Moritz v. Medical Arts Clinic, P. C.

(Judy), Mrs. David Plaintiff MORITZ Appellant,

and CLINIC, C., ARTS P. MEDICAL Lynn Aas,W. Defendants Appellees.

Civ. No. 10036. Supreme of North Dakota.

Jan. Jr., Saefke, Bismarck,

Frederick E. appellant. Bucklin, Bismarck, Zuger & for defend- appellees; argued by Murray ants G. Sagsveen, Bismarck. HODNY, Judge.

WILLIAM F. District appeals summary judg- Plaintiff from a dismissing ment and from an allowing attorney’s order fees. August plaintiff compromised brought

and settled a suit she had for com- pensatory punitive damage against hospital a doctor who was a 459 employee and of defendant The brought stockholder Clinic and the doctors a mo- Judge Berning tion before to dismiss Clinic. action. court treated it as a motion for later, plaintiff received the fol- Sometime summary judgment 12(b)(5) under Rule lowing 6, 1979, letter dated December writ- Procedure, North Dakota Rules Civil of and manager ten of the defendant Clinic. pursuant to Rule 21 and 56 thereof dis- “This letter is written to inform you missed the action against all 23 of the doc- Clinic, the Medical Arts P.C. and all tors named in the but otherwise the physicians of associated the clin- denied the allowing motion to dismiss wish to ic withdraw from further treat- action and its manager Clinic ment and your prob- attention of medical continue. appeal No has been taken from lems and also those of member of this dismissal. Subsequently Judge Bern- ing himself, your family. immediate found cause to recuse and as a Judge result assigned Beede was “The reason for this withdrawal should case. you. physicians be obvious to are After discovery proceedings, extremely Clinic treating you uncomfortable made a motion Judge before Beede for they and do not find that do so in the dismissal, judgment of which was physician-patient relationship that they granted.1 The Court also found Plaintiff’s would want to Your past offer. actions claim for relief to granted be frivolous and made it have difficult for them to accept allowing attorney’s a motion fees to the you patient. as a $7,611.00. of Judg- Clinic amount Clinic, “The Medical Arts P.C. and the was appeal- ment entered and has physicians group associated with the re- This required ed. Court is to determine if spectfully you place yourself ask and granting the motion for family members your other of in the care appropriate was whether the granting physician some other in this of communi- attorney fees under Section 28-26-01 ty. The physicians Medical Arts Clinic proper. you continue you will to care for until We shall first deal with the motion and placed yourself have care of the matter alleged of the defamation. doctor, other not exceeding ten 4 Section of Article I the North Dako- days from the date of this letter. This provides ta Constitution as follows: give you ample time to select a write, “Every may freely speak man physician your from the many choice publish subjects, on all competent practitioners in the city. With being responsible for the abuse of that ápproval, your the Medical Arts Clinic privilege. all civil criminal trials your make physician will available to for libel the truth in evi- your histories and information re- dence, and shall be a sufficient defense garding diagnosis and treatment when published good the matter which have been at the received Medical ends; justifiable motives and for and the Arts Clinic.” jury power giving shall have the same brought Plaintiff then an action cases; general verdict as in and in Clinic, manager, Medical Arts the Clinic all indictments or informations for libels physicians with the associated right shall have the to determine alleging is defamatory Clinic that the letter the law and the under the facts direction published. the court as in other cases.” though provision pro- Beede did not issue memorandum 2. Even this constitutional opinion, right but his order contained a statement vides that the mine have the to deter- shall law, .. that “. there is no issue of material the court still retains its function judg- fact that defendants entitled to to determine whether the element can be de- famatory. are Second, Torts, ment a matter of law.” Restatement Comment C. whether the were used in an inno- Century Dakota Code 14- words

North Section has the provides every person 02-01 cent or sense.” right defamation. This protection principle This of law was affirmed in Equity Cooperative court in McCue v. Pub- ¶ Syllabus 2 in Rickbeil v. Grafton Deacon lishing Fargo, 39 N.D. 167 N.W. Co. of Hospital, ess (1918), every freely said that man There is no write, on all speak publish opinions is is not warranted if the letter subjects responsible for an abuse of but is meanings defamatory capable of two —one injured privilege any person by to such Equity innocent. McCue v. and the other abuse. Fargo, supra. Coop Pub. Co. of 14-02, Century North Dakota Code Ch. involved, ques the If an innuendo is as Rights, Personal classifies defamation alleged of whether the defamation is tion being either libel or slander. writing is of fairly by warranted the one is in 14-02- Civil libel defined NDCC § Upon finding to a law court decide. 03, follows: as possibility that the ascribed libe reasonable unprivileged publi- “Libel is a false the material meaning lous can be by writing, printing, picture, cation effi- alleged defamatory, jury to be it is for the gy, representation to the or other fixed meaning was to determine if the libelous hatred, eye, exposes any person v. Martin conveyed. intended or Ellsworth ridicule, obloquy, or which contempt, or 610, Dictionary, dale-Hubbell Law 69 N.D. avoided, causes him to be shunned or (1940). 289 N.W. 101 tendency injure in his which has a him occupation.” Second, ¶ Torts the In Restatement jury function of the court and is discussed. Jones, N.W. Lauder v. quote: We (1904) rules that in order to render “(1) The defamatory words the defamation need not court determines in direct terms. Defamation be “(a) capa- whether a communication is insinuation, sarcasm, indirectly by by made bearing particular meaning, ble of by questions mere as well as direct positive in terms and it is not less assertion “(b) meaning whether that is defama- indirectly; and it actionable because made tory. disguised artful the matters not how “(2) The determines whether a com- meaning concealed if modes in which the is munication, capable defamatory of a defamatory. it is in fact meaning, was so understood its re- The court observed: cipient.” objec- “The decisive (b) it is said: In comment to this section complaint not state a tion does Section, in “Under the rule stated language cause of action is this: Is two of the determination of the first alone, affidavit, sus- standing fairly questions is for court and that these ceptible defamatory meaning? If it The court jury. of the third for the is, complaint states a cause of then whether the communication is determines properly case was sub- action and the bearing meaning capable of ascribed jury, for it is well settled mitted to the to it whether alleged of an that where meaning in so ascribed fairly susceptible of a construction libel is character. If the court decides it and there- which renders plaintiff upon ques- either of these actionable, though even is also fore tions, question for the there is no further susceptible of a which would construction is ended.” jury to determine and the case states a render it action, holding Luthey This is also the against demur- good cause of as Kronschnabl, rer, 239 Wis. and it is for the to determine AmJur2d, (1942) Accord Libel and Slan- sonable men of ordinary intelligence der, Normally them, these authorities con- give they would must be construed template making determina- the court its persons generally understand them hearing after evidence such as a mo- tion ordinary to their according mean- for directed verdict. Likewise on a ing.” Eldredge, L. H. Law Defa- there if is no motion mation, 9§ fact, issue material the court Applying principles letter, these must determine whether the statement it be fairly capa- said that the meaning. capable bearing ble ascribed meaning plaintiff has ascribed Plaintiff? the letter Does accuse Plain- this ease is stated Para behavior, “of wrongful tiff acts whether graphs Complaint V and XII of the as fol socially direct criminal nature or aof lows: immoral or distasteful conduct” as is al- leged in Paragraph complaint? V of the openly

“V That said letter and fla- convey Does the impression “the accuses the grantly plaintiff of crime, behavior, the Plaintiff had committed a or wrongful acts or wheth- respect some social or activity immoral er of a direct nature or criminal of as alleged Paragraph to Defendants” socially a immoral or distasteful of complaint? certainly XII It is sus- conduct.” ceptible of meaning, an innocent is it “XII That said was intended a defamatory meaning also of so convey convey, to and did expose plaintiff hatred, contempt, as to to community large, impression at obloquy ridicule or her to be cause had committed a avoided, shunned or or which has a tenden- crime, or some social or immoral injure to cy occupation? her in Section respect activity defend- 14-02-03. ants, profession, and their and it to, did, was calculated and hold the It is opinion our a tortured scorn, plaintiff up hatred, public construction of the words of the letter could contempt, obloquy, ridicule and support meaning such a then the and even publication, by such defendants predisposed reader would have be meant, and mean intended to said imagine beyond ordinary activities far wrongdoings and was so understood import of the v. words used. In Haid- State publication.” the readers said er, supra, this court mentioned a classifica- determining tion of words in defamation. determining whether words are libe quote actionable, We from that case and conclude lous and the entire letter should words this “obviously used in case were purpose determining construed be properly innocent: words which cannot be meaning portion complained of that of. Kuhn, (N.D. convey any imputation construed so as to on Dvorak v. 175 N.W.2d 697 1970). plaintiff.” imagined meaning The sense or of the docu No innuendo can according supply meaning ment is determined to its alter the sense to a natural Haider, popular v. Luthey construction. State document which not there. v. (N.D.1967); Kronschnabl, 150 N.W.2d 71 Waldo v. Jour supra. put A court will not Co., nal 45 Wis.2d forced construction on which words (1969); Co., Printing Silence v. Journal fairly Star be v. Jour- deemed harmless. Silence (1978). Co., 201 Neb. N.W.2d Printing supra. nal Star The fact that plaintiff places defamatory connotation general concerning “The rule the con- does not it actiona- (in on statement make struction of words is that the absence Eberle, Bistline ble. 88 Idaho extrinsic circumstances which convert words) P.2d 555 The facts of case raise defamatory innocent words into issue fact determina- the words must be in their no of material and the construed ordinary innocent meaning defamatory natural and rea- is one for the court since the letter is not in of material fact as to whether the state- ambiguous. Giving manner the entire defamatory ment is or innocent should sum- reading letter a in accordance with all of mary judgment precluded. There is no the above authorities leaves us convinced genuine such issue of material fact in this that it cannot support meaning ascribed case. Nor agree can we with him that by plaintiff nor is it libel as defined in ruling on a summary judgment motion the Section 14-02-03. court should consider that “. paragraph .. two of the letter easily agree We with Chief Justice Erickstad’s trigger the imagination of the reader with only recipient letter, that the uncomplimentary thoughts of the addressee Creighton, Linda did not understand it in a impressions create various sense, defamatory and thus there is no issue suspicions why the termination notice was issue of material fact. How- given.” Rather the court must determine ever, since we have determined the letter words used according to was not necessary was not natural popular giving construction go step one further as he has done. words their ordinary natural and meaning. agree We cannot with Justice Sand in his Imagination suspicion are not determi- conclusion that whenever extrinsic evidence native —the meaning of the words is what is needed to determine whether a statement counts. the statement ambiguous and should be submitted to a Plaintiff has appealed also from an jury. Extrinsic normally evidence is sub- attorney award of fees to defendant made along mitted with a 28-26-01(2) Section finding a motion and if it genuine raises no issue of plaintiff’s that claim for relief was frivo fact, material summary judgment appro- is lous. priate. Nor can the submission and consid- pertinent part The of that pro- statute eration of matters submitted on a summary vides: judgment motion absolve a court of duty its to determine whether the “In civil may, statement can be actions the court in its fact, discretion, upon as we have finding done. com- a that a claim for (d) Second, ment frivolous, Restatement Torts relief was award reasonable ac- ¶ 614 states that both the judge costs, tual or statutory both, including performing functions, their respective take attorney’s reasonable prevail- fees to the into account all the circumstances surround- ing party. Such costs be awarded ing the communication of the matter com- regardless of good faith of the attor- plained of as defamatory. Rule 56 of the ney making or client the claim for relief North Dakota Rules of Civil Procedure al- if there is such a complete absence of lows the submission of all sorts of docu- actual facts or law that a per- reasonable ments on a motion summary judgment son could not have thought a court would all of which the obligated court is to con- judgment favor, render in their providing documents, sider. Evidence in these along the prevailing party responsive has in drawn, with inferences must be considered pleadings alleged the frivolous nature of light plaintiff. most favorable to Pi- the claim.” Johnsrud, oneer Bank State 284 N.W.2d agree We cannot plaintiff’s claim for (N.D.1979). subject relief is to a finding that there is However, mandatory complete considera such a absence of actual fact or tion of such materials should not be deter law person that a reasonable could not have minative of whether the statement thought am judgment court would render biguous possibly defamatory. This rea their favor. In the analysis last a case of soning would make summary judgment type un question judgment becomes a available in Only defamation cases. frequently when by determined a court. Restate- the extrinsic Second, evidence raises a issue ment Torts Comment d. “The judgment has divided this That communication is that recipient correctly, Under the facts of this case an mistak- court. enly but reasonably, understands that it of fees is an abuse of discretion and award express.” intended appeal Plaintiff did not reversed.3 statutory award of costs. foregoing official comment to the sec- its highlights importance to this case: granting We affirm the “. . . although person making the allowing judgment, but reverse the order convey communication intends it to a de- attorney’s party Neither shall be fees. famatory meaning, there no defama- appeal. awarded costs on this recipient tion if the not so does under- stand it. This is although true the de- LARRY M. HATCH JOHN 0. GA- famatory meaning is so clear an RAAS, Judges, District concur. ordinary person immediately would rec- ognize it. HODNY, HATCH, GARASS, District “. . . to be determined is PAULSON, Judges, sitting place whether the is reasonably communication PEDERSON, WALLE, JJ., VANDE dis- a defamatory understood in sense qualified. recipient. ERICKSTAD, Chief Justice, concurring ^{[*] [*] [*] [*] [*] [*]} specially. enough “It is not that the used is reasonably capable defamatory I concur in the result of majority interpretation if recipient did not in however, Hodny; written fact so understand it.” I believe dismissal In support of its motion for ground on the affirmed the Clinic submitted affidavit party third whom Aas’ letter was Linda Creighton indicating that she did communicated the Clinic did not under- not construe the letter in stand it in a With sense. sense:

fact, Creighton’s established Linda affi- “During I by Judy, davit and unrefuted it is late handled one or unneces- legal concerning more sary for this to documents a law- decide the issue of Giltner, by Judy against suit Moritz Dr. a whether or not the letter is of a doctor at Medical the Arts Clinic. defamatory meaning. order In for a libel to be there actionable “When I the typed (listening letter

must be a of it to a party. third tape machine) the on the transcribing Kuhn, (N.D. Dvorak v. 175 697 N.W.2d letter, proof-read when I I remem- 1970). The Clinic concedes that the letter legal bered the that I documents had published party was a third —Linda previously my opinion handled. It was Creighton, secretary to administrative Mr. that sent Mr. Aas the letter because of typed Aas—who mailed letter against the lawsuit Dr. I Giltner. did undisputed Judy, it that Linda not, now, and cannot think of Creighton was party third whom reason why the letter was sent.” the letter was communicated the Clinic. regard With to the of an communication According to Linda’s she affidavit Restatement, item allegedly libelous Judy’s against aware of lawsuit Dr. Giltner Second, (1977) and, provides Torts knowledge, 563 fol that she understood lowing: that to mean because law- Perhaps plaintiffs party action the 23 no costs de- are awarded to either and thus by Judge Berning Judge allowing attorney fendants as we view dismissed earlier Beede’s order support finding part remaining in the case could under 28- fees as that based on However, 26-01(2) Berning’s justifying attorney Judge fees. after order. There has been no appeal opinion specifically Berning’s memorandum stated that order. physicians principles desired to with- tion to the firm

suit the Clinic’s law estab- Judy and draw from further treatment of lished that the evidence must be considered family. light party her in the most favorable judgment whom is demanded. involving Actions state of mind are not respect, majority opinion particu- usually disposition by summary suited for larly disregards the case law established in judgment. Empire Fire & Marine Zuraff v. McCue, infra, if extrinsic evidence is Co., (N.D.1977). Insurance N.W.2d needed to determine the statement’s true Nevertheless, when a motion for character, than is a provid supported is made and to decide with the proper aid of instruc- by Rule 56 of the North Dakota Rules of ed tions. Procedure, party Civil an adverse cannot upon allegations

rest the mere or denials of purpose The very using relying pleadings; response, by her affida upon extrinsic evidence as an aid in deter- rule, provided vit or as otherwise mining the true is an admission specific showing must set forth facts ambiguous. the statement Pure le- a genuine there is issue for trial. Rule gal logic dictates this result. N.D.R.Civ.P.; 56(e), Nel Boone Estate of deposition Linda’s affidavit and were son, (N.D.1978). Through 264 N.W.2d 881 used the court. She did not know who Creighton’s Linda affidavit the Clinic dem letter, else saw the and did not know the onstrated that under nature of the lawsuit. Judy stood in a did not sense. plaintiff’s proof support Whenever of a respond by affidavit or otherwise to refute necessarily primarily rely claim must and, accordingly, Linda’s has affidavit witness, cross-examination of hostile failed to raise a issue of material secretary (Linda) as in this case the to the fact. For that reason I concur with the manager, Clinic the affidavit should not be majority opinion affirming result of the treated as conclusive is not matter summary judgment dismissal. appropriate summary judgment. Sag I majority opinion also concur with the Carlson, (N.D. miller v. its reversal of the district court’s award of 1974). also, Engelhart, Weidner v. See attorney’s fees to the Clinic. (N.D.1970). matter, N.W.2d 509 For that deposition give or affidavit does not SAND, Justice, dissenting. trier opportunity of facts the to observe the respectfully I dissent for reasons that demeanor of the consequently witness and my opinion majority assumed the role if testimony such live is crucial but is de jury, appel- function instead of nied, concept the fair trial becomes distort majority ignored late court. The also ed, lacking. if not There can be no serious provision, North Dakota constitutional Sec- Linda, secretary as the I, tion Article the case law that has manager, Clinic is a hostile witness. developed many been thereunder over summary judgment proceeding A is not years, briefly all of which are discussed just trying another method of the facts. later herein. The real issue before the trial summary judgment The evidence in a is not was, is, appeal: court Is the and still on court, weighed by except in favor of the letter, alone, standing fairly susceptible of party against summary judgment whom two meanings the other —one sought. susceptible or is it meaning? susceptible proceedings innocent If it is A brief of the will helpful either one it is a matter to understand the situation. changed decide. The issue has not re-—it brought Mrs. David Moritz an action appeal.. mains the same on [Clinic], the Medical Arts Clinic manager, majority, topic physicians The Clinic and all of the on judgment, complaint associated with the Her give adequate did not considera- Clinic. alleges following Thereafter, parties written to “all conducted dis- covery” proceedings. Later, manager, Judge the Clinic dated 6 Dec Berning personal had occasion to receive health serv- published: and was ices from the Clinic and some of its doctors you “This letter is written to inform requested and as a result counsel to indicate Clinic,

that the Medical Arts P.C. and all if this question, affect the lawsuit in physicians of the associated with clin- whereupon suggested Moritz impro- some ic wish to withdraw from further treat- priety may appear Judge if the remained on your ment and attention prob- medical Judge Berning agreed case. and re- lems and also those member of himself, Judge cused and as a result Beede your family. immediate assigned to the case. “The reason °for this withdrawal should The Clinic made a motion before you. be obvious physicians The are dismissal, Beede for summary judgment of extremely treating you uncomfortable granted. which was The Clinic then moved they and do not find that do so the court to (complaint) declare the action physician-patient relationship they frivolous and to allow the Clinic reasonable would want to offer. past Your actions attorney’s granted fees. court the mo- n have made it accept difficult for them to tion and attorney’s allowed fees to the Clin- you patient. aas $7,611.00. ic in the amount of ap- Moritz Clinic, “The Medical Arts P.C. and the pealed. firmly It established that physicians group associated re- appeals Court does not hear on a de novo spectfully you place yourself ask basis, but reviews the action taken your family members of in the care trial court.1 physician of some other in this communi- appeal' following raised issues: ty. The Medical physicians Arts Clinic summary judgment appropriate? 1. Was you you will continue to care for until apply appropri- a. Did the trial court placed yourself have under the care of legal principles ate law deter- that other doctor but exceeding ten mining reasonably if the letter was days from the date of this letter. This meanings, of two one in- give you ample time to select a nocent and the other libelous? physician your many choice from the ambiguous, b. If the letter is was the competent practitioners city. With proper procedure followed? your approval, the Medical Arts Clinic published? c. Was the letter will your physician make available to your allowing d. attorney’s histories and information re- Was the order fees garding diagnosis proper? and treatment which have been received at the Medical resolving these issues Article I 4 of Arts Clinic.” Constitution, the North Dakota the case law developed pertinent thereunder and state brought The Clinic and the doctors a mo- statutes, pertinent and other authorities Judge Berning tion before to dismiss the must be taken into consideration. (complaint). action The court treated it as motion for provides Section 4 of Article I as follows: 12(b)(5), Rule North Dakota rules of Civil write, “Every may freely speak man Procedure, pursuant to Rule 21 thereof publish subjects, on all dismissed the action all doc- being responsible for the abuse of that tors named in the but otherwise privilege. In all civil and criminal trials denied the motion to dismiss and allowed for may libel the truth in evi- dence, the action the Clinic and its mana- and shall be a sufficient defense ger published good to continue. when the matter is repealed by Supreme 1. NDCC 28-27-32 was § Ch. 311 in cases tried to the court 2, 1971, eliminating jury. appeals § S.L. de novo without a 466 ends; justifiable

motives and for language alleged where the of an libel is jury shall have the same power giving fairly susceptible of a construction which cases; general as in verdict and in renders it and therefore ac- tionable, all though indictments or informations for libels even it is also jury right shall have the to determine of a construction which would render it the law and the facts under the direction complaint states a cause of action, demurrer, of the court as in other good cases.” and it is to determine whether the Court, Equity Coopera Our in McCue v. words were used in an innocent or defam- Publishing Fargo, 190, tive ofCo. 39 N.D. atory sense. [Citations omitted.] (1918), 167 N.W. 225 every said that man principle This of law Sylla- was affirmed in write, may freely speak publish ¶ 2 bus in Rickbeil v. Grafton Deaconess opinions subjects on all but is responsible 525, Hospital, (1946). 74 N.D. N.W.2d privilege any person for abuse of that question complaint There is no stated injured by such abuse. though cause of action even the letter itself Century 14-02, North Dakota Code Ch. capable meanings of two defamato- —one Rights, Personal classifies defamation as ry and the other Equi- innocent. McCue v. being either libel or slander. ty Coop Fargo, Pub. supra. Co. If innu- Civil libel is defined in NDCC 14-02- endo involved it is also 03, as follows: decide. Ellsworth v. Martindale-Hubbell unprivileged publi- “Libel is a false and Dictionary, Law 69 N.D. 289 N.W. 101 by writing, printing, picture, cation effi- gy, or other representation fixed to the knowledge It is common that clinics and eye, hatred, exposes any person similar generally establishments make ef- ridicule, contempt, obloquy, or which professional forts to attract clientele within avoided, causes him to be shunned or Consequently, bounds. a notice of termina- tendency injure which has a him in his containing tion statements such as those in occupation.” [Emphasis added.] paragraph two of the letter in The majority disregarded has the under- easily trigger imagination of the reader language. scored uncomplimentary thoughts of the ad- Court, Supreme North Dakota dressee and create impressions various Jones, Lauder v. suspicions why N.W. 907 or the termination notice (1904), held given. order to render words permits Such statement also defamatory the defamation by through need not be in the reader innuendo to con- clude, direct terms. suspect, Defamation be made or at least that the individu- insinuation, indirectly by sarcasm, toal whom the letter is addressed is a questions mere as well as persona grata. direct asser- non positive tion in terms and it is not less The instant case is similar to the case of actionable because indirectly; made and it Mertz, Denny 84 Wis.2d 267 N.W.2d matters not disguised how artful or (1978), the Supreme wherein Court of modes in which the is concealed if Wisconsin held that a statement that an it is in defamatory. fact attornéy was capable being “fired” was In Lauder the court observed: understood in a sense rea- people sonable community and that: “The decisive objection complaint does not people state a cause “Reasonable could conclude that a of action person’s is this: Is the being injure fired would tend to affidavit, alone, standing fairly suscepti- reputation popular their sense or to is, defamatory meaning? ble of a respect If it' diminish the peo- or esteem that cause, then the ple states a of ac- had for him. Whether the article properly and the case was actually ques- submitted would have that effect jury, for it is well settled that jury.” tion for the In the instant case Moritz was “fired” as a In Equity McCue v. Cooperative Publish patient. Denny The Court in observed that ing Fargo, 190, 167 Co. of 39 N.D. N.W. 225 “Initially, obligation the court has the (1918), quoted this Court approval deciding capa- whether communication is following: defamatory meaning.” ble of a It then “If there is any doubt as the meaning referred to Lathan Company, v. Journal libelous, claimed to be so 146, (1966), Wis.2d wherein that extrinsic evidence is needed to deter- it defined “defamation” as follows: mine its character as being to its actiona- injure “That which ‘reputation’ tends to ble, it is jury under sense; in popular to diminish the proper instructions from the court to find esteem, respect, goodwill or confidence in its true significance.” character and Ne- held, plaintiff which the is or to excite well, (2d ed.) page Slander and Libel 290. adverse, derogatory unpleasant or feel- This view is shared other authorities.2 ings opinions Prosser, or him.

page 756” Simple logic and reasoning dictate that quoted Torts, It then from Restatement whenever extrinsic evidence is needed page 559 that: § determine whether a statement is defama- tory “A or defamatory ambigu- communication is if it statement is tends so to harm the reputation of anoth- ous and should be decided er as to lower him in the estimation of Constitution, our unless a jury trial has community or persons to deter third waived, been in which event the trier of associating dealing from or with him.” Judge. facts could be the Wisconsin has a similar constitutional language given “The meaning is provision speech, etc., on free as North Da- person to whom it is addressed kota. ordinarily give would it. meaning Its is that which the recipient correctly or mis- Equity Cooperative In McCue v. Publish- takenly, reasonably understands it to ing 190,167 Fargo, Co. of N.W. 225 applies have. This test both to the court (1918), quoted approval in determining imputation whether an is following: per actionable se susceptible or of a de- injure “That which ‘reputation’ tends to famatory meaning and to the sense; popular to diminish the determining meaning that was esteem, respect, goodwill or confidence in language by held, readers or listen- plaintiff which the or to excite adverse, 138, page ers.” 50 Am.Jur.2d derogatory unpleasant 640. § feel- ings opinions against Prosser, him. “However, language ambiguous if the page 756” meanings, of two one de- famatory not, quoted Torts, It and the other it is for the then from Restatement page jury to decide whether 559 that: or not it was used § in a sense.” 53 Libel C.J.S. “A communication is if it page Slander tends so to harm the reputation of anoth- er as to lower him in the estimation of the “... It' the court to determine community or to persons deter third whether or not the on its face is associating dealing with him.” capable meaning of a double the mean- ing contended and as- Wisconsin has a similar constitutional innuendo; provision etc., on free cribed to it and if the speech, as North Da- kota. language is capable of such it is Newell, 1980), concept 2. This statement is also found in in substance states the same (4th ed.). concept Law of Slander and Libel II.4.12. A section Hanson’s book entitled similar is stated in addition, Sack, “Libel and Related Robert D. his book enti- “Libel, Slander, Problems,” Torts” 242 ¶ tled and Related published by Practicing (24 Law Institute Oct 468 for the jury say Judge

then to whether the The first (Berning), after consider- pleadings ing which was and understood and extrinsic evidence used consisting (pri- of an affidavit actually ascribed Moritz had the so to marily restating parts it.” C.J.S. Libel and Slander § making reference to action Dr. 339. page Glitner) and attorney an affidavit The Clinic contends that letter in for the defendants the time (setting forth was after drafted and modeled case), devoted his memoran- issued Am.Jur., Physicians found in 10 form opinion dum wherein he evaluated judicially 10:1515, Surgeons, provides as fol- “appears the letter and concluded that to lows: reasonably susceptible be construc- two you “This is to inform and that I advise tions, innocent one and the other defamato- withdrawing your your am from case as this, ry. In cases such as of facts the trier relieving myself any doctor and fur- should determine which is the construction professional responsibility ther for serv- (Beede) proper Judge one.” The second you. ices treatment to considering after pleadings addi- “However, you to allow a reasonable consisting tional depo- extrinsic evidence opportunity physician, to obtain another I exhibits, sitions, additional affidavits be shall available for services advice “other materials in the record” concluded of_, _day until the 19_By claim that the for relief was frivolous [that you date difficulty said should have no in granted letter innocent] securing professional service in this summary judgment. oppo- motion for community. judges, site views reached one two “I glad co-operate shall also be with very little and the other consider- reputable any physician your choice evidence, strong able extrinsic is a indica- request and make available to at his him tion that letter is ambiguous. all records my and data in files concern- necessary If such extrinsic material was your ing case. to determine whether the letter was defam- regret “I having give this notice of not atory appro- then the matter was not withdrawal but I feel it advisable in priate disposition by judgment for summary _(give fairness to us both since have been decided withdrawal, reasons for as such failure to waived, trial by jury unless a in which treatments, prescribed follow advice and judge event the would be the of facts.3 trier etc., keep appointments, failure to as the Furthermore, motion for be).” judgment granted if, should be after However, an examination discloses that considering light evidence in the most fa- paragraph the middle of the letter is com- party against vorable judg- whom pletely suggestions different from any ment is demanded there remains no Also, made the form 10:1515. any issue moving material fact and the gives no reason for the termination notice party judgment is entitled to as a matter of suggested by the form. law. Paul Fire St. & Marine Insurance Co. If letter had for Corporation, the reason Hess Amerada 275 N.W.2d (N.D.1979); termination the innuendoes would have Pioneer Bank v. State Johnsrud, been left and the reader would not be in a (N.D.1979). It position speculate. follows obviously that if inferences judgment Beede did not issue a memorandum of dismissal that “the court has con- explain affidavits, pleading, depositions, or otherwise the conclusion to sidered the ex- grant briefs, hibits, record,” the motion for a all other materials in the denying ambiguous dismissal. His actions in a motion to are indicative that the letter was prevent taking depositions necessary of the doctors extrinsic and that evidence was associated with meaning. the clinic and his statement determine its true granting the order the motion they precise drawn also must be considered whether or not this constituted light party most favorable to the was before this Court in Rickbeil v. Grafton sought. whom An af- Deaconess Hos- pital, N.W.2d 247 fidavit of a hostile witness should not be' The Court personal observed that the rights conclusive in a summary judg- treated as of the individual to be free from defama- Also, proceeding. Sagmiller, supra. ment tion of character are paramount any made, findings required if of fact are to be exigencies of business and the stenographer subject appropriate matter is not for types, who boy and the office copies, who judgment. Albers v. Nodak Rac- are personalities, individuals with even if Club, ing (N.D.1977). mere employees, whether the relationship principles These apply to actions in libel to exists, of master and servant or whether all ambiguous determine the true parties concerned are employees of an em- statements. ployer considering common to each. After affidavits, Depositions, and similar items some states, of the case law of other our presented by of extrinsic evidence were Court said: both sides and used to either establish that “We approve cannot the theory regard- the letter was or was not ing a stenographer stated in the Tennes- Therefore, princi- be. on the case, supra, see and other cases. We hold ples of law stated earlier herein this be- the dictating by of this letter comes a matter for to decide and is manager stenographer and her proper disposition by not transcription notes into the written judgment. instrument publication constitutes within purview of the law of libel: whether on the foregoing principles Based of law relationship be that of master and adopted and by announced this Court on ‘employees servant or of corpora- previous occasions, applicable principles ” tion.’ 23 N.W.2d at 257. question of law as whether or not the This harmony statement is in with Restate- contained libelous mate- ment of Torts rial, I conclude that the letter without ex- trinsic evidence can be construed either to The annotation in A.L.R.3d 1207sets out jurisdictions innocent and is a matter the various which hold that fact, by should be resolved secretary-typist, trier of dictation to a stenog- or a (bench jury, judge trial) rapher, publication if the constitutes and those waived, be, jurisdictions that do not. following was as the case by but not publication: hold that summary judgment. dictation is United courts, Alabama, Louisiana, States Federal As to the publication, issue of Maryland, York, Jersey, New New North was by manager dictated Dakota, Pennsylvania, Virginia. Clinic, and was transcribed the ste- jurisdictions Those that do not follow the nographer at the manager. direction of the publication view that dictation constitutes duties, As one of her transcribing after Carolina, Mississippi, are: and Ten- South getting signed, letter and she mailed it nessee. plaintiffs first class mail to as directed manager. stenographer did not juris- The annotation also reviews those know deposition then and at the time of her dictions which had occasion to determine what the lawsuit was about but knew it corporation whether or not a comes if, disposed of. jurisdictions holding Neither did she know the same rule. Those many, or how secretary-typist others saw the letter.4 that a dictation ato does likely brought pregnant 4. The termination notice most She became an action doctor, prompted operation compro- as a result in a of an on Mrs. which resulted Glitner, Moritz Dr. mise associate the Clin- settlement. ic, prevent becoming pregnant. her from Alabama, publication not are: company rely insurance constitute could not Georgia, Virginia. earlier, North Carolina and statutory privilege. As stated I am any not statutory privilege aware of availa- jurisdictions Those which hold that a cor- ble to the defendants. poration comes same under the rule and etc., stenographer-typist, to a major that dictation Our role and sole concern is to Dakota, judiciously constitutes are: North properly apply appropri- York, Maryland, law, in doing New District Columbia ate so our individual or (federal cases). only play The state of New York is collective attitude should a sec- precise role, Nevertheless, split ondary any. on this but the more if I can empathize recent cases and the federal courts within with the Clinic. rejected

the New York area have the con- implying I am the Clinic or cept secretary typist that dictation to a association of doctors not terminate its an exception pub- constituted and is not the any person except services to under the lication, adopted view was that possibility penalty. I implying of Nor am to a secretary stenographer dictation or that can only being be viewed as publication. constituted libelous. The method used and the circum- A in the review cases cited annota- stances under which a notice termination clearly accomplished given discloses or majority that makes difference jurisdictions follow the whether it is view dictation or not innocent secretary typist publica- to a constitutes or if it is a be decided tion, corporation jury, whether it be a if a been judge or an has waived. individual. juror, If I sit I proba- were to as a could reason, any legal bly

I am aware of valid arrive not at conclusion reached me, has presented Why majority, privilege preroga- and none been but that is a ruling this its assume here. overrule tive I Rickbeil, supra. particu- decision in This is I would conclude that the trial court larly so it is ruling where evident issuing judgment erred in the summary Rickbeil, supra, is in accord with the allowing attorney’s dismissal and order jurisdictions. majority $7,611.00, according- fees in the sum of remaining ly issue I whether or would reverse the and vacate us, not, allowing on the record statutory attorney’s before order fees and re- privilege available to the Clinic and mand the for its trial in accordance with manager. After a opinion. careful examination of (3), (1), (2), (4) NDCC subsections 14-02-05, we conclude that communi- question (the letter)

cation in not a was. privileged communication. We are not specifies aware of statute privilege as to shall what constitute none has been called to our attention. McCARNEY, P. Robert Plaintiff Judge (Berning)

The first trial Appellant, first motion the Clinic noted that a simi- larity existed between the instant case and Kent Richard JOHANNESON and D. the case Emo v. Milbank Mutual Insur- Olson, Appellees. Defendants and Co., (N.D.1971), ance Civ. No. 10062. policy which an insurance was canceled and privi- was whether or not the Supreme Court of North Dakota. lege provisions existed under the of NDCC Jan. 26-02-33 through §§ 26-02-35. The Court found canceling reason policy pro- not a matter and, therefore,

tected under the statute

Case Details

Case Name: Moritz v. Medical Arts Clinic, P. C.

Court Name: North Dakota Supreme Court

Date Published: Jan 19, 1982

Citation: 315 N.W.2d 458

Docket Number: Civ. 10036

Court Abbreviation: N.D.