Bookout v. Griffin , 97 N.M. 336 ( 1982 )

OPINION

FEDERICI, Justice.

This is an appeal from the District Court in Otero County. Plaintiff (appellant) sought damages for libel, wrongful interference with contract, and conspiracy. Defendants, Dr. Schleicher and Mr. Nohynek, were never served with process. At the close of plaintiff’s case, the court directed a verdict for defendant, Dr. Wiley. A directed verdict was also entered for all but the libel charge as to defendants (appellees), Dr. Griffin and Albany Medical College. The jury returned a verdict for plaintiff and awarded plaintiff $50,000 damages. The trial judge granted judgment notwithstanding the verdict, or in the alternative, a new trial. Plaintiff appeals.

As the Court of Appeals could not agree on a proposed opinion, this case has been certified to this Court pursuant to Section 34-5-14(C), N.M.S.A.1978 (Repl.Pamp.1981).

I.

We affirm the conclusions of the trial court in directing a verdict since there was no evidence presented to support appellant’s theories of wrongful interference with contract and conspiracy.

The additional issue we discuss on appeal is whether the trial court erred in granting the judgment notwithstanding the verdict. We affirm the trial court.

II.

The facts show that appellant, Mr. Book-out, was employed as a veterinarian technician by appellee, Albany Medical College, at its chimpanzee breeding colony located at Holloman Air Force Base. Appellee, Dr. Griffin, was acting director of the Holloman facility, and appellee, Dr. Wiley, was a clinical veterinarian working in Mr. Book-out’s section at the time of the incident involved in this case. Dr. Schleicher and Mr. Nohynek were scientists from Germany who visited the Holloman facility together on August 26, 1975.

On the day following their visit, Dr. Schleicher and Mr. Nohynek wrote a letter addressed to, Dr. Rosenblum (director of out-of-state facilities for Albany Medical College), Mr. Jack Weaver (personnel manager at the Holloman facility), and Dr. Griffin (appellee). The letter notes, that copies were to be sent to, Dr. Korte (head of the German research group in Germany which had an agreement with Albany Medical College regarding the use of the Holloman facility), Dr. Coulston (Dr. Griffin’s supervisor, and director of the Albany Medical College units of which the Holloman facility was a part), and Mr. Murray (supervisor of the chimpanzee section of the Holloman facility and Mr. Bookout’s immediate supervisor.

The letter was actually delivered to Dr. Griffin by Dr. Mueller (head of the group of German scientists working with Albany Medical College). The letter stated that during their visit, Mr. Bookout directed foul language at Dr. Schleicher and Mr. Nohynek, part of which referred, in crude terms, to Schleicher and Nohynek’s nationality. The letter demanded a formal apology and requested that formal steps be taken to prevent similar incidents in the future.

Upon receipt of the letter, Dr. Griffin contacted Dr. Coulston, Dr. Wiley and Mr. Weaver. Following discussions with these parties, it was determined that Mr. Bookout should be discharged from his employment. Following that determination, Dr. Griffin contacted Mr. Murray and informed him of the decision.

Dr. Griffin testified that the incident regarding Dr. Schleicher and Mr. Nohynek was not an isolated one as discharge had been considered following an incident about a week prior to Mr. Bookout’s actual firing. The incident involved a report by Mr. Book-out to Dr. Griffin that Mr. Bookout suspected certain parties in the chimpanzee section were doing surreptitious research on the chimpanzees, and said if he, Mr. Bookout, caught any such person responsible, either he would kill that person himself or would place that person in a cage with a male chimpanzee and assist him in killing that person. Mr. Bookout believed that hormones were being injected into the female chimpanzees, the effect of which he believed would be a drop in the number of chimpanzees born to the breeding lab. Dr. Griffin testified that he investigated the allegations but concluded that they were without substance, and noted that Mr. Bookout’s prognostication regarding the decrease in births did not come to pass. Dr. Griffin also stated that he interpreted Mr. Bookout’s threats to constitute a potentially dangerous situation.

Appellees introduced evidence that it was customary for Mr. Bookout to use coarse language and to speak in derrogatory terms about Germans. Mr. Bookout himself testified that he sometimes used salty language. Also introduced was an altercation between a police officer and Mr. Bookout which took place about five months prior to the incidents in this case wherein the police officer was bitten on the hand.

Mr. Bookout denied the allegations in the letter, and testified that there was proof regarding the alleged surreptitious research. He testified that special locks to the chimpanzee section had been broken, that footprints appeared in powder which had been left around the chimpanzee area to determine whether anyone had been in the area during unauthorized periods, and that the behavior of some of the female chimpanzees had become noticeably more aggressive.

Mr. Bookout claims that Dr. Griffin and Dr. Wiley never attempted to investigate the truth of the allegations in the letter before deciding to discharge Mr. Bookout. Dr. Wiley testified he assumed the letter was true, while Dr. Griffin testified that he discussed the matter personally with Mr. Nohynek before concluding the allegations in the letter were accurate.

During the trial, appellant waived any claim for damages due to harm to his reputation, but claimed damages for lost earnings, emotional distress, and punitive damages. Appellant claims that the republication of the letter was the proximate cause of his discharge and his subsequent inability to find employment in the area of chimpanzee research. He argues that facilities such as that from which he was discharged are few in number, and once officials at these «facilities discovered that Mr. Bookout had been fired from the Holloman facility, they were not willing to hire him. Mr. Bookout testified that he wept when he heard he was fired and that he suffered emotional distress for at least two years after losing his job.

Appellees claim a qualified privilege and contend that any emotional distress suffered by Mr. Bookout was due to being fired rather than to the contents of the letter.

III.

Generally, a statement is considered defamatory if it has a tendency to render the party about whom it is published contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or hinder virtuous men from associating with him. McGaw v. Webster, 79 N.M. 104, 440 P.2d 296 (1968). Liability for defamation depends on publication. Martinez v. Sears & Roebuck, 81 N.M. 371, 467 P.2d 37 (1970).

There are a number of defenses to a charge of libel. See generally, W. Prosser, Law of Torts §§ 114-116 (4th ed. 1971). The primary defense involved in this case is that of qualified privilege. One form of qualified privilege exists where there is a good faith publication in the discharge of a public or private duty. Mahona-Jojanto, Inc., N.S.L. v. Bank of New Mexico, 79 N.M. 293, 442 P.2d 783 (1968). The privilege is abused if a person said to be privileged lacks the belief, or reasonable grounds to believe, the truth of the alleged defamation. Id.

IV.

We conclude that Dr. Griffin had a qualified privilege to republish the letter at issue, and that the privilege was not abused by the republications which he made.

The record shows that any republications, when they amounted to such, and the decision to discharge Mr. Bookout, were done within the scope of Dr. Griffin’s public duties. Also, Dr. Griffin acted reasonably under the circumstances. The record shows that the behavior attributed to Mr. Bookout in the letter was consistent with his conduct at other times.

As to the alleged harm resulting from publications to individuals beyond proper officials at the Holloman facility, proof in the record does not support appellant’s claims. The record shows that Mr. Bookout made oral inquiries regarding the possibility of employment in out-of-state facilities similar to the Holloman facility, that he was informed there were no openings, and that two prospective employers knew from sources other than Mr. Bookout that he had been fired. Yet, the record is devoid of any showing that these possible employers knew of the letter or its contents or that the refusal of anyone to hire Mr. Bookout was in any way related to the contents of the letter.

Since there was no abuse of qualified privilege, appellant is not entitled to damages for emotional distress, or for lost earnings, or to punitive damages. The trial court was correct in entering judgment notwithstanding the verdict in this case.

Appellant contends that since the issue of sufficiency of the evidence to establish abuse of privilege was first presented during appellees’ motion for judgment notwithstanding the verdict, that issue cannot now be raised on appeal. See N.M.R.Civ.P. 50(a), N.M.S.A.1978. Appellant’s claim is without merit. We note that at the close of all. the evidence, appellees moved for a directed verdict on the grounds that “there has been no evidence in this case establishing legal cuase [sic] of damages to the plaintiff as a result of any publication on behalf of Albany Medical College or Dr. Griffin.” (Emphasis added.) We are of the opinion that this statement sufficiently alerted the trial court to the issue of qualified privilege and abuse thereof, which led to his subsequent and final order granting judgment N.O.V. in which the court stated:

After reviewing all of the evidence in the light most favorable to the Plaintiff, there is neither evidence nor inference from which the jury could have found that the privilege, which the Court found to exist as a matter of law, was abused, nor could the jury have found that any publication of the documents by the Defendants proximately caused any damage to Plaintiff after Plaintiff waived damages to his general reputation.

Judgment notwithstanding the verdict is proper only when it can be said that there is neither evidence nor inference from which the jury could have arrived at the verdict. Owen v. Burn Const. Co., 90 N.M. 297, 563 P.2d 91 (1977); Romero v. Turnell, 68 N.M. 362, 362 P.2d 515 (1961). Although it is true that judgments notwithstanding the verdict are not proper where there is substantial conflicting evidence, Powell v. Lititz Mutual Insurance Company, 419 F.2d 62 (5th Cir. 1969), and that the trial court must view the evidence in the light most favorable to the party resisting the motion, Archuleta v. Johnston, 83 N.M. 380, 492 P.2d 997 (Ct.App.), cert. denied, 83 N.M. 379, 492 P.2d 996 (1971), we believe that the only reasonable conclusion which could be reached on the evidence presented in the instant case is that which was reached by the trial judge.

In addition to what has been said above, we are unable to detect from the record any improper motive on the part of Dr. Griffin when he published the letter or in the eventual discharge of Mr. Bookout. Mr. Book-out himself testified that he knew of no conspiratorial activities on the part of his supervisors to have him discharged. There is evidence that Mr. Bookout was involved in conflicts with some of his nonsupervisory associates, and that one of those associates was a good friend of Mr. Nohynek, but there is no evidence or inference that any of these associates took part in the decision to discharge Mr. Bookout.

The judgment of the trial court is affirmed.

IT IS SO ORDERED.

PAYNE and RIORDAN, JJ., concur. EASLEY, C. J., dissents. SOSA, Senior Justice, dissents and files an opinion.