOR REHEARING
FILED:
MANDATE ISSUED: 11/15/2001
EN BANC.
SMITH, JUSTICE, FOR THE COURT:
¶1. Petesy Smith in this defamation case raises questions concerning slander per se, qualified privilege and
malice. The jury answered most of these questions in favor of the plaintiff Petesy Smith, however neither
Smith nor the defendant Tammy White was satisfied with the jury verdict, and both appealed. The Court of
Appeals found that the jury's verdict in favor of Smith was not justified and rendered judgment in favor of
White. We granted certiorari, and after consideration we find that the judgment of the Court of Appeals
should be reversed. We further find that the jury's verdict should be reinstated, and the matter remanded to
the Warren County Circuit Court for further proceedings.
FACTS
¶2. The following statement of facts is taken from the opinion of the Court of Appeals:
[Petesy] Smith has a long history of service as a volunteer in various organizations involved in
protecting children's well-being. One such activity was her work as a volunteer child advocate in the
Child Advocate Program (CAP), an organization funded through private grants, donations, fund-
raisers, and grants from state and local governmental organizations. Under that program, volunteers
agreed to serve, on a case-by-case basis, as "advocates" for children involved in Youth Court
proceedings or coming under the purview of the Department of Human Services (DHS), in the hope
that these volunteers can provide a helpful but dispassionate voice in any such proceeding on the
child's behalf. In addition to her duties as a child advocate in the CAP program, Smith also served as
local chairperson for an unrelated organization known as the Warren County Family Advocacy
Committee. Her duties in that position were more general, since the focus of that organization's
mission was to seek systemic changes in the treatment of children coming under the eye of public
authorities rather than undertaking to intervene in a particular child's case. The proof is uncontradicted
that, in her role as chairperson for the Warren County Family Advocacy Committee, Smith was at
times critical of the operation of the local DHS, and was, in fact, often quite outspoken in her criticism.
[Tammy] White served as director for the Child Advocate Program (CAP) and, in that capacity, was
responsible for supervising all volunteer child advocates. After being shown information by an
employee of DHS that indicated that Smith was representing herself as the designated advocate in a
particular child's case when, in fact, she was not, White returned to CAP offices and had a
conversation about the matter with Walley Flowers, who was at the time acting as president for CAP.
The conversation turned to the question of how a form generated in the CAP offices that had made its
way into a DHS file could incorrectly show Smith as the designated advocate for this particular child.
White called in Angela Carpenter, who worked as a clerical employee for CAP, and requested that
she pull the file in order to investigate the matter further. During the course of the conversation, White
speculated aloud as to how Smith's name could have gotten into the file as the child's advocate and
remarked that Smith did have a key to the offices. However, immediately upon the file being pulled, it
was discovered that another volunteer performing clerical duties had mistakenly listed Smith on the
form in question as the child's designated advocate.
Nevertheless, because of other concerns regarding Smith's activities in her dual roles, White testified
that she had become convinced that it was not in the best interest of CAP for Smith to continue acting
as volunteer advocate. White expressed two basic concerns in her decision to sever Smith's
participation. First, she expressed concern that Smith's open criticism of local DHS employees'
performance could hamper her ability to work closely with those same DHS employees as an
advocate on behalf of a particular child. Secondly, she was concerned that Smith would have the
opportunity to use information gained while serving as a child advocate as evidence to support her
general complaints against the local DHS that she was making at the state level.
After her decision to end Smith's participation as a child advocate volunteer, there was a meeting of
the CAP Executive Committee to discuss White's decision. White informed those present of the
circumstances surrounding her decision and, in the course of reporting the facts, informed the
members of her remark to Walley Flowers about Smith having a key to the CAP offices. At that same
meeting, White distributed to all present a written summary of her recollection of the critical events,
which included a complete recitation of the facts as to how Smith's name had incorrectly but
inadvertently been listed as the designated advocate for the particular child in question.
....
The trial court, after hearing the evidence, determined that all of White's statements were made in the
course of her official duties as director of CAP and were made to others engaged in their capacity as
executive committee members. As such, the trial court ruled as a matter of law that White's statements
were subject to a qualified privilege that shielded White from liability for her statements unless Smith
could prove that the statements were made with malice. The jury was instructed accordingly and
returned a verdict for Smith in the amount of $5,000 plus court costs of $1,565.06.
Smith v. White, No. 1999-CA-00455-COA ¶¶ 4-7, 13 (Miss. Ct. App. Jan. 9, 2001).
¶3. Petesy Smith appealed from the circuit court judgment, and Tammy White cross-appealed. The Court
of Appeals, in a 7-1 decision, with two Judges not participating, reversed and rendered. The Court of
Appeals found that Tammy White, as CAP director, had a qualified privilege to make the remarks that she
made. The Court of Appeals next found that White's remark that Smith had a key to the CAP offices was
not slanderous because, first, it was true, and second, there was insufficient evidence to show that the
remark was intended to impute a criminal act to Smith or that it was capable of being understood and was
understood by those who heard it to charge Smith with committing a criminal act. The Court of Appeals
finally found that there was insufficient evidence to show that Smith was defamed by remarks by White to
the effect that Smith's criticism of the DHS could harm her ability to work with the DHS social worker that
might be assigned to a child that Smith was concerned with.
¶4. On certiorari Petesy Smith argues that the statements in question were not subject to a qualified
privilege, that the statements were slanderous per se and that the jury's finding of malice on behalf Tammy
White required the issue of punitive damages to be submitted to the jury.
DISCUSSION
I. The COA erred in substituting its judgment for the judgment of the circuit court and jury.
¶5. Petesy Smith first cites several cases, including Long v. Harris, 744 So. 2d 839 (Miss. Ct. App. 1999)
; Downtown Grill, Inc. v. Connell, 721 So. 2d 1113 (Miss. 1998); Sessums v. Northtown
Limousines, Inc., 664 So. 2d 164 (Miss. 1995); Straight v. Brinson, 246 So. 2d 132, 149 So. 2d 515(1963); and New Orleans & Northeastern R. Co. v. Lewis, 214 Miss. 163, 58 So. 2d 486 (1952), for
the standard of review for a jury verdict, for the deference an appellate court must give to a jury verdict,
and for proposition that a jury decides fact questions and its decision on this should be upheld, and that the
reviewing court may not reverse a jury verdict merely because it disagrees with the verdict. Petesy Smith
argues that the Court of Appeals erred in reversing the jury verdict in her favor because of its finding that
her case did not meet the standards as presented in the cases listed above.
¶6. The Court of Appeals rejected Petesy Smith's argument that the statements in question constituted
slander per se. This Court agrees in light of the recent decision in Speed v. Scott, 787 So. 2d 626 (Miss.
2001). As this Court stated in Speed, it is not enough that an act could be penalized under a criminal code.
Rather, the crime must be one involving moral turpitude, which has been defined as "inherent baseness or
vileness of principle in the human heart . . . shameful wickedness, so extreme a departure from ordinary
standards of honesty, good morals, justice or ethics as to be shocking to the moral sense of the
community." Speed, 787 So.2d at 633. As this Court found in Speed, the act here alleged does not rise to
such a level.
¶7. As for the existence of a qualified privilege, this Court provided the following in Louisiana Oil Corp.
v. Renno, 173 Miss. 609, 618-19, 157 So. 705, 708 (1934):
A communication made in good faith and on a subject-matter in which the person making it has an
interest, or in reference to which he has a duty, is privileged if made to a person or persons having a
corresponding interest or duty, even though it contains matter which without this privilege would be
slanderous, provided the statement is made without malice and in good faith.
¶8. We find that the qualified privilege applies to Tammy White, in her position as CAP director, in this
case. Because of this qualified privilege Petesy Smith was required to prove malice on behalf of Tammy
White as to the statements in question. The Court of Appeals found that the evidence of malice was
insufficient to support the verdict in favor of Petesy Smith. We disagree.
¶9. This Court has explained that by "actual malice," it is meant that at the time the comments were
published, the speaker either knew them to be false or made them in reckless disregard of their truth.
Speed, 787 So.2d at 631. It is clear from Tammy White's own testimony that at the time White made the
statement(s) to the executive board regarding Smith's possession of a key to the Center, she knew for a fact
that Smith had done nothing inappropriate to have her name listed on the CAP form as designated
advocate, and more importantly that Smith had not used the key to enter the Center and put her name on
the form.
¶10. The testimony regarding White's statement to the board about Smith's possession of a key is
inconsistent. White testified that in making the statement, she was merely recounting to the board the chain
of events which occurred regarding how Smith's name came to be on the form. White testified that she told
the board that she had checked the file and determined that a clerical error was the cause and that the
possibility that Smith had used the key to gain inappropriate access was not true. Though White circulated a
memo to the board stating that Smith's name came to be on the form because of a clerical error, persons
present at the meeting testified that White never told them that the possibility of Smith using the key to gain
inappropriate access to the file was not an option to be considered.
¶11. Three persons present at the meeting testified that the statement about the key was made in the context
of the board's discussing the different possibilities of how Smith's name came to be listed on the form.
James Wilkerson testified that White, in discussing the different possibilities of how Smith's name appeared
on the form, speculated that Smith could have used the key to get information from the Center. Smith
testified that after the meeting Don Brown told her White had accused her of using her key to break into the
office. Brown denied this. Brown, who first testified that the fact that Smith had a key was discussed as an
option as to how her name came to be on the form, later testified that the statement was made in jest.
¶12. Clearly, evidence was before the jury that White discussed the possibility that Smith had used her key
to the Center to have her name listed on the form when White already knew, for a fact, that Smith's name
came to be on the form because of a clerical error. Admittedly, the evidence was disputed, often within the
testimony of single witnesses. Still, the credibility of a witness is a question for the jury. In light of the
standard of review on appeal, which requires this Court to give Smith the benefit of all favorable inferences
that reasonably may be drawn from the evidence, we find that the Court of Appeals erred in its
determination that there was insufficient evidence to support the jury's determination that White had made
the defamatory statement with malice.
¶13. The Court of Appeals held that Smith failed to show that the persons to whom the statements were
published considered them to be slanderous. We find that Smith was not required to show that the persons
to whom the statements were published considered them to be defamatory.
¶14. This Court stated in Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 66, 25 So. 2d 572, 578
(1946), that "where a slanderous charge is made in plain and ordinary language, and not ambiguous as to its
slanderous aspect, it is the judgment of the jury, and not that of the hearers of the words, that must
determine whether or not they are slanderous. . . ." The Court of Appeals determined that White's remark
that Smith possessed a key to the Center is capable of more than one interpretation, one of which is not
slanderous. Regarding the possible non-slanderous interpretation of the statement, the Court of Appeals
explained that "the first time the statement was made was when the investigation of the matter was in its
earliest stages and could easily have been interpreted as nothing more than a mention of a possibility that
should be explored, rather than a direct accusation of criminal activity." Smith at ¶ 21. This determination
misses the mark. First, it is clear from the record that by the second time the statement was made, the
possibility was not one to be explored. Furthermore, possibility or not, White's statement regarding the key
could not be interpreted in any way other than that alleged by Smith - that is, that Smith had a key to the
Center and could have used it to gain access to the Center's files - particularly in light of the context in
which the statement occurred. Smith was not required to demonstrate that the hearers viewed the statement
as defamatory.
¶15. As the judgment of the circuit court in favor of Petesy Smith is being reinstated, this leaves the question
of whether the trial court should have allowed the issue of punitive damages to have been considered by the
jury. The jury in this case was instructed that it could only find in favor of Petesy Smith if it found that
Tammy White acted with malice. Its finding in favor of Petesy Smith necessarily included a finding of malice.
As White acted with malice, the question of punitive damages should have been submitted to the jury. See
Lawrence v. Virginia Ins. Reciprocal, 979 F.2d 1053, 1057 (5th Cir. 1992).
CONCLUSION
¶16. Tammy White's statements were not slanderous per se, and the qualified privilege was applicable to
those statements unless they were made with malice. Because we agree that the evidence is sufficient to
support the jury's finding that the statements were made with malice, the judgment of the Court of Appeals
is reversed, the jury's verdict in favor of Petesy Smith is reinstated, and this matter is remanded to the circuit
court for submission of the issue of punitive damages to a new jury.
¶17. JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE VERDICT IN FAVOR
OF PETESY SMITH IS REINSTATED AND THE MATTER IS REMANDED TO THE
WARREN COUNTY CIRCUIT COURT FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.
BANKS AND McRAE, P.JJ., MILLS, COBB, DIAZ AND EASLEY, JJ., CONCUR.
WALLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
PITTMAN, C.J.
WALLER, JUSTICE, DISSENTING:
¶18. To meet the New York Times standard for actual malice, the falsehood must be substantial.
Masson v. New Yorker Magazine, 501 U.S. 496, 527, 111 S. Ct. 2419, 2438, 115 L. Ed. 2d 447(1991) (White, J., dissenting). The Supreme Court has accorded public figures as well as public officials
recovery of damages for the publication of "defamatory falsehood whose substance makes substantial
danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme
departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers."
Curtis Publishing Co. v. Butts, 388 U.S. 130, 155, 87 S. Ct. 1975, 1991, 18 L. Ed. 2d 1094 (1967)
(emphasis added).
¶19. In the case presently on review, White's audience understood that the story about Smith having an
office key was merely part of how White conducted the investigation into why Smith's name was
erroneously placed in the case file. White's statements did not make "substantial danger to [Smith's]
reputation apparent," and simply do not constitute actual malice. I see this controversy between White and
Smith as nothing more than what was before us in Speed v. Scott, 787 So. 2d 626 (Miss. 2001).
¶20. I therefore dissent and would affirm the Court of Appeals' findings.
PITTMAN, C.J., JOINS THIS OPINION.