McMillion v. Armstrong, 238 Ark. 115

Paul Ward, Associate Justice. This litigation grows out of certain alleged defamatory statements made by appellant, Dr. Stephen D. McMillion, about appellee, George V. Armstrong. The jury returned a verdict in favor of appellee and against appellant in the amount of $5,000 compensatory damages and $500 punitive damages. On appeal the principal issue is whether or not appellant’s statements were privileged. To clarify the issues later discussed wé think it expedient to set out below certain undisputed background facts. Background.

The North Little Rock Airport is a subdivision of the North Little Rock City G-overnment. The Airport is under the immediate control of a commission composed of five members. As of August 7, 1962, the members of the commission were W. F. Laman, Mayor; Harold Simons, Manager; Eddie Holland; S. W. (Bud) Bowker; and, C. F. Allen. At times pertinent to this litigation the commission was considering the construction of an administrative building on the airport grounds, and Robert L. Moore, a •contractor, was figuring with the commission on constructing said building.

While Moore was attempting to confer with Simons and Armstrong he got the impression they were proposing some type of unethical deal and he reported the “deal” to appellant. Appellant in turn reported the alleged “deal” to the Mayor, the members of the commission, and his alderman. Pleadings.

Early in 1963 appellee and Harold Simons filed a complaint (and an amended complaint) •charging appellant with making false and defamatory statements (on August 7, 1962) about Armstrong in words as follows: “A contractor has been in touch with me and has told me that you tried to get some work done on your home and have the cost of the work included in the price •charged to the City of North Little Rock for the airport administration building. I believe the man, and I know you did it.

I will not serve on the airport commission with a man of your caliber, and either you are going to resign or I am.” It was also alleged that statements óf import were made by appellant on other occasions and to other people, and that snch defamatory statements were calculated to cause, and did in fact canse, great injury to appellee’s reputation. The complaint (and amended complaint) contained similar alleged statements by appellant against Simons, but Simons (for undisclosed reasons) later abandoned his

part in the action. To the above complaint appellant .entered a general denial, and also stated “that if any statements were made that referred to these plaintiffs in any manner, that the statements would be privileged communication and not subject to liability . . . [and] that if any statements were made they were the truth. ’ ’ Judgment was entered in accord with the jury’s verdict, and on appeal appellant relies on four separate grounds for a reversal. . However, under the view we take, it will be necesasry to discuss only one ground or point.

It is our conclusion that the judgment must be reversed because of the error contained in Instruction Number I given by the trial court. The pertinent parts of the instruction read: “Yon are instructed that as a matter of law that the communication involved in this action was not privileged, under all of the circumstances in evidence. Also, you are instructed that there is no evidence that would justify you in finding that the words spoken were true. Therefore, since there is no dispute as to the import ofi the words spoken by Stephen D. McMillion, you are instructed that they are actionable per se, and George V.

Armstrong is entitled to compensatory damages as a matter of law.” There are other portions of the instruction which need not be copied, but which may be referred to later. At least two vices are apparent in the-court’s instruction which calls for a reversal. They are: (

a) the court usurped the function of the jury and; (

b) it deprived appellant of the defense of good faith and conditional privilege. (

a) Assuming for the purpose of this opinion only, that it was incumbent upon appellant to show appellee proposed an unethical “deal”, we think the testimony makes a jury question on that point. Since the jury has a right to accept or reject testimony, to believe or not to believe any witness, and to draw reasonable inferences, we refrain from setting out the testimony, but refer only to the portions favorable to appellant.

Moore said he made two or three attempts to get the plans for the airport building from Simons, but that Simons failed to produce them — that finally Simons asked him to come to his house late one evening and get the plans ■ — ■ that when he arrived Simons did not produce the plans and showed no interest in them but pointed out certain work he wanted done on his house; then Simons (without any explanation) took him to appellee’s home where he (Moore) presumed the plans were located — that when he got there appellee (who was introduced by Simons as a commissioner but who in fact was not) proceeded to show him what he wanted done to his house — that appellee asked no questions about price but said the gate would be open for him to come and go when he pleased.

From these facts and circumstances he concluded Simons and appellee wanted him (in order to get the contract) to repair their houses without cost to them. Moore met with the other commissioners on August 6 and talked to them by phone on August 7 (1962) and each time stated he thought an unethical “deal” was being proposed — he stated each time he didn’t remember what exact words were spoken but it all amounted to a “deal”. In the case of Thiel v. Dove, 229 Ark. 601, 317 S.

W. 2d 121, we said: “On the other hand, it is clearly improper for the court to tell the jury that a specific fact in evidence is sufficient to support an inference of guilt, negligence, or the like. Blankenship v. State, supra [55 Ark. 244, 18 S. W. 54]; Smith v. Jackson, 133 Ark. 334, 202 S. W. 227; Coca-Cola Bottling Co. of Southeast Arkansas v. Bell, 194 Ark. 671, 109 S. W. 2d 115.

It is for the jury to say whether the particular inference should be drawn from all tlie proof in the case, and consequently the court comments on the weight of the evidence when it declares that a certain inference may be drawn from a specific fact.” (

b) In our opinion it was not necessary, however, for appellant to prove appellee actually proposed an unethical “deal” but only to show that he acted in good faith when he passed on to the other commissioners the information he had received from Moore. The record is replete with evidence that Moore meant for appellant to understand Armstrong was proposing an unethical “deal”. He made this clear to appellant (and to three commissioners) at the meeting on August 6 and also (over the phone) to the same people and the Mayor on August 7.

Also, there is ample testimony in the record from which the jury could find that appellant acted only in good faith and for the best interest of the city and the commission when he talked about this matter to others. In most instances he was seeking advice as to what action should be taken by him. It was not until he was advised by his fellow commissioners to do so that he confronted appellee with the charge (at a meeting of the Mayor and the commissioners) on the night of August 7.

In addition, we find nothing in the record to indicate that appellant mentioned the matter to anyone except to the other commissioners (including the Mayor) and to the alderman of his own ward. It is established by the record that the council appoints the commission members. Under the facts and circumstances outlined above it was for the jury (and not the court) to say whether appellant acted in good faith. If appellant did act in good faith, he had a conditional privilege to convey the information to those with whom he was associated in a common cause. Rest., Tox’ts, § 596. In the case of Bohlinger v.

Germaina Life Insurance Company, 100 Ark. 477, 140 S.

W. 257, we said: “A communication is held to be qualifiedly privileged when it is made in good faith upon any subject-matter in which the person making the communication lias an interest or in reference to which he has a duty, and to a person having a corresponding interest or duty, although it contains matter which, without such privilege, would be actionable.” We recognize the possibility that appellant may have started out in good faith, but that he acted unreasonably later (in not apologizing to appellee) when he learned more about the facts, and thereby abused the conditional privilege which he enjoyed.

However, that was also a matter for the jury and not for the court to decide. In Thiel v. Dove, supra, we also said: “A conditionally privileged occasion is also abused if the speaker is motivated by malice rather than by the public interest that calls the privilege into being . . . We think the proof made the existence of malice a question for the jury.” See also Rest., Torts, § 599. It is true that in this case (and in said Instruction No.

I) the court permitted the jury to find whether or not appellant acted with malice, and it is also true that the jury found he did act with malice. Those facts do not, however, ciire the other errors in the instruction above pointed out. Had the jury found (if permitted to do so) that appellant was protected by a conditional privilege it might have found differently as to malice. The judgment of the trial court is reversed and the cause is remanded for a new trial. Reversed and remanded. Harris, C.J., and Robinson and Holt, JJ., dissent.