April 3, 1963 —
April 30, 1963.
APPEAL from a judgment of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Stephen J. Hajduch of Milwaukee.
For the respondent there was a brief and oral argument by Robert G. Polasek of Cudahy.
Briefs amici curiae were filed by Hart, Kraege, Jackman Wightman and F. Halsey Kraege, all of Madison, for the Wisconsin Education Association, and by Irving P. Mehigan of Milwaukee, for the Milwaukee Suburban Council of Teachers' Associations.
Hett brought this action to recover damages for injury to his professional reputation from an allegedly libelous publication by Ploetz. The trial court granted Ploetz's motion for summary judgment. From this judgment Hett brings this appeal.
From 1956 to 1959 Hett had been employed as a speech therapist in the school system of the city of Cudahy, Wisconsin. His schedule required that he travel to six different schools and teach those pupils who were in need of his specialty. He had a Master's degree in speech therapy but did not have a permanent teacher's license and had been refused one after making numerous applications.
Ploetz was appointed superintendent of the Cudahy school system in the summer of 1958. As superintendent he became acquainted with Hett and had given him a favorable recommendation on his fourth application for a permanent teacher's license.
Based upon their analysis of Hett's qualifications, the principals of the six schools in which Hett taught reported to Ploetz that they did not recommend renewal of Hett's contract for the 1959-1960 school year.
While the principals did not recommend Hett's retention for that year, Ploetz decided that because he had been the superintendent for only six months it would be unfair to Hett to recommend his dismissal.
Ploetz informed Hett that his contract was not going to be renewed and told him that it would be in his best interest to resign so that a dismissal would not appear on his record. Hett resigned. On June 3, 1959, Ploetz wrote to H. E. Peterson, supervisor of the department of public instruction, and stated that he had asked Hett to resign because he thought Hett deserved another chance and would be more useful at some other school.
On November 9, 1959, Hett applied for a position as a speech therapist at the Southern Wisconsin Colony and Training School, Union Grove, Wisconsin. In his application he stated that the reason he left the Cudahy school system was that there was a lack of advancement opportunities. He listed Ploetz as a reference and gave permission to the Southern Colony officials to communicate with Ploetz. The personnel officer of Southern Colony wrote the following letter to Ploetz:
"Re: Douglas Hett
"Dear Mr. Ploetz:
"The above named has applied for a speech-correctionist position on the staff of the Southern Wisconsin Colony and Training School. He lists your name as a personal reference.
"We would appreciate having your comments on Mr. Hett's qualities for a position involving individual corrective-speech work with mentally retarded boys and girls. Any viewpoints concerning the applicant's competence, ability to work with others, and capacity for growth and development will be most helpful in determining his suitability for the position indicated.
"Any information provided will of course be retained in strictest confidence, and will be most gratefully received."Very truly yours, "John M. Garstecki "Superintendent "By ____________________ "James K. McKinnon "Personnel Officer." In reply to this letter, Ploetz wrote the following letter: "November 13, 1959 "Superintendent John M. Garstecki, "Southern Wisconsin Colony and Training School, "Union Grove, Wisconsin "Dear Mr. Garstecki:
"This is in reply to your letter relative to Mr. Douglas Hett, who has applied for a speech-correctionist position in your school.
"I am sorry that I cannot give Mr. Hett an unqualified recommendation, but I cannot.
"Last year, our six principals and elementary coordinator unanimously recommended that he be no longer retained in our system as a speech correctionist. He, therefore, was not offered a contract to return this year.
"We feel that Mr. Hett was not getting the results that we expected in this very important field. I, personally, feel that Mr. Hett does not belong in the teaching field. He has a rather odd personality, and it is rather difficult for him to gain the confidence of his fellow workers and the boys and girls with whom he works.
"I am sorry to have to give Mr. Hett this kind of recommendation, but I feel that I must be honest in my comments to you."Yours very sincerely, "Superintendent." In his complaint, Hett contended that Ploetz acted maliciously and that the letter contained false and defamatory statements which injured his professional reputation. He also claimed punitive damages.
Ploetz's answer denied all of the material allegations and, by way of affirmative defenses, alleged that the statements were true or that they were conditionally privileged because they were made in discharge of a public duty.
The plaintiff contends that he was libeled by the defendant's response to an inquiry from a prospective employer of the plaintiff. Hett had not only given Ploetz's name as a reference but had also given express permission to the prospective employer to communicate with Ploetz.
We must resolve two questions. The first is whether any privilege insulates the defendant's letter; the second is whether an issue of malice exists for trial.
It is clear that Ploetz's allegedly defamatory letter was entitled to a conditional privilege. Ploetz was privileged to give a critical appraisal concerning his former employee so long as such appraisal was made for the valid purpose of enabling a prospective employer to evaluate the employee's qualifications. The privilege is said to be "conditional" because of the requirements that the declaration be reasonably calculated to accomplish the privileged purpose and that it be made without malice. Hoan v. Journal Co. (1941), 238 Wis. 311, 328, 298 N.W. 228; Rude v. Nass (1891), 79 Wis. 321, 329, 48 N.W. 555. Restatement, 3 Torts, p. 252, sec. 595.
In Rude v. Nass, supra, at page 328, the following statement of Massachusetts' Mr. Chief Justice SHAW is quoted approvingly:
"`Where words imputing misconduct to another are spoken by one having a duty to perform, and the words are spoken in good faith, and in the belief that it comes within the discharge of that duty, or where they are spoken in good faith to those who have an interest in the communication, and a right to know and act upon the facts stated, no presumption of malice arises from the speaking of the words, and therefore no action can be maintained in such cases without proof of express malice.'"
Lord BLACKBURN has said:
"`Where a person is so situated that it becomes right in the interests of society that he should tell to a third person facts, then, if he bona fide and without malice does tell them, it is a privileged communication.'" See Rude v. Nass, supra, page 329.
The public-school official who expresses an opinion as to the qualifications of a person who has submitted an application for employment as a schoolteacher should enjoy the benefits of a conditional privilege. See Anno. 136 A.L.R. 543, 549.
The Absence of Malice.
As previously noted, the employee had given Ploetz's name as a reference and had authorized that an inquiry be made of him. The letter contains certain factual matters as well as expressions of opinion. The factual portions are not contradicted by any pleading before this court. Thus, the following statement contained in the letter written by Ploetz stands unchallenged:
"Last year, our six principals and elementary co-ordinator unanimously recommended that he be no longer retained in our system as a speech correctionist. He, therefore, was not offered a contract to return this year."
The expression of opinion of which Hett complains is contained in the following portion of the defendant's letter:
"We feel that Mr. Hett was not getting the results that we expected in this very important field. I, personally, feel that Mr. Hett does not belong in the teaching field. He has a rather odd personality, and it is rather difficult for him to gain the confidence of his fellow workers and the boys and girls with whom he works."
In our opinion, the record before us establishes that this expression of opinion is not founded in malice. The background of the relationship of Hett and Ploetz satisfactorily demonstrates that the latter's negative recommendation was grounded on the record and not upon malice. Ploetz was not an intermeddler; he had a proper interest in connection with the letter he wrote.
The letter in question did not exceed the scope of the inquiry put to Ploetz by the prospective employer. The evidentiary facts which have been included in this record tend to show that the statements in Ploetz's letter were based upon matters within the latter's knowledge. The record discloses that six school principals had in fact submitted the report to which Ploetz's letter referred; their report was critical of Hett's professional and personal qualifications. The report was submitted to Ploetz approximately nine months before the letter in question, and it recommended that Hett not be retained as speech therapist in the Cudahy school system for the following stated reasons:"1. He lacks professional competence. "2. His teaching is ineffective. "3. He shows immaturity for the work. "4. His unprofessional relationships with the students. "5. He has not arranged for parent conferences." Although Ploetz had previously favored Hett's retention, it does not follow that the subsequent letter to Southern Colony was based upon malice. The same would apply to Ploetz's recommendation of Hett for a permanent teacher's certificate. Earlier acts of kindness toward Hett do not warrant an inference of bad faith upon the occasion of a later, unfavorable comment.
We are persuaded that Ploetz's motion for summary judgment was properly granted. Ploetz's affidavits and accompanying documents demonstrate that there is a complete defense to the plaintiff's claim of libel. The plaintiff has not evidenced the presence of malice in connection with the challenged writing.
The plaintiff has failed to recite any evidentiary facts which are sufficient to raise questions for trial. His allegations that the letter contains defamatory material are mere conclusions. No presumption of malice has arisen; no showing of express malice has been presented.
"The law relating to defamatory communications is based on public policy. The law will impute malice where a defamatory publication is made without sufficient cause or excuse, or where necessary to protect the interests of society and the security of character and reputation; but where the welfare of society is better promoted by a freedom of expression, malice will not be imputed. Anno. 63 A.L.R. 1113. See also Flynn v. Western Union Telegraph Co. (1929), 199 Wis. 124, 225 N.W. 742."
Public policy requires that malice not be imputed in cases such as this, for otherwise one who enjoys a conditional privilege might be reluctant to give a sincere, yet critical, response to a request for an appraisal of a prospective employee's qualifications.
A summary judgment should be granted when it is clear that there is no substantial issue for trial. Maroney v. Allstate Ins. Co. (1961), 12 Wis.2d 197, 201, 202, 107 N.W.2d 261; Phillips Petroleum Co. v. Taggart (1955), 271 Wis. 261, 270, 73 N.W.2d 482. A thorough examination of the entire record compels our conclusion that the respondent is entitled to the benefit of a conditional privilege.
By the Court. — Judgment affirmed.