Creps v. Waltz

I respectfully dissent from the majority of the court herein. Upon examination of the fourteen depositions filed on behalf of the appellant herein, together with the exhibits attached thereto, I find that reasonable minds can come to more than one conclusion and that summary judgment on behalf of the appellee is contrary to law.

In the case of Fawcett v. G.C. Murphy Co. (1976), 46 Ohio St.2d 245 [75 O.O.2d 291], the Supreme Court, at page 253, stated, in pertinent part:

"On the issue of privilege, the trial court gave the following instructions to the jury:

"``The second defense is that the words spoken were privileged. That simply means that under the circumstances it was right for the defendant or all right for the defendant to say them. A communication is privileged when it is made in good faith on a subject in which the speaker has an interest or duty to another with a corresponding interest or duty even though what is said may be slanderous and untrue.

"``For example, you heard evidence here of a conference in the office between Mrs. Ankeny, the plaintiff, and Havens, the manager, and Elnora Schmidt, the personnel director, in which this whole cookie business was discussed and plaintiff was then discharged. Both Havens and Schmidt had duties and interest in the conduct of the company business and in the conduct of the employees. So they had a right and a duty to talk about the cookies being in Mrs. Ankeny's locker and as long as they spoke in good faith, even though what they said was not true, it is privileged and cannot form the basis of a charge of slander.

"``If the defendant has proven to you by a preponderance of the evidence that all the communications made by Havens or other managerial employees of the Murphy Co. about Mrs. Ankeny were made in good faith and were made only to others with a similar business interest or duty, then they would be privileged and you would then return verdicts for the defendants.

"``You notice that I said, if these communications were made in good faith. If the slanderous words were motivated by malice, as I have previously defined it, they are not privileged and defendant would be liable, whatever his relationship to the party to whom this slander was communicated.

"``To conclude then, if the plaintiff has failed to prove by a preponderance of the evidence that the defendant maliciously charged her before a third person with being a thief or if the defendant has shown by a preponderance of the evidence that whatever was said was true or was said under privileged circumstances, then you would return a verdict for the defendant on this first cause of action, the claim for slander.

"``On the other hand, if the plaintiff has proven by a preponderance of the evidence that the defendant maliciously charged her before a third person with being a thief and the defendant has failed to establish by a preponderance of the evidence the truth of the words or that they were spoken under privileged circumstances, then you would return a verdict for the plaintiff * * *.'"

The Supreme Court in Fawcett, supra, quoted from the case ofHahn, supra, cited in the majority opinion herein.

My examination of the cases of Fawcett, supra, and Hahn,supra, reveals that the determination as to whether or not a privilege exists in a libel case is generally a question of fact for the jury. The record in the case sub judice indicates that questions of fact exist first, as to the good faith of the appellees, second, as to the exact interest to be upheld, third, whether the statement contained in the alleged libelous letter was limited in its scope to this purpose, fourth, whether a proper occasion existed for the publication of the letter, fifth, whether the publication itself was in a proper manner, and sixth, whether it was limited to proper parties only.

Even if the jury should determine that a qualified privilege existed, a question of fact remains as to whether the publication of the alleged libelous letter was motivated by malice.

It is interesting to note, at page 255, of Fawcett, supra, that the Supreme Court stated:

"It is evident that the trial court's instructions to the jury on the issue of privilege constituted a correct statement of the law of qualified privilege.

"It is the opinion of this court that, on the record presented, it would have been improper for the trial court to decide, as a matter of law, that there was no qualified privilege or that it had not been exceeded by defendants."

I respectfully submit, on the record presented herein, it was improper for the trial court to decide, as a matter of law, that a qualified privilege did exist; that even if a qualified privilege existed, it was not exceeded by appellee; and that the publication was not motivated by malice.