Business Law and the Regulation of Business 11th Edition by Richard Mann, Barry Roberts

تمرين 22

FACTS On June 1, 1976, Larry W. Buck, an established salesman in the insurance business, began working for Frank B. Hall Co. In the course of the ensuing months, Buck brought several major accounts to Hall and produced substantial commission income for the firm. In October 1976, Mendel Kaliff, then president of Frank B. Hall Co. of Texas, informed Buck that his salary and benefits were being reduced because of his failure to generate sufficient income for the firm. On March 31, 1977, Kaliff and Lester Eckert, Hall's office manager, fired Buck. Buck was unable to procure subsequent employment with another insurance firm. He hired an investigator, Lloyd Barber, to discover the true reasons for his dismissal and for his inability to find other employment.
Barber contacted Kaliff, Eckert, and Virginia Hilley, a Hall employee, and told them he was an investigator and was seeking information about Buck's employment with the firm. Barber conducted tape-recorded interviews with the three in September and October of 1977. Kaliff accused Buck of being disruptive, untrustworthy, paranoid, hostile, untruthful, and of padding his expense account. Eckert referred to Buck as ''a zero'' and a ''classical sociopath'' who was ruthless, irrational, and disliked by other employees. Hilley stated that Buck could have been charged with theft for certain materials he brought with him from his former employer to Hall. Buck sued Hall for damages for defamation and was awarded over $1.9 million by a jury-$605,000 for actual damages and $1,300,000 for punitive damages. Hall then brought this appeal.
DECISION Judgment for Buck affirmed.
OPINION Junell, J. Any act wherein the defamatory matter is intentionally or negligently communicated to a third person is a publication. In the case of slander, the act is usually the speaking of the words. Restatement (Second) Torts § 577 comment a (1977). There is ample support in the record to show that these individuals intentionally communicated disparaging remarks to a third person. The jury was instructed that ''Publication means to communicate defamatory words to some third person in such a way that he understands the words to be defamatory A statement is not published if it was unauthorized, invited or procured by Buck and if Buck knew in advance the contents of the invited communication.'' In response to special issues, the jury found that the slanderous statements were made and published to Barber.
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A defamer cannot escape liability by showing that, although he desired to defame the plaintiff, he did not desire to defame him to the person to whom he in fact intentionally published the defamatory communication. The publication is complete although the publisher is mistaken as to the identity of the person to whom the publication is made. Restatement (Second) of Torts § 577 comment l (1977). Likewise, communication to an agent of the person defamed is a publication, unless the communication is invited by the person defamed or his agent. Restatement § 577 comment e. We have already determined that the evidence is sufficient to show that Buck did not know what Kaliff, Eckert or Hilley would say and that he did not procure the defamatory statements to create a lawsuit. Thus, the fact that Barber may have been acting at Buck's request is not fatal to Buck's cause of action. There is absolutely no proof that Barber induced Kaliff, Eckert or Hilley to make any of the defamatory comments.
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When an ambiguity exists, a fact issue is presented. The court, by submission of proper fact issues, should let the jury render its verdict on whether the statements were fairly susceptible to the construction placed thereon by the plaintiff. [Citation.] Here, the jury found (1) Eckert made a statement calculated to convey that Buck had been terminated because of serious misconduct; (2) the statement was slanderous or libelous; (3) the statement was made with malice; (4) the statement was published; and (5) damage directly resulted from the statement. The jury also found the statements were not substantially true. The jury thus determined that these statements, which were capable of a defamatory meaning, were understood as such by Barber.
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We hold that the evidence supports the award of actual damages and the amount awarded is not manifestly unjust. Furthermore, in responding to the issue on exemplary damages, the jury was instructed that exemplary damages must be based on a finding that Hall ''acted with ill will, bad intent, malice or gross disregard to the rights of Buck.'' Although there is no fixed ratio between exemplary and actual damages, exemplary damages must be reasonably apportioned to the actual damages sustained. [Citation.] Because of the actual damages [$605,000] and the abundant evidence of malice, we hold that the award of punitive damages [$1,300,000] was not unreasonable. ***
INTERPRETATION The key elements of defamation are that the statements made are false, injure the plaintiff's reputation, and are published.
ETHICAL QUESTION Did Hall's employees act ethically? Did Buck act ethically in hiring an investigator to obtain the information? Explain.
CRITICAL THINKING QUESTION How should a company respond to inquiries for information about former or current employees? Explain.