Early in the year 1972, appellant, Judy Grzelak, became an employee in the Public Works Department of the Town of Highland, Indiana. She was hired at that time by Mr. Chester Napiwocki, the newly elected Democratic President of the Highland Town Board, to be the secretary to Mr. Royce Coulson, the Public Works Director of Highland. Her appointment purportedly resulted from the fact that Walter Grzelak, appellant’s husband, had been very instrumental in Napiwocki’s election to the Town Board. Further, it was Napiwocki’s stated intent, once elected, to fill appellant’s job with “his own people.”
Shortly after appellant began her job, however, Mr. Coulson became concerned over her work performance as a secretary as well as her attendance record. He thereupon brought these matters to the attention of the Town Board. The Board, nevertheless, informed him that Mrs. Grzelak would remain on the job. Subsequently, Coulson telephoned Mr. James Alvord, Managing Editor of the Highland Sun-Journal, on two occasions telling Alvord (1) that Chester Napiwocki had ordered that Coulson’s former secretary be replaced by Mrs. Grzelak when Napiwocki became President of the Highland Town Board, (2) that Mrs. Grzelak had been absent from work eight days between 1 January 1972, when she began work, and the month of April, 1972, (3) that Mrs. Grzelak was doing virtually no work for Coulson, (4) that Mrs. Grzelak was incompetent, unskilled, without secretarial skills, and of little value to him, and (5) that Mrs. Grzelak had been observed doing an impromptu “go-go dance” on a pool table at a local tavern called the Highland Tap. Following these telephone conversations, Alvord wrote three articles in the Highland Sun-Journal, the local newspaper, in which the information communicated to him by Coulson was discussed. These articles, particularly the publication of 20 April 1972, entitled “A $122 a Week Hoofer,” constituted the basis of appellant’s suit for libel in the district court.
After appellant instituted suit for the recovery of damages, appellee moved for summary judgment alleging that the defamatory articles were not published with actual malice within the doctrine of
New York Times Co. v. Sullivan,
Appellant contends, first of all, that the district court erred in granting summary judgment in favor of appellee because she asserts that on the facts of the case there exists a substantial and triable issue of fact as to whether the publications in question were made with reckless disregard. Further, she alleges that the trial court was in error in treating appellee’s second motion for summary judgment as a motion to dismiss in that there exists an issue of fact on the question of special damages. Accord *582 ingly, appellant maintains that the district court’s rulings should be reversed and the case remanded for trial. ■
In response, appellee argues that summary judgment was properly granted in the court beíow since appellant failed to demonstrate the existence of a genuine issue of fact as to whether the allegedly defamatory statements were published with knowledge that they were false or with reckless disregard of truth or falsity. Appellee maintains that since appellant was a public employee and since the language in its articles regarding appellant’s patronage employment related to matters of public interest and concern, its publications were protected by the First Amendment privilege of New York Times v. Sullivan. In this regard, appellee emphasizes that appellant has failed to meet her burden of proving the required actual malice.
Additionally, appellee asserts that the court below was correct in treating its sqcond motion for summary judgment as a motion to dismiss since that motion concerned only the sufficiency of the allegations in Count I and not factual material. In any event, it is appellee’s position that appellant’s failure to allege special damages in her complaint was fatally deficient as a matter of law. Appellee, therefore, urges this Court to affirm the judgment of the district court.
The principle espoused in the landmark case of
New York Times Co. v. Sullivan, supra,
simply stated, is that a public official is prohibited from recovering damages for a defamatory falsehood relating to his official conduct unless he proves “actual malice” — that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. The concept of recklessness, as it is used to define
New York Times
malice, requires that the publisher act with a “high degree of awareness of . probable falsity” in printing the subject matter in question,
Gertz v. Robert Welch, Inc.,
The burden of proving actual malice on the part of the defendant, which is undoubtedly a very difficult and demanding burden, must be shouldered entirely by the plaintiff. Such a stringent burden results from the deep-rooted belief that “speech concerning public affairs is more than self-expression; it is the essence of self-government.”
Garrison, supra,
First of all, we find merit in, and are persuaded by appellee’s contention that appellant in this case occupied a public position and that- the matter of her political appointment was a subject of public or general interest. Even if it could be argued, however, that in the present circumstances appellant was not a public figure about whom considerable editorial comment would be allowed, we are not in doubt that the fact that she was a political patronage
*583
employee presents an issue about which the public at large undoubtedly has a genuine interest and concern.
Rosenbloom v. Metromedia,
We are convinced that the facts cannot support a finding of the required recklessness in the publications which referred' to her and her official duties as secretary to Royce Coulson. James Alvord, the Managing Editor of the Sun-Journal, had known Coulson, the source of the information concerning appellant, for a considerable length of time prior to receiving the information. Furthermore, there is no evidence from which it could be determined that Alvord did not prepare the articles in question with the belief that the information as reported therein was true and accurate in all respects or that he doubted the integrity of either the source from which he received the information about appellant or the facts themselves as reported to him. Therefore, although we now decline to encourage or place our stamp of approval upon the care or lack thereof with which appellee went about obtaining and printing reportable material, nevertheless, we do hold, without reservation, that the facts would not support a finding of a level of reckless disregard for the truth that would amount to actual malice. Nowhere in the record do we find the slightest indication that appellee published the subject matter in question with a “high degree of awareness of . probable falsity.” Gertz, supra. Accordingly, the articles which discussed the subject of appellant’s office practices and job performance do, in our opinion, fall within the limits of First Amendment protection under the test enunciated in New York Times Co. v. Sullivan.
The specific language in the April 20th publication involving the go-go incident, however, presents yet another issue in the present appeal. Accordingly, we now choose to treat it separately. As noted earlier, the district court declined to grant appellee’s first motion for summary judgment as to the language pertaining to the go-go incident on the grounds that the episode presented genuine issues of fact with reference to accuracy, negligence, and privilege. It was only when appellee filed a second motion for summary judgment and after the court below treated that motion as a motion to dismiss that the question of the go-go dance episode was resolved. The district court held that since such language was not libelous per se, appellant’s failure to allege special damages resulting from the defamatory publications rendered her complaint fatally defective for failure to state a claim. We must now determine the validity of that determination in the court below.
Under Indiana law, when allegedly defamatory language is not libelous
per se,
plaintiff must plead special damages in order to state a cause of action.
Gibson v. Kincaid,
In addition, we note that the record is amply clear that appellant has never, in reality, sustained any special damages. Although she claimed to have developed a skin condition as a result of nervousness caused by the publications in question, she also testified that she had neither lost her job nor incurred a decrease in salary nor lost any time from work, as a direct and proximate result of the articles. In this regard, it is well established that mental or emotional distress, even if accompanied by or the cause of a physical illness, is not a legally sufficient claim of special damage.
Hambric v. Field Enterprises, Inc.,
For the reasons discussed above, therefore, the judgment of the district court in favor of appellee, Calumet Publishing Company, Inc., is hereby AFFIRMED.