
    Dr. Anne LAZAR v. Lionel GREMILLION et al.
    No. 6673.
    Court of Appeal of Louisiana. First Circuit.
    June 13, 1966.
    Dissenting Opinion June 20, 1966.
    Rehearing Denied July 8, 1966.
    
      Richard C. Cadwallader, Baton Rouge, for appellant.
    William T. Bennett, Clinton, Thomas W. Landry, H. K. Sweeney, Baton Rouge, for appellees.
    Before ELLIS, LOTTINGER, LANDRY, REID and BAILES, JJ
    
    
      
      Due to the death of ELLIS, X, prior to the rendition, this opinion is rendered by LOTTINGER, LANDRY and BAILES, XL; Reid, X, dissented.
    
   LOTTINGER, Judge.

This is a suit by Dr. Anne Lazar, as petitioner and against Lionel Gremillion and Allan M. Johnstone, M.D., as defendants, in solido for damages in the sum of $50,000.00 for libel. The defendants filed an exception of no cause and no right of action. The exception of no right of action was overruled and the Lower Court sustained the exception of no cause of action and dismissed the suit. The petitioner has taken this appeal.

The pertinent portion of the petition indicates that on March 11, 1965, the defendants signed a letter on the stationery of the East Louisiana State Hospital, Jackson, Louisiana, addressed to petitioner, and caused same to be delivered to her, wherein they notified her that her status as Physician II was being terminated at the close of business on March 15, 1965. Petitioner was a probationary employee holding said status. Defendant, Lionel Gremillion, was the Superintendent of the East Louisiana State Hospital, and defendant, Allan M. John-stone, M.D., was the Clinical Director of said institution.

The petition alleges that the letter, or copies of same,

“ * * * were published and circulated to and seen by various persons connected with the East Louisiana State Hospital, the State Department of Hospitals, and the State Department of Civil Service.”

The letter, which according to petitioner contains the libelous statements, is as follows :

“Pursuant to the authority in the Civil Service Ruling 9.1E, you are hereby advised that you will be separated from your probationary appointment as Physician II effective at the close of business March 15, 1965.
You are being separated because of the following offenses during your probationary period:
Your efficiency as a physician in the Medical Division of the Hospital has been impaired because of:
1. Frequent unauthorized absences from your work area.
2. Creation of disturbances among fellow employees detrimental to morale among your fellow employees and ultimately to patient care.
3. Failure to carry out duties specifically assigned by the Director of the Medical Division.
4. Instances in which your correspondence with other hospitals relative to patient care have been sarcastic and disruptive to good interagency relationships.
5. Unauthorized correspondence with other agencies without prior clearance through the line of authority with the Director of the Medical Division, the Clinical Director, and the Superintendent.
6. Reports of conduct unbecoming a physician in the presence of patients and subordinate employees.”

Paragraph XI of the petition recites that the accusation made in the letter “ * * * constituted unwarranted, false, defamatory, malicious and libelous charges and attacks against the plaintiff’s, and maliciously contrived and intended to injure her reputation for professional skill, ability and integrity, and her personal and professional reputation.”

The exception of no cause or right of action filed by defendants alleged that the petition alleges no facts to support the contention of “malice”, that there is no allegation that said letter was circulated to or in fact seen by anyone who did not either have an affirmative duty to act in the premises in his official capacity and thus have the need to know all information concerning plaintiff as an employee. The defendants furthermore alleged the defense of the privileged communication.

In its judgment maintaining the exception of no cause of action, the Lower Court held that there were no allegations in the petition that the publication was made to any unauthorized person under the doctrine of qualified privilege, and sustained the exceptions of no cause of action.

Rule 9.1-Sec. E of the Louisiana Civil Service Rules, provides that:

“A probationary employee may be removed by his appointing authority at any time during the probationary period, providing that the appointing authority shall furnish the employee and the Director reasons therefor in writing.”

It is the contention of the defendants, therefore, that the letter in question was nothing more and nothing less than the performance of the defendants’ statutory duty as public officials. The facts also disclose that a probationary employee is given no right of appeal to the Civil Service Commission, and petitioner therefore contends that her only right of relief is to the Court.

In its reasons for judgment, the Lower Court said:

“This Court is aware of the large multitude of state personnel, the work records, supervision and payroll records involved in order to operate with any degree of efficiency, and under Civil Service, a finding must be made that defendants’ action was a conditional or qualified privilege as a result of a duty imposed upon them in their supervisory position. To hold otherwise, unless there is an abuse in publication, would be to subject state officials to such a penalty as would ren-, der their position untenable.”

We are in accord with the above quotation from the reasons given by the Lower Court, however, this matter is before us on an exception of no cause of action in which the Court must consider as true all well pleaded facts alleged in the petition.

The courts of this state have repeatedly held that a privileged communication does not extend to the publication of various statements or fact concerning public officers. Martin v. Markley, 202 La. 291, 11 So.2d 593.

In Fontenot v. Fontenot, 235 La. 488, 104 So.2d 431, the District Court dismissed the petitioner’s suit in slander on an exception of no cause of action. In reversing the decision of the Lower Court, the Supreme Court said:

“In Mundy v. Gentilly Oaks, 227 La. 118, 78 So.2d 530, 533, a charge of libel and slander was held by the district court to state no cause of action. We overruled the exception, being of the opinion that ‘While the mentioned statements are not slanderous per se, plaintiff has specifically alleged that they were false and were made maliciously with resultant injury to his personal and business reputation. These allegations, under our jurisprudence, are sufficient for stating a cause of action * * *. Fellman v. Dreyfous, 47 La.Ann. 907, 17 So. 422; New Iberia Extract of Tabasco Pepper Co. v. E. McIlhenny’s Son, 132 La. 149, 61 So. 131; Vicknair v. Daily States Publishing Co., 153 La. 677, 96 So. 529. Whether or not they can and will be proved is a question not presently before us.’
“(1) Martin v. The Picayune, 115 La. 979, 40 So. 376, 377, 4 L.R.A.,N.S., 861, is authority for the proposition that doubt as to whether the petitioner states a cause of action in defamation should be resolved in favor of trial on the merits.”

We believe that the petitioner is entitled to her day in Court. It might well be true that, after a trial on the merits, it will be found that she is unable to sustain her position, however, this is a matter to be determined after evidence has been adduced upon trial on the merits.

For the reasons assigned, the judgment of the Lower Court is reversed, and this matter is remanded to the Lower Court for further proceedings, all costs of this appeal shall be paid by defendants.

Judgment reversed and remanded.

REID, Judge

(dissenting).

I believe that the exception of no cause or right of action filed by the defendants that the petition alleged no facts to support the contention of “malice” and that there is no allegation that the said letter was circulated to, or in fact seen by anyone who did not either have an affirmative duty to act in the premises of his official capacity, and thus have the need to know all information concerning plaintiff as an employee, should have been sustained. The doctrine of privileged or qualified communication is in my opinion sufficient to warrant the decision by the Judge of the Lower Court.

Defendants were under a statutory duty to inform the plaintiff, or any other probationary employee, that his services had been terminated and furnish the said employee and the Director reasons therefor in writing. See Civil Service Rule 9.1-Sec. E.

There were no allegations in the petition that the publication of the alleged libellous letter was made to any unauthorized State Officer at the Hospital, nor that the publication was made to Departments or employees other than those of the Hospital or Civil Service, nor that any of the named parties abused the knowledge by re-publication to unauthorized persons.

The Trial Judge ordered the plaintiff to amend her petition within fifteen days to make these allegations or that the exception of no cause of action would be sustained and the petition dismissed at the cost of plaintiff. Plaintiff elected not to amend her petition and accordingly the Judge signed a judgment sustaining the exception of no cause of action.

If, arguendo, we assume that the mere performance of defendants’ statutory duty constituted “publication” of the letter in a legal sense then beyond any shadow of a doubt it was a privileged communication and the defendants are entitled to immunity granted concerning privileged communications.

“The rule with regard to such communication as alleged in the instant case is so well-settled as to be virtually axiomatic :
A communication made in good faith, upon any subject matter in which the party has an interest, or in reference to which he has a duty, either legal, moral, or social, if made to a person having a corresponding interest or duty is qualifiedly privileged. (Emphasis added)
Oakes v. Walther, 179 La. 365 [154 So. 26]
Miller [, Smith and Champagne] v. Capital City Press, 142 So.2d 462 (La.App.)
McGee v. Collins, 156 La. 291 [100 So. 430, 34 A.L.R. 336]
Bayliss v. Grand Lodge, 131 La. 579 [59 So. 996]
Richardson v. Cooke, 129 La. 365 [56 So. 318]
Buisson v. Huard, 106 La. 768 [31 So. 293, 56 L.R.A. 296]
This rule was elaborated in Toomer v. Breaux, La.App., 146 So.2d 723, quoted with approval in the recent celebrated case of Gaillot v. Sauvageau, La.App., 154 So.2d 515:
‘In other more numberous instances, a publication enjoys a “qualified” or conditional privilege, applicable if the communication is made (a) in good faith, (b) on any subject matter in which the person communicating has an interest or in reference to which he has a duty, (c) to a person having a corresponding interest or duty. This privilege arises from the social necessity of permitting full and unrestricted communication concerning a matter in which the parties have an interest or duty, without inhibiting free communication in such instances by the fear that the communicating party will be held liable in damages if the good faith communication later turns out to be inaccurate/ (Emphasis added)
This privilege has been extended to include even a moral duty.
Gaillot v. Sauvageau, 154 So.2d 515
Walsh v. Bertel, 187 La. 877 [175 So. 605]
Berstein [Bernstein] v. Commercial Nat. Bank, 161 La. 38 [108 So. 117]
Oakes v. Walter, 179 La. 365 [154 So. 26]
53 C.J.S. Libel and Slander 89”

The appellant argues that the fact that the letter in question was dictated to a secretary or stenographer who in turn transcribed it was a publication other than to the Director of Civil Service, however, it has been held in 53 C.J.S. paragraph 97 that business communications can be dictated to a stenographer without disturbing this privilege. Quoting from said 53 C.J.S. paragraph 97b(2):

“Business Communications; Dictation to Stenographer
If a business communication is privileged, as being made on a privileged occasion, the privilege covers all incidents of the transaction and treatment of that communication which are in accordance with the reasonable and usual course of business.
Cartwright-Caps Co. v. Fishel, [Fischel] 74 So. 278, 113 Miss. 359 [L.R.A.1918F, 566]
Watwood v. Stone’s Mercantile Agcy., (C.A.D.C.) [90 U.S.App.D.C. 156] 194 F.2d 160 [30 A.L.R.2d 772]
Mandell v. Terminal Beauty Shops, Inc., [Sup.] 201 N.Y.S.2d 233

In. Toomer v. Breaux, 146 So.2d 723, the Court, citing ALI Restatement of Torts, Section 604 and 33 Am.Jur. “Libel and Slander” Section 189, said:

However, the scope of the qualified privilege extends to the reasonably necessary use of clerical personnel in the transmission of privileged communications, as well as to the incidental publication thereof to employees or associates of either the sender or receiver, providing such publication is in the usual course of business and is reasonably necessary to effect the communication of the privileged matter to those entitled to receive it.”

While the plaintiff alleges that the letter was written maliciously there is no indication from the tone and style of the letter that it was actuated by any illwill or wanton desire to injure the plaintiff or her reputation. It was a letter terminating plaintiff’s services and advising her of the reasons therefor.

The Supreme Court of Louisiana in Flanagan v. Nicholson Publishing Company, 137 La. 588 at 595, 68 So. 964 at 966, L.R.A. 1917E, 510, held that libel to define “that deduced by the law from the willfully and wantonly doing of an unlawful act resulting in injury to another.” The officials of the Hospital were performing a legal duty which they are required to do under the law and certainly malice cannot be deduced from this.

The case of Gaillot v. Sauvageau, 154 So. 2d 515 held as follows:

“Words, even though ordinarily slanderous are not so considered when spoken by a party in the performance of a public or official duty, upon a first occasion and without malice.”

It further held:

“When a communication is held to be privileged and based upon facts reasonably believed to be true, malice is not presumed.”

For these reasons I believe that the ruling of the Trial Judge was correct and respectfully dissent from the majority opinion in this case.

Rehearing denied; REID, J., dissenting.  