Lead Opinion
Opinion of the
I. INTRODUCTION AND PROCEDURAL BACKGROUND
In June and July, 1995, Appellants, who were employees of a Monticello, Kentucky Wal-Mart, Inc. (‘Wal-Mart”) store, were terminated for “unauthorized removal of company property” and “violation of company policy” — specifically, for eating “claims candy,” i.e., candy from open or torn bags removed from the store’s shelves that had been taken to the store’s “claims area” to be processed by a claims clerk and then either discarded or returned. Appellants filed suit against Wal-Mart and their supervisor, Appellee Anthony Whitaker (“Whitaker”) contending that, before, during, and after their termination, Wal-Mart committed the tortious acts of (1) intentional infliction of emotional distress (IIED)/outrage, by engaging in illegal surveillance of Appellants and conducting accusatory termination interviews; (2) defamation, through written and oral accusations to, and in the presence of, third parties to the effect that Appellants had been discharged for theft; and (3) an invasion of Appellant’s privacy through violations of the provisions of KRS Chapter 526, which criminalizes conduct relating to eavesdropping.
A jury returned a verdict in Appellants’ favor on each of their claims. In accordance with the jury’s verdict, the Wayne Circuit Court entered judgment awarding each Appellant $2,000,000.00 in compensatory damages — $1,000,000.00 for “injury to reputation” and $1,000,000.00 for “embarrassment, humiliation, and mental anguish” — and $3,000,000.00 in punitive damages. Appellant Virginia Stringer (“Stringer”) was awarded an additional $20,000.00 for her lost wages.
The Court of Appeals held that the trial court erred by failing to direct a verdict in Appellees’ favor as to each of Appellants’ claims and reversed the trial court’s judgment in its entirety. We granted discretionary review and now affirm the Court of Appeals’s holding with respect to the IIED/outrage claim and the invasion-of-privacy/eavesdropping claim, but reverse its holding as to Appellants’ claim for defamation because the evidence at trial was sufficient to submit that claim to the jury. Because the jury’s compensatory and punitive damages verdicts do not segregate the damages awarded for each claim, we vacate the previous damage awards and remand the case for the trial court to conduct a retrial solely to determine appropri
II. ANALYSIS
A. STANDARD OF REVIEW
Appellate review of a trial court’s denial of a motion for directed verdict is limited to a determination of whether the jury’s verdict was palpably or flagrantly contrary to the evidence presented at trial:
Upon review of the evidence supporting a judgment entered upon a jury verdict, the role of an appellate court is limited to determining whether the trial court erred in failing to grant the motion for directed verdict. All evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact. The prevailing party is entitled to all reasonable inferences which may be drawn from the evidence. Upon completion of such an evidentiary review, the appellate court must determine whether the verdict rendered is “ ‘palpably or flagrantly’ against the evidence so as ‘to indicate that it was reached as a result of passion or prejudice. ’ ” If the reviewing court concludes that such is the case, it is at liberty to reverse the judgment on the grounds that the trial court erred in failing to [grant] the motion for directed verdict. Otherwise, the judgment must be affirmed.1
Accordingly, we review the sufficiency of the evidence with respect to each of Appellant’s three (3) claims under this standard.
B. IIED / OUTRAGEOUS CONDUCT
Count I of Appellants’ complaint stated a claim for IIED/outrage. Paragraphs 1-17 detailed Appellants’ “conspiracy theory,” i.e., Appellants’ claim that store policy actually permitted the consumption of claims candy and that the store’s manager, Whitaker, installed the video equipment in order to fabricate a pretense for terminating Appellants when his actual motive was to prevent his own demotion by reducing payroll expenses and demonstrating a “get tough on inventory shrinkage” stance. The remainder of Count I alleged:
18. That at the time of the discharge of the plaintiffs, they were told that they could not leave the store after having worked the entire night. The[y] were brought in one at a time and were abruptly told by Anthony Whitaker and Lee Scholenberger that they were being fired for “steаling” and that they had videotaped them. The plaintiff, Donnie H. Brummett, was told to make it easy on himself and admit to stealing stereos and electric razors. The plaintiff, Virginia Stringer, was questioned about missing items in the claims area such as fishing rods. The plaintiffs, during their discharge, were treated by the defendants and their representative as criminals (thieves). In fact, the plaintiff, Donnie H. Brum-mett, was told that if he did not sue them they would not press criminal charges.
19. That the actions of the defendant, Anthony Whitaker, with the acquiescence and approval of the defendant, Wal Mart, were malicious, outrageous, intentional, and/or such a wantoncourse of conduct such [sic] it was their intent to cause the plaintiffs sever[e] emotional distress, or that their conduct was such that the defendants, knew, or should have known, that their conduct would cause or be likely to cause severe emotional distress.
20. That each of the plaintiffs have suffered severe emotional distress, consisting of fright, shame, humiliation, apprehension, and anxiety, as the direct and proximate result of the defendant’s aforementioned conduct and are entitled to recover from the defendants, jointly and severally, both compensatory and punitive damages in excess of the jurisdictional limits of this Court.
At trial, however, Appellants argued that Appellees’ outrageous conduct consisted of more than the set-up, surveillance, and accusatory exit interviews. And, on appeal, Appellants advocate that the jury’s verdict was supported by evidence demonstrating that Appellees: (1) escorted three of the four Appellants out of the store following their termination; (2) implied to other employees that Appellants were thieves (an assertion that is facially dupli-cative of Appellants’ defamation claim); (3) attempted to deny Appellants their unemployment benefits; and (4) used the surveillance tape to train employees.
In Craft v. Rice,
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.3
A prima facie case of IIED/outrage requires that:
1) the wrongdoer’s conduct must be intentional or reckless;
2) the conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality;
3) there must be a causal connection between the wrongdoer’s conduct and the emotional distress; and
4) the emotional distress must be severe.4
In opinions interpreting the scope of this cause of action, which has been likened to a criminal action for harassment,
Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”
The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppression, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime, plaintiffs will necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no reason for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam ....10
With these goalposts in mind, Kentucky courts have found plaintiffs’ proof of outrageous conduct sufficient to support an outrage/IIED claim in cases where the defendants: (1) harassed the plaintiff “by keeping her under surveillance at work and home, telling her over the CB radio that he would put her husband in jail and driving so as to force her vehicle into an opposing lane of traffic”;
Outrageousness has been found lacking, however, in less-egregious cases where the defendant: (1) refused to pay medical expenses arising out of an injured worker’s compensation claim;
After examining the evidence in a light most favorable to Appellants, we agree with the Court of Appeals that the trial court erred when it denied Appellees’ motion for a directed verdict. We have set a high threshold for IIED/outrage claims, i.e., that the conduct at issue must be “a deviation from all reasonable bounds of decency and is utterly intolerable in a civilized community,”
C. DEFAMATION
Count II of Appellants’ Complaint alleged:
2. That following the discharge of the plaintiffs, the defendant, Wal Mart, by and through it’s [sic] management team at the Monticello Wal Mart, and the defendant, Anthony Whitaker, made false and defamatory statements to persons other than the plaintiffs, that would lead a reasonable person to believe that the plaintiffs were involved in stealing property from Wal Mart.
3. That the statements by the defendants were false and are defamatory per se.
4. That as a direct and proximate result of the defamatory statements made by the defendants, the plaintiffs have suffered:
a. Injury to their reputation in the community;
b. Mental anguish and injury to their feelings;
c. Loss of income proximately resulting from the defamatory statements;
d. Injury to credit proximately resulting from the defamatory statements;
e. Losses and injuries reasonably certain to be sustained in the future.
5.That the defamatory statements of the defendants were intentional, with malice or with reckless disregard as whether they were false or not, thus the plaintiffs are entitled to punitive damages.
At trial, Appellants introduced evidence concerning five separate allеgedly defamatory oral or written statements made by Appellees: (1) oral statements made by Whitaker at a store-wide meeting he conducted in a public area of the store within a few weeks of Appellants’ firing that were “more or less that some associates had been fired for stealing,” that indicated that theft would not be tolerated at the store and “it didn’t matter whether it was an associate or customers,” and that “left the impression that there was more to it ... than just claims candy;” (2) an oral statement from James Carey, a Wal-Mart Assistant Manager, who, when asked whether Appellants had been terminated for eating candy from the claims area, responded “ ‘[t]here was more to it than that’ and that he couldn’t talk about it” while in the employee lounge and in the presence of at least three employees; (3) a written document completed by Whitaker at the termination interview specifying that each employee had been terminated from employment because of “unauthorized removal of company property,” that was forwarded to the store’s personnel offiсe and its contents were entered into the corporate computer system; (4) an oral statement made by Wal-Mart personnel at a district-wide meeting of Wal-Mart management to the effect that “[w]e had four people fired for stealing out of receiving [or for an integrity issue.” — “the witness was equivocal regarding the exact phrasing]. I’m not going to tell you who it is or what store it is”; and (5) Whitaker’s forwarding of the exit interview
Although constitutional protections for free speech and freedom of the press require heightened proof requirements and other modifications to the common law of defamation in certain situations, the case at bar, which involves allegedly defamatory statements of a purely private concern about private persons, do not implicate those constitutional protections. We thus measure the sufficiency of Appellants’ defamation claims аgainst the elements of prima facie cases of common law libel and slander and the defenses relied upon by Appellees.
“Defamation by writing and by contemporary means analogous to writing ... is libel. Defamation communicated orally is slander.”
1. defamatory language
2. about the plaintiff
3. which is published and
4. which causes injury to reputation.
Because the proof necessary to demonstrate an injury to reputation varies depending upon the characterization of the defamatory language as one of four at-largely-anaehronistic
Generally, defamatory words written or spoken of another are divided into two classes in determining the extent to which they are actionable. Words may be actionable per se, or per quod. In the former class, damages are presumed аnd the person defamed may recover without allegation or proof of special damages. In the latter class, recovery may be sustained only upon an allegation and proof of special damages....42
In other words, “[w]ords are said to be actionable per se when there is a conclusive presumption of both malice and damage[,]”
In comparison to slanderous per se oral statements, which must contain
Undoubtedly, the most common type of slander action in the recorded Kеntucky decisions involves imputation of some form of larceny or related proprietary offense. Although there is limited early dicta to the contrary, it is now well-settled that no “particular act or transaction” sufficient for indictment is required, as long as the “general terms” “clearly and unequivocally” impute a “high crime, such as murder, robbery, or theft.” Consequently, it has been held slanderous per se to impute any of the following forms of felonious misappropriation to the plaintiff: “(God-damned) thief;” “thief;” “nothing but a thief;” “thieving old daddy-in-law;” “has been stealing from” a third person and “has stolen money from me;” “has stolen all over the country;” “he stole;” “(y)ou may call that what you please, stealing or taking;” “did steal from me;” “I discharged [plaintiff] for stealing;” “he follows stealing everything he can get his hands on;” that he “stole and carried away everything (third party) had;” defendant “believed” plaintiff “stole my meat and flour;” “stole hogs” or “hog stealing;” he “stole the check back from me and took it away .... If he don’t pay the money back I am going to prosecute him in three cases — forgery, obtaining money by false pretenses, and for stealing the check;” burglary of a store house; inside participatiоn in robbery of a motel; marking unbranded cattle with felonious intent; changing of “some coal loaders” checks from other miners’ cars and putting his checks on said cars; and he [defendant] had “caught him at it.” Such words, whether general or specific, are actionable per se regardless of the amount of money involved.49
We find that Appellants thus demonstrated a prima facie case for common law defamation per se.
To determine whether the evidence was sufficient to support the jury’s verdict for Appellants, however, we must also address Appellees’ defenses. First, it is beyond dispute that “[i]n this state, truth is a complete defense[,]”
Since the “law will not presume misconduct of a person,” the falsity of defamatory words is presumed. Consequently, the defendant has the burden of proving truth as an affirmative defense or “justification” by a preponderance of the evidence. If the defendant fulfills this burden, he has a complete defense to a civil action in defamation, a doctrine “so thoroughly established and deeply rooted” as to lead one modern Kentucky decision to conclude that citation of authority was unnecessary_[T]he modern Kentucky rule is that truth remains an absolute defense even though “the publication may have been inspired by malice or ill will.”51
Accordingly, “if the evidence supports, without contradiction or room for reasonable difference of opinion, the defense that these [statements] were substantially true, it would necessarily follow that the jury should have been directed to find a verdict for the defendant, because the truth is always a complete defense.”
Second, although the prima facie case for common law defamation presumes malice, and therefore does not require the plaintiff to make an affirmative showing of it, we have determined that strict liability of that sort is inappropriate in circumstances where the publisher, a third person, or the public has a cognizable interest in communicating the defamatory information. Accordingly, we have recognized a series of qualified or conditional privileges, including “where ‘the communication is one in which the party has an interest and it is made to another having a corresponding interest, the communication is privileged if made in good faith and without actual malice.’”
The condition attached to all such qualified privileges is that they must be exercised in a reasonable manner and for a proper purpose. The immunity is forfeited if the defendant steps outside the scope of the privilege, or abuses the occasion. The qualified privilege does not extend ... to the publication of irrelevant defamatory matter with no bearing upon the public or private interest which is entitled to protection.60
In effect, the existence of a qualified privilege merely places a “technical burden of proof’ regarding malice upon the plaintiff:
The significance of the defense of qualified or conditional privilege is that it removes the conclusive presumption of malice otherwise attaching to words that are actionable per se and thereby casts on the plaintiff a technical burden of proof in that respect. This does not require any greater degree of proof by the plaintiff, because the offensive character of the words still is sufficient by itself to support an inference of malice. The practical difference, therefore, is that in the one case the instructions do not require a finding of malice as a condition to recover and in the other they do.61
The record clearly established that eating claims candy without paying was plainly against published company policy. The Associate Handbook specifically addresses such situation:
Dishonesty in any form will result in immediate termination....
In a retail environment, taking anything, large or small, is dishonest. For example, eating candy from a broken bag without paying for it is dishonest.
Upon the foregoing, the act of eating claims candy without paying was considered a dishonest act and constituted grounds for dismissal. The simple fact is that [Appellants] “took” company property without paying; this constituted theft оf company property. As a matter of law, we hold that Wal-Mart’s alleged statements surrounding appel-lees’ termination were not actionable as such statements were true....
Although the parties’ briefs address themselves primarily to this finding by the Court of Appeals, we conclude that it is unnecessary for us to wade into the issue of whether “company policy,” as actually implemented in the Wal-Mart store in question, permitted or prohibited the consumption of claims candy because the defamatory statements in this case attributed larcenous actions beyond mere claims candy consumption to Appellants. In the second defamatory statement of which Appellants complain, the Assistant Manager stated that “there was more to” Appellants’ termination than the theft of claims candy, which, in the context stated, could reasonably.have been, and was, according to the testimony of Wal-Mart employee Joyce Floyd, who overheard the statement, interpreted as an assertion that Appellants had stolen items in addition to claims candy.
D. INVASION OF PRIVACY / VIOLATION OF KRS CHAPTER 526
Count IV of Appellants’ First Amended Complaint alleged:
1. That during the month of June 1995, the defendants, Wal-Mart Store, Inc. and Anthony Whitaker, by and through its authorized representatives intentionally installed or had installed an eavesdropping device (to wit, a video camera with audio recording), in the work area of the plaintiffs, Virginia Stringer, Reual E. Angel, Donnie H. Brummett, and Tina Sparks.
2. That said eavesdropping device was installed or placed with the knowledge that it was to be used for eavesdropping, in violation of KRS 526.030.
3. That the defendants, Wal-Mart Stores, Inc. and Anthony Whitaker, did in fact eavesdrop and record the private oral communications of the plaintiffs, Virginia Stringer, Reual E. Angel, Donnie H. Brummett, and Tina Sparks, without the consent of at least one party to said conversations, in violation of KRS 526.020.
4. That the defendants, Wal-Mart Stores, Inc. and Anthony Whitaker, knowingly used or divulged information obtained through eavesdropping in violation of KRS 526.060.
5. That the acts of the defendants, Wal-Mart Stores, Inc. and Anthony Whitaker, described above resulted in the invasion of the plaintiffs [sic] right to privacy in their oral communications.
6. That as a result of said invasion of privacy, the plaintiffs, Virginia Stringer, Reual E. Angel, Donnie H. Brum-mett, and Tina Sparks, have sustained injury to their reputation in the community; mental anguish; loss of income and benefits, and are entitled to recover from the defendants, Wal-Mart Stores, Inc. and Anthony Whitaker, appropriate compensatory damages.
7. That the actions of the defendants, described above were malicious and intentional and thus the plaintiffs, Virginia Stringer, Reual E. Angel, Donnie H. Brummett, and Tina Sparks, are entitled to recover punitive damages.
The trial testimony revealed that, at the direction of Whitaker and Lee Schollen-berger, District Loss Prevention Manager and Whitaker’s superior, Wal-Mart engaged in approximately forty hours of audio and video surveillance in the claims area of the Monticello Wal-Mart store without the employees’ knowledge. The surveillance originated when Whitaker in
Fairly late in the trial court proceedings, Appellants amended their complaint to add a claim for “invasion of privacy.” The claim itself, however, bore little resemblance to the label Appellants placed upon it, and it appears from the record that a great deal of confusion has resulted and continues to result from Appellants’ alternative characterizations of the claim as either a common law right of privacy claim premised upon a defendant’s intrusion upon the plaintiffs seclusion
We observe that, by virtue of the fact that the trial court’s summary judgment order did not address any of the elements of a claim for common law invasion of privacy, the trial court appears to have treated Appellants’ claim as one for civil recovery for a violation of a statute. Accordingly, we, like the Court of Appeals below, will evaluate the claim as Appellants now describe it.
The Court of Appeals held that: (1) the trial court erred when it granted partial summary judgment for Appellants because ‘Wal-Mart’s conduct in recording conversation in the claims area as a mere incident of their intent to video the area fall[s] short of intent.... [W]e are convinced that the acts of Wal-Mart were not offensive to the eavesdropping statute”; and (2) Appellees were entitled to a directed verdict at trial because Appellants failed to prove that they suffered any damages as a result of a violation of any of the KRS Chapter 526 eavesdropping offenses:
Recovery under [KRS 446.070] may not be had merely because another has violated the act, but rather the one seeking recovery must havе sustained some special injury and the injury must be the proximate result of the statute’s violation. In short, the statute does not give a right of action against every person violating a statute, but only to persons suffering an injury as a direct and proximate result thereof; and then only for such damages as they may actually sustain.
Appellees failed to prove any damage suffered as a result of the recorded conversations, and we think it incumbent upon appellees to demonstrate injury resulting from Wal-Mart’s audio surveillance. Hence, we are of the opinion that appellees failed to prove damages flowing from the illegally recorded conversations. We must conclude that Wal-Mart was entitled to a directed verdict.
E. DAMAGES
Although we agree with Appellants’ contention that Appellees’ arguments concerning the jury’s damage awards are not properly before the Court because Appellees did not file a cross-motion for discretionary review on that issue,
III. CONCLUSION
For the above reasons, we: (1) affirm the Court of Appeals’s reversal of the judgments for Appellants on their IIED/outrage and right of privacy/eavesdropping claims; (2) reverse the Court of
Notes
. Lewis v. Bledsoe Surface Min. Co., Ky.,
. Ky.,
. RESTATEMENT (SECOND) OF TORTS § 46(1) (1965).
. Humana of Kentucky, Inc. v. Seitz, Ky.,
. Zurich Ins. Co. v. Mitchell, Ky.,
. First and Farmer’s Bank of Somerset, Inc. v. Henderson, Ky.App.,
. Id.
. Burgess v. Taylor, Ky.App.,
. RESTATEMENT (SECOND) OF TORTS § 46(1) cmt. h (1965). See also Whittington v. Whittington, Ky.App.,
. RESTATEMENT (SECOND) OF TORTS § 46(1) cmt. d (1965). See also Kroger Company v. Willgruber, Ky.,
. Craft,
. Bailey,
. Willgruber,
. Brewer,
. Osborne v. Payne, Ky.,
. Burgess,
. Wilson,
. Mitchell,
. Henderson,
. Wilhoite,
. Whittington,
. Bednarek,
. Seitz,
. Allen v. Clemons, Ky.App.,
. Kentucky Farm Bureau Mutual Ins. Co. v. Burton, Ky.App.,
. Arlinghaus v. Gallenstein, Ky.App.,
. Rigazio v. Archdiocese of Louisville, Ky.App.,
. Gilbert v. Barkes, Ky.,
. Banks v. Fritsch, Ky.App.,
. Ammon v. Welty, Ky.App.,
. Craft,
. Firestone Textile Co. v. Meadows, Ky.,
. RESTATEMENT (SECOND) OF TORTS § 46(1) cmt. f (1965).
. 2 DAN B. DOBBS, THE LAW OF TORTS, § 401 at 1120 (2001). See also McCall v. Courier-Journal & Louisville Times Co., Ky.,
. Fordson Coal Co. v. Carter,
. Columbia Sussex Corp., Inc. v. Hay, Ky.App.,
. RESTATEMENT (SECOND) OF TORTS § 559 (1977). See also Ball v. E.W. Scripps Co., Ky.,
. Yancey v. Hamilton, Ky.,
. E.W. Scripps Co. v. Cholmondelay, Ky.App.,
. RESTATEMENT (SECOND) OF TORTS § 577 (1977).
. DAVID A. ELDER,, KENTUCKY TORT LAW: DEFAMATION AND THE RIGHT OF PRIVACY, § 1.07(A) at 40 (1983) [hereinafter ELDER] (referencing “the anomalous and anachronistic nature of the common law distinctions between libel and slander" (footnote omitted)).
. Hill v. Evans, Ky.,
. Walker v. Tucker,
. ELDER, supra note 41, § 1.06 at 37.
. Id.
. Courier Journal Co. v. Noble,
. Cholmondelay,
. 50 AM. JUR. 2D Libel and Slander § 185 at 465 (1995).
. ELDER, supra note 41 at § 1.07(C)(1)(b) at 68.
. Bell v. Courier-Journal and Louisville Times Co., Ky.,
. ELDER, supra note 41 at § 1.10(A) at 133-35.
. Herald Pub. Co. v. Feltner,
. Baker v. Clark,
. Columbia Sussex,
. See Dossett v. New York Mining and Manufacturing Co., Ky.,
. Baskett,
. See Thompson v. Bridges,
. Stewart v. Williams,
. Baskett,
. Tucker v. Kilgore, Ky.,
. Tucker v. Kilgore
. Columbia Sussex,
. See Yancey,
. See Dossett,
. Tanner,
. McCall,
.
. See ELDER, supra note 41 at § 3.03; Rhodes v. Graham,
. CR 76.21; Commonwealth of Kentucky, Transportation Cabinet v. Taub, Ky.,
Dissenting Opinion
dissenting.
The majority presents a sound and thorough explanation of the law of defamation in Kentucky. However, the legal analysis presented in the majority opinion reminds me of Mark Twain’s observation, “Truth is mighty and will prevail. There is nothing the matter with this, except that it ain’t so.” Truth is a complete defense to defamation claims; unfortunately, the sophistry of persuasive attorneys has сonvinced both the jury and this Court of an unreasonable interpretation of the alleged defamatory statement.
The statement that, “ ‘[tjhere was more to it than that’ and that he couldn’t talk about it” appears to be the jackpot in the majority’s search for anything capable of a defamatory meaning. Unfortunately, there is nothing in that statement that a reasonable juror could find defamatory. The statement is clearly offensive to a disgruntled employee, and while I sympathize with Appellants’ attitude toward their former employer, I fail to find any reasonable defamatory meaning to an objective observer that would establish Appellees’ liability. Of all the facts alleged in Appellants’ brief, I found the statement made by the Assistant Manager reflected a measure of decorum in that it conveyed nothing at all. “There’s more to it than that” generally means, “I don’t want to talk about it:” an interpretation that seems exceptionally reasonable when he continued to say exactly that. The statement would not imply any wrongdoing to a reasonable listener.
Here, Appellants’ own admissions established the truth of Wal-Mart’s statements regarding Appellants’ terminations. Appellants’ defamation claim is that Wal-Mart and Whitaker implied to others that Appellants were thieves. Yet, all four of these former employees admit that it was they — not their employer — who used the terminology “thief’ to describe the reason for their discharge.
Even assuming that Mr. Whitaker “imputed” theft as the reason for Appellants’ discharge, the statement is true.
Even though the food Appellants admitted eating had no value to Wal-Mart and could not be paid for, Appellants’ “destined for the dumpster” argument is wholly irrelevant to the fact that they violated the company’s dishonesty policy. It is also disingenuous in that it ignores the fundamental distinction between taking
Mr. Whitaker’s policy is undisputed: employees cannot eat anything from claims before it is recorded and accounted for, and even then not without permission. Appellants admit this fact. At the employee meeting several days before Appellants were fired, Mr. Whitaker reiterated the policy in no uncertain terms: “And, if anyone has taken anything without paying for it, then you need to stop it immediately.”
Likewise, Appellants point to the testimony of John Pennycuff, a disgruntled former employee of Wal-Mart and former brother-in-law of Ms. Sparks, for the notion that eating claims candy before processing is okay. Mr. Pennycuffs testimony is probative of nothing about the Monticello store policies in 1995. Mr. Pennycuff had not been employed with the Monticello store fоr three years before Appellants were terminated. He admitted having no personal knowledge of either how they were discharged or how Mr. Whitaker enforced the written policy against dishonesty.
It is true that Appellants consumed unprocessed claims merchandise belonging to Wal-Mart. It is also true that consuming claims merchandise is a violation of Wal-Mart’s honesty policy. It is finally true, then, as marked on Appellants’ termination forms, that they were discharged for violation of company policy and unauthorized removal of company property.
Based on the truth defense and the unreasonableness of a defamatory meaning to any of the alleged defamatory statements, I would affirm the Court of Appeals. The alleged defamation was not only substantially true, but also true in its essential parts.
COOPER, J., and WINTERSHEIMER, J., join in this dissent.
. The fact that Appellants had to rely on claims of "imputation,” effectively concedes the fact that they could not, and clearly did not, prove that any of the actual words spoken or written about them by Wal-Mart were false. See Pierce v. Capital Cities Communications, Inc.,