Buckner v. Carlton

SUPPLEMENTARY OPINION

CANTRELL, Judge.

In our original Opinion we held that for the acts alleged against the defendants, Kersey and Carlton, they were immune from a suit for damages by the doctrines of executive immunity and T.C.A. § 49-1416(9). The statutory immunity we held to be absolute.

We granted appellant’s Petition to Rehear on the strength of his allegation in the petition that the defendant Kersey was not an employee of the School Board at the time of the acts he is alleged to have committed. Therefore, the absolute immunity of T.C.A. § 49-1416(9) arguably would not extend to him since it covers “the superintendent or other school officials.”

While on a closer reading of the complaint and the amended complaint it is still not clear when the alleged acts took place with respect to the defendant Kersey’s employment, for the purpose of this opinion we accept the appellant’s position and assume that the complaint alleges that Ker-sey was not an employee of the Board at the time of the acts complained of.

That concession, however, does not change the result in this case. The only allegation concerning the acts committed by Kersey are found in Paragraphs V and VIII of the complaint. These allegations are:

V. That after being rebuffed in his initial attempt to falsely and maliciously procure plaintiff’s dismissal from his job as Principal, defendant Carlton thereupon sought to obtain additional information in order to continue with his malicious scheme to destroy plaintiff and get plaintiff fired from his job as Principal. Pursuant to said malicious scheme, defendant Carlton did thereafter conspire with defendant Kersey to bring about additional false charges which though stated in the letter to the Board as simply alleging that plaintiff had not followed proper accounting procedures concerning an insurance check payable to Riverdale High School, nevertheless, defendant Carlton conspired with defendant Kersey for defendant Kersey to actually testify that Mr. Buckner had himself been the recipient of the proceeds of said check and had therefore wrongly appropriated school monies to himself. Defendant Kersey well knew said information to be false and defendant Carlton knew or reasonably should have known of their falsity and failed to investigate them. That with reckless disregard for their truth or falsity and in his desire to oust plaintiff from his job, defendant Carlton did not even bother to ask plaintiff for an explanation of these matters even though the School Board policy manual required him to advise plaintiff of his reasons and give plaintiff an opportunity to improve, but rather he maliciously sought to utilize said false accusations and testimony of defendant Kersey in order to enhance the appearance of wrongdoing by plaintiff and make the charges appear more substantial.

VIII. That defendant Kersey likewise harbored strong feelings of malice and ill will towards plaintiff due to conflicts that had arisen between the parties in the past when defendant Kersey had been an Assistant Principal on the staff of plaintiff at Riverdale High School. That said defendant Kersey had thereafter repeatedly stated that he would “get” plaintiff one way or the other and he thereupon was in concert with defendant Carlton and initiated the investigation concerning the alleged insurance check and falsely informed said investigators *108 that plaintiff had obtained the proceeds from said check and then repeated said false accusations when the charges ultimately came before the School Board at the dismissal hearing. That finally the School Board conducted a hearing on the charges brought by defendant Carlton and both defendants appeared and testified as witnesses as a result of which, at the conclusion of said hearing on July 2, 1979, the School Board voted four to three to sustain the charges and dismiss plaintiff from his job as Principal and tenured teacher.

We think these allegations describe a conspiracy participated in by Mr. Kersey to “get” the appellant through false charges supported by false testimony before the School Board. In our opinion, these allegations do not state a claim for damages against Mr. Kersey because, as a general rule, there can be no recovery of damages for false testimony or for a conspiracy to give or procure false testimony. Cooley v. Galyon, 109 Tenn. 1 , 70 S.W. 607 (1902); Felts v. Paradise, 178 Tenn. 421 , 158 S.W.2d 727 (1942); Logan’s Supermarkets, Inc., v. McCalla, 208 Tenn. 68 , 343 S.W.2d 892 (1961); Restatement (2d) of Torts, § 588.

This so-called witness immunity is stated in 31 A.L.R. 3rd, False Testimony — Civil Conspiracy, 1423, at § 2.

The general rule is that testimony given in a judicial proceeding, if pertinent thereto, is protected by an absolute privilege, even though given maliciously and with knowledge of its falsity. And accordingly, it is also the general rule that no civil action for damages lies for false testimony, or for subornation of false testimony, or for conspiracy to give or to procure false testimony.

The case of Felts v. Paradise, supra, is cited by the author of the A.L.R. article. In that case the plaintiff attempted to draw a distinction between testifying falsely and conspiring to injure another by false testimony. The court, however, refused to recognize the distinction and held that “it cannot be that a conspiracy to do a thing is actionable when the thing itself would not be.” 178 Tenn. at 424 , 158 S.W.2d at 729 . In our view, the allegations of the complaint charge the defendant Kersey with acts which are absolutely privileged under these authorities.

There are two questions remaining. The first is whether the privilege extends to proceedings before the School Board of Rutherford County. We hold that it does. Comment d to § 588 of the Restatement (2d) of Torts, states:

Judicial proceedings include all proceedings in which an officer or tribunal exercises judicial functions, as to which see Sec. 585, Comments c and f. As indicated there, an arbitration proceeding may be included.

In addition, testimony before a legislative committee has been held to be privileged under this rule. See Logan’s Supermarkets, Inc., v. McCalla, supra. Therefore, the School Board of Rutherford County is a tribunal to which the witness immunity applies.

The second question concerns an exception to the general rule quoted above. That exception is the “larger conspiracy” exception. Some courts have held that an action will lie where perjury was a means to, or a step in, the accomplishment of some larger actionable conspiracy. Robinson v. Missouri Pacific Transp. Co., 85 F.Supp. 235 (W.D.Ark.1949). In the instant case plaintiff argues that Kersey’s goal was to “get” him and maliciously damage and injure him and his reputation in the community. The discharge proceedings, it is argued, were simply a means toward that end. However, from the allegations in the complaint, it appears that Kersey committed no overt acts separate and apart from the false testimony, the false statements to investigators and the conspiratorial conversations with Carlton. If these privileged items are eliminated from consideration, there is nothing left upon which to base an action for conspiracy. In Robinson , the defendants engaged in an elaborate scheme whereby a private detective was employed to manufacture false reports about the plaintiffs. The false testimony at the discharge hearings *109 was merely the culmination of a series of tortious acts against the plaintiffs. No such acts are alleged here against the defendant Kersey. Therefore the allegations in the complaint do not bring this suit within the “larger conspiracy” exception.

For the above reasons, in addition to those set out in the original opinion, the decision of the Circuit Court of Rutherford County is affirmed and the cause is remanded. The costs are taxed to the appellant.

AFFIRMED AND REMANDED.

TODD, P. J., M. S., concurs.

CONNER, J., adheres to his position in the original opinion.