William B. Lashlee, Jr. v. Morris E. Sumner

delivery plaintiff’s employ Md., Annapolis, defendant-appellee. charged er. Thus in the second count it is WEICK, ENGEL, Before LIVELY and duty that the of due defendant violated Judges. Circuit negligently plaintiff by care owed to the carelessly issuing The third LIVELY, Judge. Circuit count states that the was submitted This is an appeal summary judg- in bad faith ment for the diversity defendant in a case with the ex issued the based holding district court’s press purpose interfering with a benefi plaintiff’s action was relationship barred a one- cial contractual statute of Kentucky limitations. The employer. Finally, had with his is complaint charged that the defendant was in the fourth count that the defend claimed as employed consulting psychologist by report knowing deliberately ant issued the plain- running of the statute of limitations. eventually it would would cause him ex- tiff’s attention and The tort occurred when the slander was mental and emotional dis- suffering treme is in uttered. This accord with the in each complaint incorporates tress. The rule that a cause of action defamation allegations of the latter three counts the accrues at the time of 50 Am. publication. derogatory portions the first count that the Jur.2d, Slander, Libel and 390. Plaintiff § were false and un- “utterly argues that his cause of action for libel did that in true” and the defendant acted bad not accrue until he learned or should have recklessly, faith and without reasonable position learned of its existence. It is his grounds believing the statements were that he did not know he had been libeled true. until he was furnished a firmly The rule is established in Ken 22,1974,1 April “sometime after at the time limitations which tucky that a statute of he was company.” demoted within the tort specifically recognized ap mentions “discovery rule,” Thus he seeks to have the plies to all actions founded on that tort recognizes which in Kentucky now medical of the method which it regardless by is cases, malpractice applied to this action for claimed the tort has been committed. libel. Stanton, (Ky. v. 532 442 Skaggs S.W.2d Kentucky Court of Appeals recently 1975). Kentucky also observes the related departed previous holdings from its that in that a specific rule statute limitations malpractice medical cases the right of ac- purpose covers all actions whose real is to tion accrues the occurrence of the recover for the addressed it in injury Siehl, tort. Tomlinson v. 459 S.W.2d 166 preference general to a statute of limita (Ky.1970). Citing decisions which dealt tions. v. Texas Eastern Carr Transmission with the “inherently unknowable” nature of Corp., 344 619 The un (Ky.1961). S.W.2d the injury “blamelessly ignorant” and the derlying wrong which the complaint alleges victim, adopted the court the rule that a is defamation by publication of a libelous of action right malpractice for medical ac- report, injury and the claim of set out in upon discovery crues of the injury. each count from the act of springs publica Hart, 377, Hackworth v. 474 S.W.2d 379 tion. An essential element of each “cause (Ky.1971), the holding of Tomlinson was publication utterly action” is the of an begins restated as follows: “The statute plaintiff. false about the derogatory report discovery run on the date of of the injury, libel, gist entire action is should, or from the date it in the exercise of the district court held that properly ordinary diligence, care and have been dis- one-year applies statute of limitations to all (emphasis original). covered.” Plaintiff Quigley counts. See v. Hawthorne Lumber injury relationship contends that to his Co., (S.D.N.Y.1967). F.Supp. 264 214 with which employer resulted from the Plaintiff that if maintains even was unknowable until inherently its one-year applies district contents were to him and that revealed he holding court erred in that his cause of blamelessly ignorant wrong action accrued with the submission of the which had been inflicted. report by plaintiff’s The plaintiff has cited no case in which in October 1973. In Barnett v. Louisville & the discovery applied rule has been to toll Co., Nashville R. R. 407 F.2d 1333 Cir. limitations in a 1969), libel case. It has often been this court affirmed the dismissal of a jurisdictions slander action held other that failure of a by a district court in Ken claimant facts tucky finding concerning it had been com discover an menced more than one year alleged defamatory report post- after the action does not pone accrued. The the running court held “the occur of a statute of limitations. rence of the beginning g., Hettinger, tort” marked the of E. Kern 338 opposition plaintiffs affidavit to the 1. This fact was set out motion to dismiss. 110 Am.Jur.2d, 1962);

(2d applied 50 Libel and rule has been to toll limitations in Slander, supra. Though Kentucky an action damages against one who specifically Court has not dealt with an an underground extended coal mine be- rule to attempt apply discovery adjoining an neath land of an owner and ex- libel, it therefrom, action for has held Tomlinson tracted coal Falls Branch Coal Co., rule represents exception 262 Ky. Co. v. Proctor Coal being “with its limited to mal- application (1924); wrongful and in a death S.W. 300 Arnett, practice cases.” Caudill v. pre- the decedent’s action where widow (Ky.1972). There are simi- learning identity vented from plain- larities between the conditions which vehicle owner of hit-and-run alleges patient tiff and those of a who struck killed her failure of husband injury discovers an sometime after the owner to file an accident St. Line, produced medical treatment which it. If v. Bardstown Transfer 310 Ky. Clair highest Kentucky 776, the court of had not lim- (1949). 221 679 S.W.2d application discovery ited the rule In Kentucky each of the cited cases the plaintiffs argument be might persuasive. court found that the defendant a duty had See, g., e. Armstrong Morgan, v. 545 S.W.2d to disclose his wrongful person act to the 45, However, 47 (Tex.Civ.App.1977). the injured Branch, In by it. Falls the supra, parties agree that the law of Kentucky court related the concealment rule to the controls, and we depart are not free to from estoppel doctrine of and held that failure of it. Cf. Company Gates Rubber v. USM the trespasser notify adjoining to the owner Corporation, (7th 508 F.2d 603 1975). Cir. trespass was constructive fraud. The plaintiff fact that did not learn of the Hart, Hackworth v. supra, 474 at S.W.2d alleged libel until some months after its 380, “Ordinarily, the court stated: unless publication sufficient, standing was not the conduct of the defendant amounts to an alone, to toll the statute. absconding or concealment or obstructs the The final plaintiff contention of the is prosecution of the action will not toll the there was a material issue of fact running of Statute of Limitations.”2 before the court which precluded entry (citations omitted). of summary judgment. The amended com- The district court made a finding of fact

plaint charged that the defendant deliber- plaintiff knew that a “[t]he ately fraudulently concealed the al- testing prepared would be and sub- leged libelous from him. the company mitted to and same was avail- him through able to This defendant.”

Deliberate concealment a defend apparently is the basis the conclusion of ant of the plaintiff’s cause of action will toll law that the was available and acces- the statute of limitations. In Resthaven sible to the and there was no Volk, Memorial Cemetery Ky. v. 286 concealment. In Bohn Aluminum & Brass (1941), it was held that Corp. King Corp., Storm “when a wrongdoer intentionally conceals 1962), Judge Weick wrote for his unlawful act the statute of limitations the court: begins injured to run person when the learns of the summary unlawful act rather than from In ruling on a motion for the time of the act.” commission of This the court must construe the judgment, tion, Compare pro- this with the the time of the statement continuance of the ab- 413.190, “tolling” visions of KRS sence from the state or obstruction shall not applies only which computed period who part defendants are resi- as within Kentucky: dents of the action shall be But which commenced. saving prevent (2) this shall not the limitation When a cause of action mentioned operating person against favor of other KRS 413.090 to 413.160 accrues state, acting, necessary par- by absconding resident of not so whether he is a this and he concealing by any ty himself to the action or not. other indirect prosecution means obstructs of the ac-

Ill evidence in its contents. light its most favorable Related the concealment opposing question favor of the issue is a whether the party motion against Further, any duty had the movant. to inform papers movant are contents of the and of the supporting closely time of its scrutinized, submission to the opponent’s employer. Development whereas the are treated, question of this (citation may lead indulgently omitted). necessity of addressing the of privileged matter commu- The affidavit of defendant in support nications. The facts should have been de- its motion did not to dismiss address the veloped further. The affidavits addressed issue. The defendant concealment did not only the time of publication and the time of but complaint, answer rested on his discovery, matters are not dispositive which Fed.R.Civ.P., 56(c), motion. Rule permits grant- concealment claim. order if summary judgment only there are no ing summary premature at issues of material fact and record shows least.3 “that moving is party judg- entitled The judgment ment as a matter of law.” affidavit of of the district court is re- that he versed. The effect had not case is remanded for further proceedings been advised of the contents of the consistent with opinion. this April 1974, with the together until defend- WEICK, Judge, Circuit concurring and interrogatories ant’s answers to are relied dissenting part. facts setting specific as forth that exists. genuine show a issue Rule I agree with the majority gist that the of 56(e), defendant argues Fed.R.Civ.P. The plaintiff’s action was libel. Plaintiff’s alle- genuine no exists as to that issue conceal- gations in his Complaint contained counts in ment and that to interroga- his answers libel, namely, addition to counts of negli- that he conclusively tories show was enti- gence and malpractice, interference with issue as tled to a on this matter relations, contractual and intentional inflic- of law. distress, tion of emotional which were obvi- ously an endeavor to avoid Kentucky’s one support no We can find in the year statute applicable of limitations to record for court’s finding the district that suits for libel or slander. The endeavor plaintiff he could knew that learn the failed. The majority was correct in holding through contents of the defend that under Kentucky law the one year stat- ant and was that the report available to ute applicable limitations was to all him. A resolve may disputed court not counts. Carr v. Texas Eastern Transmis- summary facts on a judgment. motion for sion Corp., 344 619 (Ky.1961). Cf. Device, etc., United States v. Articles 527 Underwriters Storage at v. Peerless Lloyd’s 1976); F.2d (6th Cir. Felix v. Co., (6th 1977). 561 F.2d 20 Cir. (6th Young, 1126, 1130 Cir. 1976.) appears It court that the district undertook Plaintiff overlooks the fact that there to resolve issues of at least two fact: was relationship no contractual between whether did the defendant intentionally plaintiff Plaintiff and defendant. was not plaintiff conceal the report from patient, customer, thus a nor a of the defendant. action, of the obstructing prosecution and Plaintiff’s employer contracted with de- whether its plaintiff knew availabili agreed fendant whereby defendant to inter- ty diligence and to exercised due learn of view employees and other Judge dissenting opinion allegations by his Weick support refers its affidavit of his proof Thus, to the plaintiff and summary judgment. burden of failure of motion as to proof issue, issue of actually granted to offer fraudu- this motion press court district lent the case overlooks the pleadings. concealment. This fact that to dismiss on the We ex- by the district opinion was decided court be- no on the merits of the claim for concealment; fore the called prove was fraudulent but hold that on the anything. neither The defendant grant answered the record before us it was error to the de- complaint responded nor second amended fendant’s motion. Mississippi pro- Code 1942 company, psycho- to administer Section pro- and to

logical employees, tests to the that all actions for libel shall com- vides to the a written evaluation of tests vide within one next after such mence company. accrued, any action and not after. If voluntarily submitted to the this report, Plaintiff claim arose or accrued on made his written re- tests. defendant the report did so when was received to the port company on or about October customer, and not when defendant’s alleged Complaint. 1973. Plaintiff so in his plaintiff discovered its existence. The This is the when date the statute of limita- duty obligation defendant had no tions to run. began Barnett Louisville & re- reveal the contents of its confidential R., 1969). Nashville R. 407 F.2d 133 port plaintiff although it related to agreement There no or under- her. That rule as to time of accrual kind, standing any express either or im- right of a of action libel is stated in plied, copy was to receive a Atkinson, McCarlie v. 77 Miss. 27 So. de- agreement between firmly declared the 641. That decision fendant the company provided and that the accrued, all, if at rule to be that an action its contents was not to be and read opened when the plaintiff by any attention of one to whom it was addressed and party other than by the defendant himself. This recipient action of the defendant, recognized psychol- that the as a could constitute concealment. ogist, would be better able to explain to nothing There is in this record before the evaluation, defendant (psychologist’s) if court to show the existence of fraud e., defendant explanation, wanted an i. bet- ter than a layman’s explanation. part Plaintiff on the Its rules defendant. does not claim that the gave him regulations agreements with its report. He even asserts now customers to keep reports its confidential the defendant concealed the certainly do not amount to a fraud or the from him. It is therefore in- fairly to be pur- concealment of fraud within the ferred that plaintiff must have secured a view of 742 Mississippi Code § report only employer, from his provides: person any per- “If a liable to and probably at the time plaintiff was de- fraudulently sonal action shall conceal moted. knowledge the cause of action from the The situation analogous here is to that of thereto, person entitled the cause agencies Bradstreet, credit such as Dun and of action shall be deemed to have first and Retail Company. agen- Credit These at, before, not the accrued time at cies make credit investigations of applicants be, with which such fraud shall reason- for credit and furnish to their subscribers been, have diligence might able first reports written of the result of their inves- or discovered.” Fraud must be known tigations. agencies These do not furnish in and not in specifics stated conclusion- copies of their the reports appli- credit The ary general terms. rule is that this cants they investigate. whom The rules applying one to libel actions and regulations of these agencies which injury commenced to run when the oc- provide that reports their credit are to be discovery. curred and not at the time of kept confidential do not constitute fraud or public policy repose The inherent in agencies concealment of fraud. The owe no provides these statutes the reason and duty to the persons they investigate whom copies furnish to them of the credit re- application policy dictates of such ports they that their subscribers. render to case of this defendant kind where the the no but to exercise duty owed This was so held in v. Retail Cred- Wilson as good faith a fair of facts Co., 1045-46 by revealed to them their informants as it 1971), adopted opinion where the the Court Court, about her. stating part: sought District credit information second plaintiff’s court in The amended com- the nothing There is before motion for not tendered herein response plaint case in to said until after this show summary judgment specifically hearing the final herein and after the issue of genuine existence of any 20,1976, the Court on ruling February disentitling the fact in this case material complaint. dismissing matter judgment to a as defendant did not grant The leave to file the Court law. complaint. second amended In that com- for a sum- The motion of the defendant plaint plaintiff made following conclu- for the judgment will be sustained mary sory allegations: accord- indicated. A reasons deliberately The defendant and fraudu- may presented. be ingly lently concealed rule that Court followed the deliberately and fraudulent- to a applicable statute of limitations ly mislead the believing into when the action commences to run libel concerning that him would be the libel is injury occurs and not when favorable, as a result of which the plain- malpractice The exception discovered. is a tiff no reason had to believe applicable which is not here. Caudill action submitted the defendant would Arnett, 481 668 (Ky.1972). defamatory of him. Hart, In Hackworth v. 474 S.W.2d 377 The fact that the report made (Ky.1971), Court held: defendant to company was con- labelled Ordinarily, unless the conduct of the fidential; the fact that it was distributed amounts to an absconding only president plaintiff’s employ- prosecution concealment or obstructs the er; the fact that defendant’s agreement action, it will not the running toll with the company provided that only Statute of Limitations. way plaintiff could learn about the contents The Court further held that a mal- of the by meeting with practice action the statute of limitations defendant, does not constitute fraudulent commences to run the plaintiff at the time Co., concealment. Wilson v. Retail Credit discovered or in the exercise of ordinary supra. care should have discovered the injury. majority states: present case, in my opinion, there find support We can in the record was no evidence of concealment and the for the district court’s finding uncontroverted evidence was to the effect plaintiff knew that he could learn plaintiff, in the exercise of ordinary contents of the de- report through the care, could have discovered alleged the libel report fendant and that the was available shortly after it published, and did actu- to him. ally discover the libel in adequate time to brought have his action within the Dis- year finding one I the do not so read the of statutory period. finding trict To me the Court’s Court. reads as follows:

It is obvious that plaintiff’s claim of his report that a of knew plaintiff The concealment was afterthought. purely submitted and prepared testing would It is noteworthy Complaint, that in his filed available and same was Company May 12, 1975, consisting four Counts of the through defendant. to him allegation spread over six is no pages, there concealment, any of conceal- fraudulent knew finding “plaintiff As to the into the injected ment. This claim was not sub- and prepared would be that a pending until after the case case was alleged by this was company,” mitted to the eight than months. more 6 and paragraphs in Count I the no should be and there Complaint, of fact the District of the findings Judge In it. about question stated: the diligence to ascertain contents finding that “same to respect With through to him was available report] [the to of defendant defendant,” the answer grant- justified District Court was The the agree- 25 stated No. interrogatory uncontro- on the ing summary judgment company and ment between case, of and its verted facts aswas follows: be affirmed. should the defendant between agreement The Stationery Bank Com- and American condition would under no was that

pany ever be its contents any plaintiff by the attention himself. than the defendant

one other copy secure a of did fact

The defendant, from the but report, not 22, April on or about company, BENTON, City of OF TOWNSHIP proof any that he made 1964. There is Benton Harbor Harbor and Benton at effort obtain Schools, Plaintiffs-Appellees, Area that date. earlier than time v. existed over the actually If confusion BERRIEN, COUNTY OF findings interpretation of Chief Defendant-Appellant, Bratcher, it could have been Judge Rhodes living, Bratcher were still Judge clarified if Administration, Development Economic unfortunately he has since deceased. but Defendant. case not my opinion this does warrant hearing a new before another remand for BENTON, City of OF TOWNSHIP District who is unfamiliar with the Judge, Benton Harbor Harbor and Benton issues, problems has who his own Schools, Plaintiffs-Appellees, Area handling docket. an overcrowded proof this case burden ECONOMIC DEVELOPMENT prove grounds avoiding ADMINISTRATION, applicable Kentucky year one Defendant-Appellant, not Admittedly, plaintiff limitations. did file his within period action the one Berrien, County of Defendant. although he learn of the contents did statutory period and had report within Nos. and 77-1690. 77-1689 in which about six months thereafter to file Appeals, United States Court made learn action. He no effort Sixth Circuit. about the which he knew defend- on or ant had made to his .about Argued Dec. 1977. that he 1973. He admits learned October Feb. Decided Filed 22,1974, time April some after at least when he was demoted his em- May not file his action until He did

ployer.

12, 1975. proof

Plaintiff offered prior to him April unavailable fails lack of any proof

1974. His action support his claims of fraudulent conceal-

ment.

Further, to offer plaintiff neglected that he exercised reasonable care and

proof

Case Details

Case Name: William B. Lashlee, Jr. v. Morris E. Sumner

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 8, 1978

Citation: 570 F.2d 107

Docket Number: 76-1976

Court Abbreviation: 6th Cir.