Gray v. Central Bank & Trust Co.

PARK, Judge

(concurring).

Although I concur in the result reached in the majority opinion, I cannot agree that all of the actions taken by Garvice D. Kin-caid were absolutely privileged under the provisions of KRS 84.050(5). However, I believe that the judgment of the circuit court should be affirmed for other reasons.

In Jacobs v. Underwood, Ky., 484 S.W.2d 855, 857 (1972), the court recognized that, at common law, members of quasi legislative bodies enjoyed only a qualified privilege. The statements of members of such quasi legislative bodies were privileged only if the statements made were without malice and without reckless disregard for the truth. The question whether the statements were reckless or malicious was generally for the jury. In the Jacobs case, the defamatory statements were made by a member of the Lexington City Commission during a meeting of the commission. At the time, the city of Lexington was operating under the city manager form of government. KRS 89.390 et seq. The city of Lexington was a second class city and was subject to all of the general statutes applicable to second class cities to the extent that they were not inconsistent with the city manager form of government. KRS 89.400. Chapter 84 of the Kentucky Revised Statutes makes general provision for the government of cities of the second class. KRS 84.050(5) provides:

For anything said in debate, members of the general council are entitled to the same immunities and protection allowed to members of the general assembly.

In the Jacobs case, the court held that KRS 84.050(5) conferred an absolute privilege on members of the city council for statements made during a meeting. Id. at 857. However, I do not believe that the absolute immunity provided members of city councils of cities of the second class under KRS 84.050(5) can be extended to the members of an airport board organized under Chapter 183 of the Kentucky Revised Statutes.

KRS 183.132(2) provides that an airport board is “a body politic and corporate” and that it constitutes “a legislative body” for the purpose of issuing revenue bonds. Without doubt, the airport board is a municipal corporation. However, it does not follow that the airport board is governed by the statutes applicable to a city of the second class, thereby affording its board members the absolute immunity provided by KRS 84.050(5). In the absence of any *660specific legislation applicable to airport boards, the members of an airport board possess only a qualified, rather than absolute, privilege for statements made during official meetings.

Furthermore, the record establishes that on September 16, 1974, Kincaid met with representatives of the other banks proposing to finance the construction of the airport terminal. Kincaid stated that he would withdraw the Central Bank and Trust Company from participation in the loan if Gray Construction were awarded the contract. On that occasion, Kincaid was not acting solely as a member of the airport board. Clearly, Kincaid was also acting in his capacity as president and director of the Central Bank. The court should be extremely reluctant to cloak members of quasi municipal corporations such as an airport board with absolute immunity when they are acting in a dual capacity.1

Even though Kincaid should not have absolute immunity for his actions, it does not follow that the appellants have shown that there was any genuine issue of material fact. By their pleading, the appellants have attempted to set up three possible theories of liability on the part of Kincaid and Central Bank: (1) slander; (2) injurious falsehood; and, (3) wrongful interference with prospective contractual relations. In my opinion, the record demonstrates that the appellants were not entitled to recover on any theory.

As the basis for the action for slander, Gray relies upon three statements allegedly made by Kincaid. According to Gray, Kin-caid stated that Gray was (1) wet behind the ears; (2) twenty-three years of age, rather than twenty-four; and, (3) inexperienced in large construction projects. These statements are not defamatory per se. The language in question is not calculated to subject Gray to hatred, ridicule, contempt, or disgrace, or to induce an evil opinion of him in the minds of right thinking people. See Bell v. Courier Journal and Louisville Times Company, Ky., 402 S.W.2d 84 (1966), and the cases collected in the annotation, 6 A.L.R.2d 1008.

With respect to Gray Construction Company, Kincaid is alleged to have stated that the company had little experience in projects of the magnitude of the airport terminal. This statement is not defamatory. It is not a charge of general incompetence, but related solely to the company’s ability to do a particular job. See Manire v. Hubbard, 110 Ky. 311, 61 S.W. 466 (1901). Kincaid is also alleged to have stated that the company failed to provide a requested list of sub-contractors and materials to be used. From the record, it is apparent that this statement is true, and, in any event, it is not defamatory. Kincaid also read from a Dun & Bradstreet Report on the construction company. As a member of the airport board and president of the Central Bank, Kincaid clearly was entitled to consider the Dun & Bradstreet Report, and he was privileged to pass that information on to the other board members and the representatives of the other banks participating in the terminal construction loan. The record conclusively demonstrates that neither Gray nor Gray Construction Company had any valid claim for defamation against Kincaid.

Although the same statements which could give rise to an action for defamation can also be the basis of an action for injurious falsehood, there are substantial differences between the two actions. In an action for injurious falsehood, not only must the plaintiff show a false statement with respect to the plaintiff’s business, but the plaintiff must also plead and prove special damage. W. Prosser, Law of Torts § 128 (4th ed. 1971). In the present case, the record establishes that there can be no special damages. Gray Construction Company’s bid had expired by its own terms. Gray Construction refused to extend the period of its bid without an agreement by the airport board to increase the contract price. This was never done. Consequently, *661at the time the board determined to award the contract to White and Congleton, the only valid bid before the airport board was the bid of White and Congleton. Gray Construction Company cannot claim that it was deprived of the contract when it refused to extend the period of its bid.

The last theory of liability is based upon Kincaid’s threat to withdraw Central Bank from the financing of the airport terminal if the contract were awarded to Gray Construction Company. In effect, Kincaid was charged with improper interference with a prospective contractual relationship. However, it is difficult to see how Kincaid induced or caused the airport board not to enter into a contract with Gray Construction Company when Gray Construction Company itself refused to extend its bid. Furthermore, Kincaid had a right to act to protect both the interests of the airport board and the Central Bank in attempting to persuade the other members of the airport board not to contract with Gray Construction Company. Kincaid did not employ wrongful means which were themselves tortious. Consequently, Kincaid did not interfere improperly with a prospective contractual relation between Gray Construction Company and the airport board. Restatement (Second) of Torts, §§ 769 and 770 (Tentative Draft No. 23, 1977).

For the foregoing reasons, I do not believe that the circuit court erred in sustaining the motion for summary judgment.

. I would afford Kincaid only a qualified privilege under the Restatement (Second) of Torts, § 895 D(3)(b) (Tentative Draft No. 19, 1973). See Thompson v. Huecker, Ky.App., 559 S.W.2d 488 (1977).