text:
    Bruce LLOYD et al., Appellants, v. James M. MYERS, Appellee.
    No. 5988.
    Court of Civil Appeals of Texas, Waco.
    Aug. 30, 1979.
    Rehearing Denied Sept. 20, 1979.

      Jack P. Martin, Jr., Burleson, Baldwin, Pate & Gibson, Dallas, for appellants.
    Randy Taylor, Dallas, for appellee.
   HALL, Justice.

Plaintiff James M. Myers brought this suit for actual and exemplary damages and for attorney’s fees against defendants Bruce Lloyd, Mrs. Clara Ziegler, and Northeast Texas Credit Corporation under alternative counts based upon (1) a common law action for malicious criminal prosecution against him by defendants, and (2) a statutory action for unreasonable collection efforts against him by defendants in violation of Article 5069-11.02, Vernon’s Tex.Civ.St., which prohibits a debt collector from collecting or attempting to collect a debt created primarily for personal, family, or household purposes by coercion or attempts to coerce which “employ any of the following practices: (b) accusing falsely . . . any person of fraud or any other crime.” After the case was tried to a jury, judgment was rendered awarding plaintiff damages totaling $26,000.00. Defendants appeal. We affirm the judgment.

The gist of plaintiff’s detailed petition was that defendant Lloyd is president of defendant Credit Corporation and defendant Ziegler is an employee of the Corporation; that while acting for the corporation Lloyd and Ziegler maliciously and without probable cause made false statements to the County Attorney of Wood County, Texas, charging plaintiff with a criminal offense, and solicited and procured the presentment of the charge to the grand jury of Wood County and thereby caused the return of an indictment by the grand jury charging plaintiff with the offense of theft of property over the value of $200.00 and the issuance of legal process under the indictment; that defendants’ actions were willfully and maliciously done for the sole purpose of illegally collecting and extorting the payment of a debt in the nature of a loan previously made by defendant corporation to plaintiff which was secured by several items of personal property owned by plaintiff and in plaintiff’s possession; that plaintiff was arrested under the indictment and made bail to gain his release; that he was not guilty of the charge of theft made against him; and that the indictment was eventually dismissed on motion of the State’s attorney for want of sufficient evidence. Plaintiff sought recovery of $500.00 expended by him for his bail bond fee under the indictment, $10,000.00 for other actual damages, $10,000.00 for exemplary damages, $1,500.00 attorney’s fees for representation under the indictment, and $4,250.00 attorney’s fees for the trial of this case and on appeal if an appeal was taken.

Defendants answered with a general denial.

Prior to the submission of the case to the jury, the parties entered into the following stipulation: “In the event the Plaintiff is ultimately entitled to the entry of a decree entitling him to recover damages from the Defendants, or any of them, that Plaintiff will be entitled to recover damages for the expenses resulting from the criminal prosecution in question in the amount of fifteen hundred dollars attorney’s fees and five hundred dollars bond fee, and for reasonable attorney’s fees in the instant case of two thousand dollars for the trial of this case and an additional amount of one thousand dollars in the event an appeal is perfected in this case.”

The jury made the following answers to the special issues:

No. 1. Pound that the criminal proceeding was terminated in plaintiff’s favor.
No. 2. Found that plaintiff was innocent of the charge of theft that was brought against him.
The following instruction was given to the jury in connection with Special Issue No. 2: “ ‘THEFT’ means the fraudulent taking of corporeal personal property belonging to another from his possession or from the possession of some person holding it for him, without his consent, with intent to deprive the owner of its value and to appropriate it to the use or benefit of the person taking. You are further instructed that the property need not be removed from the presence nor from the premises of the owner to constitute theft.”
No. 3. Found that there was no probable cause for the criminal proceeding initiated by defendant Ziegler that was brought against plaintiff.
The following instruction was given to the jury in connection with Special Issue No. 3: “‘PROBABLE CAUSE’ means the existence of such facts and circumstances as would excite the belief in a person of a reasonable mind, acting on the facts or circumstances within his knowledge at the time, that James M. Myers was guilty of a crime. You are further instructed that a person filing a criminal complaint does so upon probable cause if that person, in good faith, makes a full and fair statement of facts to the prosecuting attorney who thereafter commences the criminal proceeding.”
No. 4. Found that defendant Credit Corporation, “through Clara Ziegler, after filing the criminal complaint in question, continued to prosecute the criminal action against plaintiff in order to compel plaintiff to reimburse it for the amount of the loan.”
No. 5. Found that defendant Ziegler acted with malice when she initiated the criminal charge against plaintiff.
No. 6. Found that defendant Lloyd acted with malice in directing Ziegler to initiate a criminal charge against plaintiff.
The following instruction was given to the jury in connection with Special Issues Nos. 5 and 6: “ ‘MALICE’ means ill will and bad or evil motive or such gross indifference to the rights of another as amounts to a willful or wanton act done intentionally and without just cause or excuse.”
No. 7. Found that Ziegler falsely accused plaintiff of committing a crime in an attempt to collect the debt in question when she initiated the criminal charge against him.
No. 8. Found that Ziegler was engaged in the service of defendant Credit Corporation in the furtherance of its business when she initiated the criminal charge against plaintiff.
No. 9. Found that Ziegler represented defendant Credit Corporation “in such manner that her actions would be regarded as the actions of said corporation itself as distinguished from the actions of a mere employee” when she initiated the criminal charge against plaintiff.
No. 10. Found that plaintiff should be awarded the following actual damages “which resulted from the occurrence in question”:
a. $2,500.00 for mental anguish, humiliation, and embarrassment.
b. $7,500.00 for damage to reputation and character.
c. $1,500.00 for loss of earnings in the past.
d. $3,500.00 for loss of earnings in the future.
Nos. 11, 12, and 13. Found that plaintiff should be awarded the following exemplary damages: $3,000.00 against Ziegler, $3,000.00 against Lloyd, and $5,000.00 against the Credit Corporation.
The following instruction was given to the jury in connection with Special Issues Nos. 11, 12, and 13: “ ‘EXEMPLARY DAMAGES’ means an amount which you may in your discretion award as an example to others and as a penalty or by way of punishment in addition to any amount which may have been found by you as actual damages.”

Judgment was rendered on the parties’ stipulation and the verdict that plaintiff recover $15,000.00 from defendants jointly and severally, and that additionally and separately plaintiff recover $3,000.00 exemplary damages from Lloyd, $3,000.00 exemplary damages from Ziegler, and $5,000.00 from the Credit Corporation.

Defendants’ complaints for reversal relate to the jury’s answers to only two special issues: They contend that the jury’s findings that Ziegler acted without probable cause (special issue no. 3) and with malice (special issue no. 5) when she initiated the criminal charge against plaintiff are not supported by any evidence, and, alternatively, that those findings are against the great weight and preponderance of the evidence.

We may look only to the evidence and the inferences therefrom favorable to the finding in reviewing a “no evidence” complaint; and we must weigh all of the evidence in reviewing a question of the “great weight and preponderance” of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

There is proof of the following facts. Defendant Credit Corporation’s office is in Wood County. Defendant Lloyd is its president and manager. Defendant Ziegler is Lloyd’s daughter and acts with him in the management of the Credit Corporation’s business, including collections. In October, 1973, dealing with Lloyd, plaintiff and his wife Carol Myers borrowed $298.25 from the Credit Corporation as a personal loan and executed a promissory note for $432.00 payable in 24 monthly installments of $18.00, beginning in November, 1974. Plaintiff and his wife had two small children. The money was borrowed by them for household expenses. The loan was secured by a security agreement executed by plaintiffs on a television set, a refrigerator, a clothes washer and a clothes dryer. This collateral was owned by plaintiffs and was fully paid for. It was not purchased from defendant Credit Corporation, and it had never been owned by defendant Lloyd. Ziegler and Lloyd knew that. At the time the loan was made, plaintiffs lived in Franklin County. The collateral merchandise was in Franklin County with them, and it had never been in Wood County. Defendants knew the collateral was located in Franklin County, and they filed the security agreement there. In April, 1974, plaintiffs moved to the City of Petty, in Lamar County. Prior to moving, Mrs. Myers went to defendants’ office and received permission, probably from Lloyd, to make the move with the collateral. When he moved to Petty, plaintiff changed jobs and was not making his expenses, and he and Mrs. Myers became delinquent on their payments. In June, 1974, plaintiff received the following letter, addressed to him at Petty, from Lloyd: “Dear James. If you will continue to send me $18.00 a week, it will be okay, but if you fail to make a payment, I will have no other choice but to pick up your furniture.” In late summer, 1974, plaintiff and Mrs. Myers moved to Dallas County. Before they moved Mrs. Myers notified defendants of the intended move; and after they moved, she notified defendants of their address. She also left their forwarding address with the postal authorities in the City of Petty. Plaintiff changed jobs several times in Dallas County, never earning more than $500.00 per month gross pay. He and Mrs. Myers made payments on the loan to the best of their ability; and although they continued to be delinquent, they were never behind more than two or three payments.

In January, 1975, Ziegler, with Lloyd’s knowledge and' “insistence” according to him, went to Belker Paschall the county attorney of Wood County and discussed with him the delinquent status of plaintiff’s loan. This was not an uncommon practice by defendants. Lloyd testified: “Of course, to stay in business we have to try to collect our money. I don’t do a very good job. But we have had to file on people ever since I’ve been in business.” Paschall was responsible for the prosecution of criminal cases in Wood County, including felonies. He said that after talking with Ziegler, “I thought that if there was any law that had been violated, it had been a removal of mortgaged property, but on the other hand, as I pointed out to her, I thought probably it was just a civil case. That was my advice to her.” After Ziegler’s visit, Paschall mailed the following letter to plaintiff, in January, 1975, addressed to plaintiff at Petty, Texas:

“Dear Mr. Myers:
Mrs. Clara Ziegler, with Northeast Texas Credit Corporation of Winnsboro, Texas, has advised this office that she has contacted you several times in regard to a television set, refrigerator, and dryer which you purchased from Northeast Texas Credit. Mrs. Ziegler has informed us that unless the merchandise is returned or the balance paid by Monday, January 20, she will proceed with the filing of criminal charges against you. Your cooperation with us in this matter will be appreciated.”

The letter was forwarded to plaintiff in Dallas by the postal authorities. There is evidence that defendants had knowledge of the letter, including evidence that Ziegler later contacted Paschall and asked him if he had received payment from plaintiff.

In February, 1975, apparently by arrangement through Paschall, Ziegler testified before the grand jury of Wood County. Thereafter, the grand jury indicted plaintiff for felony theft “in Wood County” of the television set, the refrigerator, and the washer and dryer from defendant Lloyd “the owner thereof.” It was alleged in the indictment that on or about April 16, 1974, plaintiff, in Wood County, “did then and there unlawfully exercise control over” the pledged collateral “without the effective consent of Bruce Lloyd, the owner thereof, with intent to deprive said owner of said property.” An arrest warrant for plaintiff was issued on the indictment; and plaintiff was arrested on the job in Dallas, in March, 1975. He was placed in jail, and gained his release twelve hours later by posting a corporate bail bond. Eventually, in December, 1975, the prosecution was dismissed upon motion by Paschall, and the finding of the court, that the allegations in the indictment were riot supported by sufficient evidence.

Ziegler testified that based upon Pasc-hall’s statements to her on her visit to his office, she went to the grand jury a month later believing plaintiff had committed the offense of “removing mortgaged property” by removing the collateral from Franklin County, and that she did not seek the theft indictment.

At the time of the return of the indictment, Paschall had been practicing law for twenty years, and he had been county attorney since 1969. He often wrote collection letters for the merchants of Wood County (he said, “I do it for everybody”), and he had written such letters for defendants prior to the one he wrote to plaintiff. He said the statements in his letter to plaintiff were based upon the “circumstances and events” related to him by Ziegler on her first visit, and that what he set forth in the letter was a “fair summary” of the information he received from her. He detailed his normal procedure with grand juries and the return of indictments, and stated that he had no reason to believe that procedure was not followed in the instant case. The effect of his testimony was this: He was present when Ziegler testified before the grand jury. Based upon the facts of her testimony, he advised the grand jury that plaintiff was guilty of the offense of theft for which he was indicted, and the grand jury returned the indictment. He said that he did his “dead level best to advise the grand jury of what [he] knew the law was”; that he did his “dead level best to advise them as to what law, in [his] opinion, James Myers had violated”; and that “based on that advice, they returned an indictment against James Myers alleging that on or about the 16th day of April, 1974, he stole from the owner, Bruce Lloyd, one Zenith color television set, one RCA refrigerator, one RCA washer and one RCA dryer.” He testified that prior to the time of dismissal he was “never made aware” of the fact “that Bruce Lloyd never owned that property.” The evidence shows that Lloyd learned that plaintiff had been indicted for theft about 30 days after the indictment was returned by the grand jury, and that defendants thereafter unsuccessfully used the theft charge against plaintiff in an attempt to force him to pay the balance of his account. Specifically, prior to the dismissal of the indictment, Ziegler executed an affidavit for Paschall in which she stated that “complainant approves, consents and requests that said cause be dismissed” upon payment by plaintiff of the balance due on his loan. Plaintiff later paid the balance but his attorney in the criminal case, James D. Pickett, testified that plaintiff’s payment was not a condition of the dismissal, that plaintiff never promised to pay in exchange for the dismissal, and that the dismissal was based solely upon the fact that Paschall learned through Pickett that plaintiff had not committed the offense of theft of Lloyd’s property.

The jury’s finding in their answer to special issue no. 7 that Ziegler falsely accused plaintiff of committing a crime in an attempt to collect the debt in question “when she initiated the criminal charge against him” is not challenged by defendants. We agree with plaintiff that the finding establishes his cause of action based upon unreasonable collection efforts by defendants under the provisions of Article 5069 — 11.02(b), supra. The right to exemplary damages when a tort is committed willfully, maliciously or fraudulently is one of general application recognized by the common law; and it is not dependent upon statute. Briggs v. Rodriguez, 236 S.W.2d 510, 515 (Tex.Civ.App.—San Antonio 1951, writ ref’d n. r. e.). Accordingly, if defendants acted maliciously in violation of the statute, then plaintiff is entitled to the exemplary damages awarded by the jury. Lediseo Financial Services, Inc. v. Viracola, 533 S.W.2d 951, 957 (Tex.Civ.App.— Texarkana 1976, no writ). As we stated earlier, only the finding of malice against Ziegler is argued by defendants.

In order to sustain a suit for malicious prosecution, both malice and probable cause must combine. Where want of probable cause is first shown, then malice may be established by proof that the defendant’s sole purpose for commencing the prosecution was to subserve his private interests. But, no matter what evidence of malice may be introduced, the suit must fail if the plaintiff does not establish want of probable cause. Holt v. Follett, 65 Tex. 550, 554 (1886); Gabel v. Weisensee, 49 Tex. 131, 139 (1878).

Probable cause is shown by proof that the complainant, in good faith, makes a full and fair statement of the facts as known to him to the prosecuting officer, and the criminal charge is thereafter filed or caused to be filed by such officer. Sebastian v. Cheney, 86 Tex. 497, 25 S.W. 691, 693 (1894); Ada Oil Company v. Dillaberry, 440 S.W.2d 902, 910 (Tex.Civ.App. [14th Dist.] 1969, writ dism’d). Defendants say that rule is applicable here, arguing there is no evidence that the indictment in question was not based upon a fair statement by Ziegler to Paschall and the grand jury of the circumstances and events Surrounding plaintiff’s loan account. We disagree with that argument. The particulars of Ziegler’s testimony before the grand jury is not a part of the proof. It is reasonably inferable from Paschall’s testimony that by the time Ziegler appeared before the grand jury she was claiming that the collateral for plaintiff’s loan was originally owned by Lloyd or the Credit Corporation in Wood County, and that plaintiff had unlawfully used the loan to gain possession and control of the pledged items from Lloyd or the company; and that in her testimony before the grand jury she sought the theft indictment. Those inferences are strengthened by the evidence that after defendants had learned plaintiff was in fact indicted for theft, they attempted (by Ziegler’s affidavit to Pasc-hall) to use the charge to collect their account. The evidence also establishes that when Ziegler sought the indictment she knew that plaintiff had not stolen the property, and that she brought the charge solely for the purpose of collecting the debt.

The evidence we have recited is legally sufficient to support the jury’s determinations that Ziegler initiated the charge of theft against plaintiff, and that she acted without probable cause and with malice.

There is other proof which would have supported findings favorable to plaintiff on the issues in question, which we need not detail. We hold the evidence is factually sufficient to support the jury’s findings.

Defendants’ points and contentions are overruled. The judgment is affirmed.


source: Caselaw Access Project

author: STEPHENSON, Justice. STERNBERG, Justice,

license: Public Domain

text:
    CENTRAL PARKING SYSTEM, Movant, v. Stephen H. MILLER, Respondent.
    Supreme Court of Kentucky.
    July 3, 1979.
    Kenneth F. Osborne, Louisville, for mov-ant.
    F. Larkin Fore, Louisville, for respondent.
    Louis R. Straub, Louisville, amicus curiae.
   STEPHENSON, Justice.

This case arose out of the thefts of wire wheels from Miller’s car. The car was parked in a large self-service parking garage owned by Central Parking System. The parking garage is a self-service type operation where a ticket machine automatically gives a ticket to a driver before he enters the garage. The driver then parks in a place of his choice and leaves his car, taking his keys with him. The only employ- • ee on duty is the attendant who collects the money from the driver upon exiting. Miller parked his car in movant’s garage following the above procedure on the three occasions when his wheels were stolen. After the thefts, Miller filed suit against Central Parking. The Jefferson Quarterly Court entered a judgment of $838.20 in favor of Miller. The . Jefferson Circuit Court affirmed, basing its decision on the quarterly court’s findings of fact and conclusions of law. The Court of Appeals affirmed. We reverse.

The Court of Appeals held that Central Parking was a bailee, relying on Blackburn v. Depoyster, 209 Ky. 105, 272 S.W. 398 (1925). Blackburn held that the garage keeper was a bailee for hire who was under a legal obligation to exercise such ordinary care as a man of reasonable prudence and discretion would exercise under like circumstances with respect to his own property. The facts in Blackburn were that an agreement existed whereby Blackburn was allowed to park in Depoyster’s garage. On the night of the theft, the owner was not present when Blackburn parked his car in the garage. The court in holding that the garage keeper was a bailee for hire stated that the duty imposed on the garage keeper was similar to that imposed on a liveryman.

The standards that were applicable to a liveryman should not be applicable to a parking garage where hundreds of cars are parked daily. While it may have been that these standards were applicable to a parking garage in 1925, it is not practical to apply them to garages of today. There are more automobiles in existence today, more and larger parking facilities and easier access to these facilities as a result of automatic ticket machines and other technological advances. No longer is entry into a lot or garage and the parking of a car dependent upon the presence of the owner or an attendant or an express agreement between the garage and car owner. For these reasons we hold that Blackburn, supra, is no longer applicable and that the facts in the case at bar do not create a bailment.

Therefore, Central Parking is not liable to Miller in the absence of negligence. This same conclusion, based on similar facts, was reached in Ellish v. Airport Parking Co. of America, Inc., 42 A.D.2d 174, 345 N.Y.S.2d 650, app. dism. 33 N.Y.2d 764, 350 N.Y.S.2d 411, 305 N.E.2d 490 (Ct.App., 1973), aff’d, 34 N.Y.2d 882, 359 N.Y.S.2d 280, 316 N.E.2d 715 (Ct.App., 1974). Although this case involved the theft of an automobile from an airport’s parking lot, the parking procedure was exactly the same as in this case. This court finds the reasoning in Ellish, supra, persuasive:

We are of the opinion that liability should not be determined by ancient labels and characteristics not connected with present-day practices. It is one thing for the owner of a livery stable to have to explain the disappearance of a horse from its stall to the owner, but it is not at all the same for the operator of a parking lot at a busy airport to have to explain the disappearance from the lot of one of the thousands of cars parked there daily. Unless proof of negligence is present on the part of the operator of the lot, the risk of loss must be assumed by the owner of the automobile.

The effect of this holding is that the owner of the car must offer proof of specific acts of negligence by the operator or his employees if he is to recover for loss or damage. 38 Am.Jur.2d, Garages, etc., § 71. The trial court made no finding that Central Parking was negligent, holding only that there was a bailment created and Miller had met his burden of proof. However, as a result of our holding Miller must prove specific acts of negligence on the part of Central Parking in order to recover for his stolen wheels. In the absence of such evidence, Central Parking is not liable.

In conclusion when a person parks his automobile in a garage by receiving a ticket from an automated machine, choosing his own space and taking his keys with him, the garage is not a bailee and is not liable in the absence of negligence on its part.

The judgment of the circuit court and the opinion of the Court of Appeals are reversed.

All concur except STERNBERG, J., who dissents.

STERNBERG, Justice,

dissenting.

The Central Parking System, movant herein, operates a six-story, self-parking garage adjoining the Legal Arts Building, Seventh and Market Streets, Louisville, Kentucky. Entrance is made through a designated opening in the building and, as the vehicle enters, an automatic ticket-dispensing machine provides a “ticket” which indicates the time and date the vehicle entered the garage. The driver may then select a parking space of his own choosing; lock his car, take his keys with him, and then exit by a doorway on each floor of the garage directly into the office building, or the car owner may exit on foot by walking out of the automobile entrance or exit way. As the automobile exits, it passes an attendant or a cashier’s booth, at which point the driver pays the cashier a fee computed on the time the car was parked. The garage is patrolled three times daily by garage personnel.

In the instant case, the respondent, Stephen H. Miller, regularly parked his car in movant’s garage and walked into the office building where he worked. On three separate occasions expensive wire wheels were stolen off of respondent’s car. The movant denied liability for the theft of the wheels, and respondent filed suit against the garage in the Jefferson County Quarterly Court, where he recovered judgment in the sum of $838.20. The case was appealed to the Jefferson Circuit Court, where, based upon the record accumulated in the Quarterly Court, an award was made to respondent against movant in the sum of $854.97. On appeal to the Court of Appeals of Kentucky, the judgment of the Jefferson Circuit Court was affirmed. Movant’s motion for discretionary review was granted and this court reverses. This writer dissents.

The issue is whether a contract of bailment is to be implied from the relationship between the parties. This court has stated that bailment,'

“ ‘. . . may be said to import a delivery of personal property by one person to another in trust for a specific purpose, with a contract, expressed or implied, that the trust shall be faithfully executed and the property returned or duly accounted for when the specific purpose is accomplished or kept, until bailor claims it.’ Jensen & Eagle Ore. Co., 47 Colo. 306,107 P. 259, 33 L.R.A. (N.S.) 681, 19 Ann.Cas. 519. . . .” Commonwealth v. Polk, 256 Ky. 100, 75 S.W.2d 761 (1934).

We have imposed the duty on the bailee “to exercise the utmost good faith, and . . . diligence in the performance of his duties.” Id., 75 S.W.2d p. 764.

In order to determine whether a “bailment” relationship exists, the reasonable expectations of the parties are controlling. In other words, what protection was the automobile owner in this case entitled to believe existed under the individual circumstances of this parking arrangement? I believe that the automobile owner was entitled under the circumstances to expect that reasonable care would be utilized to prevent tampering with his automobile.

I cannot buy the argument made by the movant that to follow the reasoning of Blackburn v. Depoyster, 209 Ky. 105, 272 S.W. 398 (1925), puts us in the horse and buggy age. As a matter of fact, vehicles, by reason of the large numbers and limited public parking spaces, need more attention than in the good old horse and buggy days of 1925. Depoyster does not constitute the operator of a parking facility as a guarantor of the safety of the parking vehicle; it merely requires the operator of the parking lot “to exercise ordinary care to prevent such vehicles being stolen and carried away from the garage while in his keeping, and, if he fails to exercise such care, he is liable for the loss.”

Counsel for the movant has taken solace in KRS 189.710. A casual reading of that statute manifests that it is not applicable. It applies to a situation where the keys are required to be left with the automobile and, under those conditions, fixes liability “for any loss or damage to such automobiles except such as is caused by persons or forces beyond the control of the operator and his employes.” This statute does not intend to nor does it create or suggest a liability of a parking lot operator under conditions not encompassed by the statute. In other words, the statute does not affect the common law liability of the parking lot operator. This liability is considered and well stated in Depoyster.

In Parking Management, Inc. v. Gilder, (D.C.App.) 343 A.2d 51 (1975), the Court of Appeals of the District of Columbia considered circumstances similar to the instant case. In the course of the opinion it is written:

“The car owner was entitled under the circumstances to expect that reasonable care would be utilized to prevent tampering with his auto;
While there has been a tendency to consider a showing of a ‘park and lock’, arrangement as creating a lease agreement we doubt the sophistication of this doctrine. Unlike the usual tenant of realty, the car owner has utterly no control of the so-called leased space as he is by definition always absent and helpless to protect his property, for all practical purposes. There is in most instances no fixed term, the duration of the parking being usually at the option of the car owner. Lastly, the car owner may not remove the car until the parking fee is paid.
The owner of the car cannot observe and protect the car since he is always absent from it. It is the operator, not the car owner, who is in a position to have the superior knowledge.
We do not consider the law of landlord-tenant to be an apt doctrine to apply in such cases; and we think the time has come to reject that outmoded theory with its unrealistic confines in this type of application. Nor do we think mechanical labels should be applied to the relationship in ‘park and lock’ arrangements.
On the facts here presented, we believe an operator may be required to exercise reasonable care to avoid malicious mischief to, or theft of, vehicles parked on a commercial parking lot (a going concern), even though the arrangement was ‘park and lock.’ The car owner was necessarily absent when the car damage occurred and should not be disadvantaged as a matter of law because of this reality. We do not feel that a car owner may fairly be regarded as a virtual stranger to the lot operator except for the payment of a parking fee.
The circumstances here were sufficient to create an implied duty of reasonable care by the lot operator to protect the car from malicious mischief, and we conclude the finding by the trial court that a violation of that duty occurred was not clearly erroneous. . . . ”

Scruggs v. Dennis, Tenn., 440 S.W.2d 20 (1969), presents a factual situation similar to those presented in the instant case. Scruggs had regularly parked his car in the respondent’s parking garage. On March 6, 1967, when Scruggs returned to receive his car, it was not to be found. Two weeks later the car was recovered by the police. The question presented was whether a bailment is to be implied from the relationship between the parties. The trial court held in the affirmative and entered judgment for Scruggs against the parking garage for $921.65. This judgment was reversed by the Court of Appeals of Tennessee. On appeál to the Supreme Court of Tennessee, the action of the Court of Appeals was reversed and the judgment of the trial court was affirmed. The case turned upon the question of whether a bailment is to be implied from the relationship between the parties. The Supreme Court said:

“ ‘In the instant case when complainant turned her automobile over to defendant’s servant for safekeeping, the bailment for hire contract was impliedly created, defendant bailee promising to redeliver the vehicle in reasonably good condition on the demand of complainant, or to her order, and to no one else. To do that was just as much a part of the contract of bailment as if it had been solemnly written out and signed by both parties.’
Indeed, it is our view that to embrace the theory of respondent garage in this case would be tantamount to nothing more or less than condonation of a reduction of storage operation for hire to a subterfuge.”

I would hold that even though this is a “self-parking” or “park and lock” arrangement, the automobile owner was entitled to reasonably expect that the garage operator would utilize reasonable care to prevent tampering with the automobile. In accordance with such circumstances, the automobile owner and garage operator have impliedly entered into a contract of bailment, which was breached upon the failure of the garage operator to return the bailed automobile in as good condition as that in which it was left. This is not to say that the garage operator must be all things to all persons who occupy the parking garage. I would hold that the relationship of bailor and bailee exists and that the keeper of the parking lot must exercise the care which an ordinary prudent person would exercise under like and similar circumstances for the preservation of similar property. Ordinarily, this is a jury question and the disposition of the issue may depend upon the facts and circumstances in each case. I believe each case must stand on its own bottom, and in the instant case a jury question is made as to whether the movant, operator of the parking garage, exercised ordinary care.


text:
    COMMONWEALTH of Kentucky, Movant, v. Billy Ray GULLY and Terry Lee Gully, Respondents.
    Supreme Court of Kentucky.
    Sept. 18, 1979.
    Robert F. Stephens, Atty. Gen., C. David Clauss, Asst. Atty. Gen., Frankfort, for movant.
    Jack Emory Farley, Public Advocate, Edward C. Monahan, Asst. Public Advocate, Frankfort, Terrence R. Fitzgerald, Louisville, for respondents.
   OPINION AND ORDER

The motion of the Commonwealth of Kentucky for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered February 23, 1979, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of Kentucky v. Whorton, - U.S. -; 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979), and this court’s opinion in Whorton v. Commonwealth, Ky., 585 S.W.2d 388 (1979).

All concur.


author: WILHOIT, Judge.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Willie APPLEBY and James Lofton, Appellees.
    Court of Appeals of Kentucky.
    Nov. 3, 1978.
    As Modified Nov. 10, 1978.

      Paul W. Richwalsky, Jr., First Asst. Commonwealth Atty., Louisville, Robert F. Stephens, Atty. Gen., George Geoghegan, III, Asst. Atty. Gen., Frankfort, for appellant.
    David A. Lambertus, Louisville, Richard L. Receveur, Asst. Public Defender, Louisville, for appellees.
    Before MARTIN, C. J., and COOPER and WILHOIT, JJ.
   WILHOIT, Judge.

This is an interlocutory appeal by the Commonwealth from a pre-trial order of the Jefferson Circuit Court suppressing evidence seized as the result of a search conducted by Kentucky and Indiana police in New Albany, Indiana. We reverse.

The appellees, Appleby and Lofton, stand charged by the Jefferson County Grand Jury with murder, kidnapping (capital offense), first-degree robbery, and the felony of theft by unlawful taking. The murder indictment has been amended to charge a capital offense. Prior to trial, the court held a hearing to dispose of pending motions in this case, including defense motions to exclude from evidence a gun, a wallet and its contents, an industrial police badge, and some clothing which had been seized by police officers after the search of a house trailer located in New Albany, Indiana. The search , had been made pursuant to a search warrant issued by a Floyd County, Indiana, circuit judge. Nevertheless, the trial judge concluded that the search had been illegal because the affidavit given to obtain the search warrant did not describe the premises to be searched with “Constitutional particularity.” The trial judge ordered the evidence suppressed. From this order the Commonwealth appeals.

The affidavit for the search warrant and the warrant itself described the premises to be searched as:

[A] pale green house trailer, approximately 40 ft. to 50 ft. long parked on the southwest corner of a lot 100 ft. south of Grantline Road near a house with green siding and white trim designated as 2114 Grantline Road.

Neither described the city, county, or state in which the trailer was located, although the caption of both contained the following:

State of Indiana County of Floyd

It was the absence of any description of a city, county, or state from the body of the affidavit where the premises were described which led the trial judge to his conclusion that the premises were not described sufficiently to meet constitutional requirements.

The affidavit made to secure the search warrant was given by a detective of the Louisville, Kentucky, police department. While the detective was in the process of completing the affidavit at the New Albany, Indiana, police headquarters, where he was being assisted by a legal advisor to the New Albany police, information was received by the officers there that police officers who had already “staked out” the trailer were being fired upon. The detective, accompanied by other officers, immediately went to the location of the trailer where Appleby and Lofton were captured and placed under arrest. Following this, the detective returned to the headquarters and completed the affidavit. In the company of New Albany officers, he then went before a circuit judge of Floyd County, in which New Albany is located, and the search warrant was issued. The warrant was actually served by two New Albany policemen but the trailer was searched by both New Albany and Louisville officers. The evidence found there was discovered by Louisville policemen who promptly gave it to the New Albany officers present who seized it and later turned over the evidence to Louisville police.

Apparently there was only one Grantline Road in the jurisdiction of the circuit judge who issued the warrant and the judge was familiar with the area in which the trailer was located.

Both the fourth amendment to the United States Constitution and article I section 11 of the Indiana Constitution require that the affidavit given to secure a search warrant and the warrant itself particularly describe the place to be searched. Section 10 of the Kentucky Constitution requires that the place be described “as nearly as may be.” This requirement of the Federal Constitution has been interpreted to mandate a description sufficient to enable an officer executing the warrant to locate and identify the premises with reasonable effort. Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925); United States v. Freeman, 532 F.2d 1098 (7th Cir. 1976). The Indiana Constitution requires a description which specifically describes the place to be searched so as to leave no discretion to the officer executing the warrant as to what place he is to search. Brown v. State, 239 Ind. 358, 157 N.E.2d 174 (1959); Le Juste v. State, 197 Ind. 327, 150 N.E. 791 (1926); Flum v. State, 193 Ind. 585, 141 N.E. 353 (1923). Our own constitution requires a description of such certainty as to reasonably identify the premises to be searched, McMahan’s Adm’x v. Draffen, 242 Ky. 785, 47 S.W.2d 716 (1932); Taulbee v. Commonwealth, Ky., 465 S.W.2d 51 (1971); and to enable the magistrate issuing the warrant to determine that the property to be searched is within his jurisdiction. Baker v. Commonwealth, 311 Ky. 93, 223 S.W.2d 590 (1949).

The evils sought to be avoided by these provisions of all three constitutions are the indiscriminate and general search so often experienced by our colonial forbears and the needless invasion of privacy rights through the careless search of the wrong premises. We believe that under all of the circumstances surrounding the search of the trailer, the constitutional purposes and requirements were satisfied and the evidence thus seized should not be excluded.

The Louisville detective who made the affidavit had actually been to the trailer by the time his affidavit had been completed, as had the New Albany policemen who served the warrant. The events of the day could have left little question in their minds as to the location of the trailer they intended to search. The judge who issued the warrant knew there was only one Grantline Road within his jurisdiction and he was familiar with the area in which the trailer was located. The description in the affidavit and warrant, aside from failing to name a city, county, or state, was quite specific and left no discretion in the officers as to what premises were to be searched and this description was certainly sufficient to enable the officers to find the trailer with reasonable effort somewhere within their jurisdiction and that of the issuing judge, even if they had not already been there a short time before.

Appleby and Lofton argue that in considering whether the description is sufficient, a court may not look outside of the information contained in the affidavit. In support of this argument they cite Ruth v. Commonwealth, Ky., 298 S.W.2d 300 (1957), and Ashley v. State, 251 Ind. 359, 241 N.E.2d 264 (1968). Both of these cases relate to the establishment of probable cause for a search, not the sufficiency of the description. Courts have long recognized that the sufficiency of a description of property to be searched is a relative thing often dependent on facts outside of those contained in the affidavit or warrant itself. For example, whether the premises are located in a rural or urban area may have a bearing. Wellman v. Commonwealth, 219 Ky. 323, 292 S.W. 779 (1927). Whether different parts of the premises are occupied by different people has been considered, as has whether more than one residence is located on the described property. Thompson v. State, 198 Ind. 496, 154 N.E. 278 (1926); Muleff v. State, 198 Ind. 686, 154 N.E. 670 (1927). In Le Juste v. State, supra, deciding the sufficiency of a description, the court considered extraneous evidence of whether there was more than one gray one-and-one-half story house on a certain street. Additionally, facts known to the officer on whose affidavit the warrant is issued as well as the knowledge of the executing officer have been found relevant. Cf. Wellman v. Commonwealth, supra; United States v. Goodman, 312 F.Supp. 556 (D.C.Ind.1970), and cases cited at 68 Am. Jur.2d Searches and Seizures § 74.

Under the circumstances, we also believe the search warrant substantially complied with the statutory form set out in the Indiana Code (35-1 — 6-3).

Appleby and Lofton contend that the participation of Louisville police officers in the search of the trailer renders the search invalid under Indiana statutory law because in Indiana these policemen were no more than private citizens. The warrant was served by New Albany policemen and the evidence was seized by them. They were present during the entire search. Under such circumstances it is immaterial that the Louisville officers assisted in the search. Williams v. State, 95 Okl.Crim. 131, 240 P.2d 1132, 31 A.L.R.2d 851 (1952).

Appleby and Lofton also argue that the New Albany officers failed to make a proper return on the warrant as required by Indiana statute and this should render the evidence seized inadmissible. We do not believe this failure, if the search were reasonable, brings the exclusionary rule into play. Cf. Crossland v. State, Okl.Crim., 266 P.2d 649 (1954).

The order of the trial court is reversed.

All concur.

      . This evidence was introduced by the Commonwealth in the form of an avowal by the Commonwealth Attorney over objection by the defense, but no ruling was made by the court on the objection nor did the defense request a ruling.


author: HOWARD, Judge.

text:
    KENTUCKY COMMISSION ON HUMAN RIGHTS, H. Gene Baldridge, Ewing P. Benberry, Mrs. Betty Fleischaker, James E. Gayheart, Mrs. Brenda Harris, Floyd E. Hurley, Jr., Edmund P. Karem, Ricardo Sisney, Caldwell Smith, Sr., Dr. John Wallace, Mrs. Willis Weatherford, Individual Members of the Kentucky Commission on Human Rights, Galen Martin, Executive Director, Kentucky Commission on Human Rights, Marta Pearson, and Lupe Cota, Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF JUSTICE, BUREAU OF STATE POLICE, State Police Personnel Board, and Kenneth E. Brandenburgh, Commissioner, Bureau of State Police, Appellees.
    Court of Appeals of Kentucky.
    March 23, 1979.
    Rehearing Denied May 18, 1979.
    Discretionary Review Denied Oct. 2, 1979.

      Galen A. Martin, Thomas A. Ebendorf, Samuel H. DeShazer, Kentucky Commission on Human Rights, Louisville, for appellants.
    James M. Baker, William G. Mullins, Bureau of State Police, Dept, of Justice, Frankfort, for appellees.
    Before HOWARD, REYNOLDS and WINTERSHEIMER, JJ.
   HOWARD, Judge.

This appeal involves the question of whether the minimum height requirement of 5' 6", a necessary qualification for employment as a Kentucky state trooper, is an unlawful practice of sex discrimination prohibited by KRS 344.040, the Kentucky Civil Rights Act.

Marta Pearson, a female, measures 5' 5¼" in height. Lupe Cota, a female, measures 5' 5¾" in height. Both women were otherwise qualified for employment as a state trooper, but were rejected because they did not meet the minimum height requirement. Each of the women filed a discrimination complaint with the Kentucky Commission on Human Rights (hereinafter referred to as the Commission).

After a hearing, the Commission determined that the Kentucky Bureau of State Police had discriminated against Pearson and Cota by using an employment restriction, which, while facially neutral, was discriminatory on the basis of sex and therefore violated KRS 344.040. An appeal was taken to the Franklin Circuit Court. The Franklin Circuit Court held that the Bureau of State Police established that the height requirement was job-related and reversed the Commission’s finding that the requirement was discriminatory.

The Kentucky statute is virtually identical to the corresponding section of the U.S. Civil Rights Act of 1964, codified in 42 U.S.C. § 2000e-2(a). Therefore, United States Supreme Court decisions regarding the federal provision are most persuasive, if not controlling, in interpreting the Kentucky statute. Kentucky Com’n v. Com., Dept. for Human Resources, Ky.App., 564 S.W.2d 38 (1978).

There seems to be no dispute between the parties as to the three-part test used in determining whether a facially neutral requirement, such as this minimum height requirement, operates, in fact, to exclude women from employment opportunities and is therefore discriminatory. To establish a prima facie case of discrimination, a plaintiff need only show that the requirement in question disproportionately excludes a certain class of applicants from employment. Once it is shown that the requirement is discriminatory in effect, the employer must meet “the burden of showing that any given requirement [has] . a manifest relationship to the employment in question.” Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). If the employer can prove the requirements are job-related, the plaintiff must show that there are other selection devices, without a similar discriminatory effect, which would likewise “serve the employer’s legitimate interest in ‘efficient and trustworthy workmanship.’ ” Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975) quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

These cases were subsequently referred to by the Supreme Court in Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). One of the issues in Dothard, supra, concerned an Alabama statute which established minimum height (5' 2") and weight (120 pounds) requirements for employment as a correctional officer (prison guard). Diane Rawlinson was refused employment as a correctional officer because she failed to meet these minimum requirements.

In Dothard, supra, statistics were introduced showing that women, 14 years of age or older, comprise 52.75% of the population of Alabama and 36.89% of the total labor force. Only 12.9% of Alabama correctional counselors are women. The Alabama height requirement would exclude 33.29% of women in the United States between the ages of 18-79, while only excluding 1.28% of men between the same ages. The weight requirement would exclude 22.29% of women and 2.35% of men in that age group. In combination, the two requirements would exclude 41.13% of women, while excluding less than 1% of men. The Supreme Court held that the District Court did not err in finding that Rawlinson had made a prima facie showing of discrimination of the height and weight requirements on the basis of these statistics, although the Supreme Court noted that the percentage of excluded males could properly have been found to be as high as 3.63%.

The Supreme Court then discussed whether the employer had rebutted the pri-ma facie case of discrimination by showing that the requirements were job-related. In Dothard, supra, the employer argued that the height and weight requirements have a relationship to strength, an attribute essential to effective job performance as a prison guard. The employer produced no evidence correlating the requirements to the requisite amount of strength needed to perform the job. The Supreme Court held that the height and weight requirements were discriminatory since the employer produced no evidence to justify the requirements.

We turn now to the proof presented in the instant case. The height requirement for employment as a state trooper is 5' 6"; there is a proportional weight requirement based on height. Applicants must also be licensed drivers and between the ages of 21 and 30. Comparisons of licensed drivers in Kentucky between the ages of 21 and 30 established that 70% of women would be excluded by the height requirement whereas only 5% of men would be excluded. Certain other data indicated that 91.9% of young adult women are less than or equal to 5' 6" in height, whereas only 28.6% of young adult men are less than or equal to that height. It was also shown that one (1) out of every three (3) women who applied for employment as a state trooper was rejected because of failure to meet the height requirement, whereas one (1) out of every one hundred thirty-three (133) men were rejected for that reason. There is one woman employed as a Kentucky state trooper at the present time.

Although the Bureau of State Police questioned the validity of the statistics in the Franklin Circuit Court, these statistics are not questioned on this appeal. In view of these statistics, it can be seen that this height requirement disproportionately excludes women as applicants. A prima facie showing of discrimination has been proven. Griggs v. Duke Power Co., supra; Dothard v. Rawlinson, supra.

The next question to be resolved is whether the Bureau of State Police established that the height requirement was job-related. A brief summary of the proof presented on this issue is warranted.

Peter Bloch, the expert who testified for Pearson and Cota, stated that there is no validated study which shows a relationship between height and performance by a police officer. The expert witness for the Bureau of State Police, Dr. James W. Fox, likewise testified that there was no empirical evidence of a relationship between height and performance.

Pearson and Cota presented the testimony of several female law enforcement officers, all under 5' 6" in height, who stated that they were able to perform their law enforcement duties in an effective manner. These female officers are city police officers. The Bureau of State Police established the differences which exist between the job of a state trooper as compared to that of a city police officer, being the availability of back-up officers, the availability of fire and emergency medical services, the distances patrolled, etc.

The witnesses for the Bureau of State Police were police officers, the past Commissioner of the Bureau of State Police and the present Commissioner. Their testimony focused on the physical aspects of a state trooper’s job. They all agreed that height is a significant factor in the effective performance of that job. The witnesses pointed out the physical advantages of height in such normal police situations as effectuating an arrest and in crowd or traffic control. The witnesses also stressed the psychological advantages which a taller officer has in confrontations with potential arres-tees. There was testimony that the citizens of this Commonwealth entertain a certain image of the ideal state trooper, being a “big, tall man.”

The Commission found that there was no scientifically valid study which established any relationship between the height of a state trooper and performance. The Commission found that the evidence presented by the Bureau of State Police was opinion testimony, unsupported by factual or objective evidence.

On the other hand, the Franklin Circuit Court found from the evidence that size was an important aspect and “that appearance of a state trooper is an integral attribute which is necessary to the proper function of a state trooper.” The Franklin Circuit Court quoted from the concurring opinion in Dothard v. Rawlinson, supra, wherein it was stated that appearance could be argued as a job-related qualification.

Pearson and Cota argue that the evidence presented by the Bureau of State Police does not show that the 5' 6" height requirement is necessary to safe and efficient job performance, but rather that the 5' 6" requirement is simply a preference. They state that the Bureau is relying on needed physical skills for effective job performance which are unrelated to height. Pearson and Cota point out alternatives to a height requirement, if physical ability is a necessary attribute. One of these alternatives is an agility test. They also point to the cadet training program, which prospective troopers are required to complete and which would operate to exclude applicants who are not suited for employment as a state trooper.

There must clearly be some direct relationship between the height requirement in question and performance of a state trooper’s job. Albemarle Paper Co. v. Moody, supra; Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).

In the instant case, there has been no validated study either proving that a certain height is a necessity for effective performance as a state trooper nor disproving that persons below a certain height cannot perform effectively. However, the question of job relatedness must also be viewed in the context of the duties and functions a state trooper must perform.

State troopers patrol a wide area and ride in single-patrol units. State troopers are confronted with different situations than those city police officers are faced with. The question of how much assistance state troopers can rely on in emergency situations and the time factor for such assistance to arrive cannot be overlooked.

The Bureau of State Police has made a sufficient showing that the physical characteristics of size and appearance are necessary qualifications for safe and efficient performance by a state trooper. The height requirement is, therefore, not discriminatory. Although there may be alternatives to determining physical strength, there is only one method of determining size, if size is deemed to be job-related. That method is simply to measure the applicant.

The showing made by the Bureau of State Police was ignored by the Commission as being of no probative weight or value. The trial court, on the other hand, did consider this evidence and gave it considerable weight and value. There is ample authority for the trial court to consider such evidence. In the case of Smith v. Troyan, 520 F.2d 492 (6th Cir. 1975), cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385, reh. denied, 429 U.S. 933, 97 S.Ct. 341, 50 L.Ed.2d 303, the Sixth Circuit Court of Appeals upheld a 5' 8" height requirement for police officers in the City of East Cleveland, Ohio. The Court’s decision turned on the testimony of three East Cleveland police officials who testified uncontradictedly and adamantly to the need for a height requirement. The testimony involved the psychological advantage of taller officers and the advantage of height in effecting arrests and emergency aid.

We do not think that the standard of review set out in KRS 344.240(2) prohibited the court from considering this type of evidence. Whether or not evidence is of probative value is a legal question and the Legislature cannot impair judicial review of legal questions. American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, et al., Ky., 379 S.W.2d 450 (1964).

Furthermore, the trial court was in as good a position as the Commission in determining the sufficiency of the evidence of the Bureau of State Police. This is not a question involving the overturning of findings of disputed facts. CR 52.01. Rather, it was a legal question regarding the Commission’s ruling that certain evidence would not be considered. We quote from Louisville and Nashville Railroad Company v. Commonwealth, Ky., 314 S.W.2d 940 (1958).

A question of law for review by the courts may be presented as to whether or not an administrative body, acting under a broad and undefined statutory term, has taken into consideration irrelevant factors or has failed to take into consideration those that are relevant.

We find that the trial court committed no prejudicial error in considering these matters of evidence, and as a result of such consideration, making its own finding that the Commission’s ruling was clearly erroneous in view of the probative and substantial evidence on the whole record. KRS 344.-240(2).

The judgment of the trial court is affirmed.

All concur.


author: GANT, Judge.

text:
    LOUISVILLE AND NASHVILLE RAILROAD COMPANY and Charles G. Scott, Appellants, v. Herman Joseph MARSHALL, Appellee.
    Court of Appeals of Kentucky.
    April 6, 1979.
    Discretionary Review Denied Oct. 2, 1979.

      John P. Sandidge, Woodward, Hobson & Fulton, Louisville, for appellants; M. D. Jones, Chauncey E. Brummer, Law Dept., Louisville, of counsel.
    James M. Clements, James W. Bryant, Schaefer & Airhart, Louisville, for appellee.
    Before GANT, WHITE and WILHOIT, JJ.
   GANT, Judge.

Appellee Marshall is an employee of appellant L & N and a member of the Brotherhood of Railway, Airline and Steamship Clerks (BRAC), which organization has a collective bargaining agreement with L & N. Marshall’s seniority dates back to 1966, when he commenced work with the L & N as a clerk-typist. He worked in various positions covered by the agreement and in one exempted position for a period of several years, and participated in the company’s educational program by which they paid his college tuition leading to a B. S. degree. In February, 1975, after an exempted position had been abolished, Marshall exercised his seniority under the collective bargaining agreement to claim a position in Capital Expenditures Accounting and was awarded the position of Additions and Betterment (A & B) Accountant-Knoxville Division. One year later, another position opened up in the A & B section in Special Projects and appellant again exercised his seniority under the collective bargaining agreement, bid for this position and was awarded it commencing March 8, 1976.

Under the collective bargaining agreement, an employee holding a new position is placed on a 30-day probationary period, which could be extended to 90 days with the consent of the union. Appellee’s immediate supervisor, appellant Charles G. Scott, because appellant had taken five days vacation and three days sick leave in the first three weeks, sought and obtained an extension of the qualifying period for the maximum of 90 working days and Marshall was so notified.

Marshall took another vacation on April 12 to noon April 15, took a half day off without pay for the remainder of April 15 and April 16 was a holiday — Good Friday. Thus, in the first 30 work days, Marshall had taken 8½ days vacation, three days sick leave, one-half day off without pay and a holiday. Scott, knowing that he would be out of the office on business for the week commencing April 19, went through the work papers which had accumulated on Marshall’s desk during his previous week’s absence, organized these papers and prepared a handwritten memorandum of instructions. Scott left Xerox copies of these instructions for his immediate superior, the person in charge of the section in his absence, and with a co-worker of Marshall’s, and phoned Marshall at home informing him of the instructions and the manner in which he could get help. During the next week, when Marshall was to do this work, he took another day of sick leave and a day off without pay, working only three days, and completed only two of the eight items of work assigned to him. It was the consensus of the proof in this case that the work assignment given by Scott to Marshall was not an onerous burden and that the work could have been done in the work period.

Scott himself was scheduled for two and one-half days vacation commencing at noon on April 28 and before leaving the office discussed some 40 reports which Marshall had logged out and which Scott informed him were of number one priority. On Scott’s return to the office on May 4, he found that Marshall had accumulated some 93 material reports on the special projects job. Marshall had not worked on May 3 or May 4 because of the death of his stepfather, but it was determined that 68 of these 93 reports were received on April 27 or before, four received on April 28 and 12 received on April 29. Of course, no discredit was assigned to Marshall for those which were received during his absence for his stepfather’s funeral. Again, the proof indicated that the work was not burdensome and could have been done in the work period without undue hardship.

During the period already referred to, two memoranda concerning Marshall were prepared by Mr. Scott. The first of these stated, in part, as follows:

Joe has demonstrated that he is an intelligent person with a good educational background and holds college degrees in various fields. He is presently a student at the University of Louisville Law School during the evenings. However, he is an immensely involved person with business and political activities in addition to handling his school work and his position with the railroad.
In his previous position, Joe used the phones excessively from my viewpoint. This matter was discussed with Joe previously and again after assuming his new position but has not been resolved to my complete satisfaction.
There is no doubt but what Joe has the ability to learn the duties of his new position if he will concentrate on his work and use his time properly. He cannot qualify in this position without concentration and dedication and does not have the time for excessive involvement in matters not related to company business.

This memorandum was prepared on April 24, given to Scott’s secretary on April 26 and dated April 28.

The second memorandum, which Marshall claims is in part libelous, was dated May 5 and reads as follows:

Upon returning from vacation on May 4, 1976, and reviewing the status of track material accounting which was scheduled to close at 2:00 P.M. that day, I discovered that all A&B accountants had progressed to the point where they could close the material audit on schedule except for Mr. H. J. Marshall.
Our track material log-out sheet reflected that only two lots (40 reports) had been worked and turned over on the Georgia Railroad for handling by our Data Processing Department. These two lots had been turned over by Joe Marshall before I left on vacation on Wednesday, April 28, 1976. Before I left on vacation, I specifically instructed Joe to give priority to working track material reports up to date.
Joe was not present for work when I returned due to the death of his stepfather, and had been absent the previous day for that reason. I reviewed Joe’s track material reports which had been received but not worked — a breakdown of these reports is shown below:
A review of the date received stamp on the back of these reports indicated that six (6) reports were received the morning of May 4th, and the remaining eighty seven (87) reports were received on April 29th or prior.
I confirmed that Joe Marshall had worked Wednesday through Friday, April 28-30, a total of twenty hours since my departure although no accomplishments of any consequence were evident. However, I understand he spent about two hours within that period discussing with Mr. Spencer a memo by Mr. Booth regarding excessive use of the telephones.
It is evident that within the remaining eighteen (18) hours, Joe had sufficient time to work the material reports up to date, but willfully chose to ignore my directive. I suggested to Joe that if he had any questions regarding material reports during my absence, he should talk with Acting Supervisor D. R. Kellum or Bob Skeeters, the previous occupant of his position. I have confirmed that no questions regarding track material were asked of either party.
As a matter of information, a total of sixteen (16) additional hours were required by other A&B accountants and by me personally to close out Joe’s material audit while shelving our own duties. This was accomplished at 4:00 P.M. instead of meeting the 2:00 P.M. deadline.
As a matter of . record, I want to cite a similar situation discovered on April 26, 1976, upon my return from Atlanta. I spent the week of April 19-23 in Atlanta on an inventory of the Georgia Railroads. Before leaving, I reviewed the work on Joe’s job while he was on vacation and made a list of work required to catch up his work- in the sequence which I wanted it performed. This list was left with Acting Supervisor Kellum for handling with Joe. In addition, I called Joe at home on Sunday evening, April 18th, and discussed the list of work items with him. When I returned, I found Joe had been sick one day and had been given another day off without pay. In the 24 hours he worked that week, he acknowledged that he had only completed the first two items on the list of eight items, both of which dealt with filing reports and correspondence.
Both situations were discussed with Mr. J. W. Booth and Mr. P. L. Spencer. The first situation mentioned regarding the material reports was also discussed with Mr. M. S. Coffman, Local Chairman of the B.R.A.C. Protective Committee, and the unworked reports were shown to him.
Joe’s actions in both instances show a disregard for directives both written and verbal, and indicate that he had no intention of complying with requests made of him or subordinating himself to established supervision. These actions alone seem to be sufficient grounds for disqualification from this position.
After considerable discussion with Mr. Spencer about this matter, he requested that Mr. Booth and I confer with Joe Marshall about these incidents, determine his response to them, and outline anew what is expected of him in this position. Additional time was to be granted him to give him every chance to qualify in this position rather than invoke disqualification procedures at this time.

A pencilled copy of this was furnished to Scott’s immediate supervisor and prepared by a secretary in the office.

Also, during the period of time to this point, Scott’s immediate superior had noted that a number of the employees in Marshall’s section were making excessive use of the telephone in the office and had prepared a memorandum reminding the employees of the existing office rules concerning the use of the single telephone in that section. All the employees in this section initialed the memorandum except for Marshall who refused on the grounds that he did not agree with the memorandum. This matter was referred to another supervisor in the office, who had a two-hour meeting with Marshall, resulting in Marshall’s initialing the memorandum despite his disagreement. Apparently after this conference, Marshall took off another two hours and ten minutes without pay.

At some point after the May 5 memorandum, above referred to, a conference was held between Marshall and his two immediate supervisors, including Scott, encouraging Marshall to work harder during his probationary period, which conference did not result in material satisfaction to the supervisors. An itemized list of errors attributable to Marshall was kept and referred to him for corrections, and on Saturday, August 7, 1976, Scott prepared a handwritten memorandum to the company in which he set forth his recommendations concerning the qualifications of Marshall for- the position on which he was serving the probationary period. This was given to an office secretary to type, which was prepared on August 9 and dated August 10. On August 9 a copy of this was given to Marshall, as well as a copy of the May 5 memorandum. This latter memorandum is as follows:

You have requested that I give you my final evaluation of Mr. H. J. Marshall on the Special Projects Accountant’s position. The qualification period on this position expires on August 17, 1976.
The position of Special Projects Accountant is one of two top rated positions in the A&B Section. Both higher rated positions have traditionally been positions of leadership within the section and have been held by our most experienced personnel. Likewise, these positions have been utilized as assistants to the supervisor in carrying out the duties of the department.
Joe Marshall rejoined our office staff in February, 1975, when his personal office position in the Tax Department was abolished. After an absence of approximately seven years, he had to be completely retrained in A&B accounting procedures. He worked for approximately twelve months as the A&B Accountant on the Knoxville Division before bidding on the Special Projects Accountant position. Mr. Marshall, although retaining office seniority from previous employment, is the least experienced of the A&B Section personnel.
I have instructed and closely supervised Joe in the duties of his new position for five audit periods (March-July 1976) as well as the respective post audit periods. My observations and evaluations are as indicated below:
(1) Education, Aptitude and Motivation —Joe, as previously mentioned, has a good educational background holding degrees in various fields, none of which are in accounting. He is a likeable person and possesses qualities which in my opinion would be beneficial in public relations and the law fields to name a few. However, in my opinion, he does not have the proper aptitude for accounting work which requires minute detail and does not have motivation in this area.
(2) Experience — He does not have sufficient experience to perform satisfactorily in the position he is now working. Many questions he asks of junior employees in order to perform his work rather than being the experienced leader who can give directions to them.
(3) Interest and Initiative — The Special Projects Accountant’s position requires someone who is interested in the work and is capable of performing the duties of the position individually and with a minimum of direction and supervision. Although Joe showed an interest initially in learning the duties, he more recently has not demonstrated that he is individually oriented or could be classified as a self starter or organized. Too often, he depends upon the supervisor to plan his daily activities and determine the things required to be done.
(4) Performance — I feel that during the time Joe has held this position, he has been given the necessary instructions and assistance from me personally and others whom I have assigned to help him to learn many of the duties of the position and the proper work environment from which satisfactory progress should be evidenced. However, from an evaluation standpoint, I feel he has not performed satisfactory [sic]. He still asks simple questions about matters that have been covered previously and have been repeated but apparently he does not remember the answers. He is a slow worker and commits numerous errors which are a matter of carelessness or improper concentration. Likewise, as has been pointed out in prior communications regarding two specific instances, he does not perform well in the absence of direct supervision and has ignored verbal and written directives which were to be performed during the supervisor’s absences.
(5) Morale — In order to perform the duties of the Special Projects Accountant since Joe has been working this position, I have called on other employees to assist in some areas in critical times such as audit closes and this is resented by these employees. This sentiment has been observed by me and has been expressed to the B.R.A.C.
Local Chairmen and through him to Mr. Booth and me.
In conclusion, I feel that Mr. Marshall has not performed in- a satisfactory manner in the position of Special Projects Accountant and I recommend that disqualification procedures be effected.

After considerable discussion between the supervisors, several alternatives to formal disqualification were suggested to Marshall, none of which was acceptable to Marshall. On August 16 Marshall was officially notified of his disqualification as A & B Accountant — Special Projects and of his return to his former position of A & B Accountant — Knoxville Division, effective August 18, 1976. Rather than return to the Knoxville Division, Marshall exercised his seniority, bid for and was awarded the position of A & B Accountant-Cincinnati Division, a position comparable to the Knoxville job. This job paid some $60.00 per month less than the job from which Marshall was disqualified.

Thereafter, Marshall requested a hearing, pursuant to the collective bargaining agreement, on his grievance against the company. In this request, he asked for participation by his retained counsel. The agreement itself provided for a hearing before a designated company officer and provided for representation of the employee by union representatives, but the agreement did not provide for either the company or the employee to be represented by counsel. The agreement further provided for an appeal to the National Railway Adjustment Board as provided in the Railway Labor Act, after a decision by the company. At the outset of his request for a hearing, Marshall sought the assistance of the officials of the union, BRAC, and requested, a hearing within ten days as provided by one section of the collective bargaining agreement. However, the company construed the hearing to be under another section of the agreement, which section seems to this Court to be applicable, and which section had no ten-day provision. A satisfactory date was worked out between the company and the union officials, each side having a conflict on the dates first sought, and a hearing was set for September 21, 1976, some three weeks after the request for a hearing had been granted. The appellee apparently became disenchanted with union representation, insisted on his hearing under the inapplicable ten-day provision and finally obtained a restraining order against the company to prevent the hearing he had originally requested. Thus, instead of pursuing the process established by the agreement, the appellee actually prevented the process.

Marshall brought this action in the Jefferson Circuit Court, alleging that he was libelled by the L & N and Scott, his supervisor, and the jury awarded him damages in the amount of $120,000, $60,000 compensatory and $60,000 punitive.

Appellants first argue that the Railway Labor Act provides a complete and exclusive remedy for the resolution of all minor disputes between a carrier and its employees arising out of the employment relationship established to a collective bargaining agreement negotiated pursuant to that Act. The applicable section of the Railway Labor Act, 45 U.S.C. § 153 First (i) reads as follows:

The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on June 21, 1934, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment, in this manner the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.

Thus, two steps for a grievance are set up, just as appeared in the collective bargaining agreement herein. First, the designated officer of the company hears the grievance, and second, the Adjustment Board serves as the appellate body. It is uncontradicted that Marshall availed himself of neither of these procedures, and the sole question then becomes whether this is an exclusive remedy or whether the state courts retain their right in this type of case to grant relief for an alleged malicious and intentional libel.

At first reading, 45 U.S.C. § 153 First (i), seems to be an optional provision when relating to the Adjustment Board in that it states that “. : . the disputes may be referred ... to the appropriate division of the Adjustment Board.” Indeed it was so held in the case of Moore v. Illinois Central R. Co., 312 U.S. 360, 61 S.Ct. 754, 85 L.Ed. 1089 (1941). However, since that decision the Supreme Court has repudiated that ruling on numerous occasions. In the case of Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad Co., 353 U.S. 30, 39, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957), the court, after reviewing the legislative history of the Railway Labor Act, stated:

This record is convincing that there was [a] general understanding between both the supporters and the opponents of the 1934 amendment that the provisions dealing with the Adjustment Board were to be considered as compulsory arbitration in this limited field.

In the case of Walker v. Southern Railway Co., 385 U.S. 196, 198, 87 S.Ct. 365, 366, 17 L.Ed.2d 294 (1966), the court said:

Provisions for arbitration of a discharge grievance, a minor dispute, is not a matter of voluntary agreement under the Railway Labor Act; the Act compels the parties to arbitrate minor disputes before the National Railroad Adjustment Board established under the Act.

The ease of Andrews v. Louisville & Nashville Co., 406 U.S. 320, 322-324, 92 S.Ct. 1562, 1564-1565, 32 L.Ed.2d 95 (1972), went even further in disposing of Moore. The court in this case stated:

Thus, the notion that the grievance and arbitration procedures provided for minor disputes in the Railway Labor Act are optional, to be availed of as the employee or the carrier chooses, was never good history and is no longer good law.
In International Association of Machinists v. Central Airlines, 372 U.S. 682, 83 S.Ct. 956, 10 L.Ed.2d 67 (1963), an agreement required under § 204 of the Railway Labor Act was said to be “like the Labor Management Relations Act § 301 contract . a federal contract and . therefore governed and enforceable by federal law, in the federal courts.
The fact that petitioner characterizes his claim as one for “wrongful discharge” does not save it from the Act’s mandatory provisions for the processing of grievances. Petitioner argues that his election to sever his connection with the employer and treat the latter’s alleged breach of the employment contract as a [“single”] “discharge” renders his claim sufficiently different from the normal disputes over the interpretation of a collective bargaining agreement to warrant carving out an exception to the otherwise mandatory rule for the submission of disputes to the Board. But the very concept of “wrongful discharge” implies some sort of statutory or contractual standard that modifies the traditional common-law rule that a contract of employment is terminable by either party at will. Here it is conceded by all that the only source of petitioner’s right not to be discharged, and therefore to treat an alleged discharge as a “wrongful” one that entitles him to damages, is the collective-bargaining agreement between the employer and the union.

It is our opinion that these cases, above cited, are dispositive of this case and that the Railway Labor Act and the collective bargaining agreement herein provide for a sole and exclusive remedy by the procedures above outlined. The appellee urges that the federal law does not apply and cites numerous cases in support thereof, principally the case of Linn v. United Plant Guard Workers of America, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). This case was also a defamation action and was brought under state law against a union. However, the remarks in this case were made during the course of a union organizing campaign and not made pursuant to a contract and collective bargaining agreement which had been negotiated pursuant to the Railway Labor Act and which agreement itself adopted the provisions of that Act and provided for the resolution of minor grievances.

The common law rule has always been that a contract of employment is terminable by either party at will, in the absence of some statutory or contractual standard that modifies this rule. In the instant case, Marshall secured his employment under the collective bargaining agreement mandated by the Railway Labor Act. It was his seniority as prescribed by that Act and by the collective bargaining agreement which had secured this job, as well as several other jobs held by the appellee. In the absence of the collective bargaining agreement and the Railway Labor Act, Marshall could have been demoted or even discharged with no excuses given. The standards prescribed for a qualifying or probationary period were the result of the collective bargaining agreement. That agreement further provided for an evaluation by the supervisor of the employee and his performance during the probationary period. It is difficult for this Court to see why the federal law does not apply, and it is our opinion, pursuant to the cases above cited, that the Railway Labor Act clearly provides for a complete and exclusive remedy for the resolution of such a minor dispute as the demotion of an employee who holds his position pursuant to a collective bargaining agreement under that Act.

Appellee urges that the “outrageous conduct” of appellants removes this case from the exclusivity of the Railway Labor Act. This phrase is apparently gleaned from the case of Farmer v. United Brotherhood of Carpenters and Joiners of America, Local 25, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977). That case concerned violence and threats of violence among union members over hiring hall practices, and was not an action rooted in contract. However, Farmer gives to us an insight into the type of cases where the federally prescribed remedy is exclusive and those in which the state law will apply. Although dealing with the Labor Management Relations Act and not the Act here in question, the court referred to the rule which has become known as the Garmon rule as elucidated in the case of San Diego Building Trades Council Etc. v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959), as follows:

When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law.

Farmer then goes on to recognize a number of exceptions, citing Linn v. Plant Guard Workers, supra. Farmer noted the limitations of Linn, one being that an exception to the Garmon rule would be granted where there would be little risk that the state cause of action would interfere with the effective administration of national labor policy. Farmer, supra at 97 S.Ct. 1062. We can imagine nothing which could interfere to a greater extent than stifling the policy of rating of probationary employees by their supervisors because of fear of a state action for libel. As the court said in Macy v. Trans World Airlines, 381 F.Supp. 142, 148 (D.Md.1974):

Notices of suspension and dismissal for cause, which are contemplated by the Collective Bargaining Agreement for adjustment and arbitration pursuant to the Railway Labor Act, must be allowed to be made clearly and precisely in accordance with the policies of the Railway Labor Act and must not be allowed to be subject to the temptation of . ambiguity or imprecision by one fearful of a libel action under state law.

The “outrageous conduct” complained of in the instant case pales when the definition of such conduct as outlined in Farmer is applied. That definition is: “It must be of such a substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” Id. at 97 S.Ct. 1060.

The conduct herein falls far short of that standard.

The second argument of the appellant is that statements made by a supervisor of the carrier in connection with the work performance and behavior at work of an employee directly under his supervision, which statements are made pursuant to procedures contemplated by the collective bargaining agreement, are clothed by federal law with an absolute privilege. This argument is virtually concurrent with the other argument advanced by the appellant and discussed above.

Again, several federal cases furnish us with the guidelines for this. We feel that the language in the case of Joftes v. Kaufman, 324 F.Supp. 660, 662 (D.D.C.1971), sums up the position of the courts under these circumstances. In that case the court held:

All these arguments point in the direction of one principle: That notices of dismissal for cause which are contemplated by a collective bargaining agreement and which are published by the employer only to those with a legitimate interest in the subject matter may not be made the subject of an action in libel, regardless of whether the allegations of cause are true or false and regardless of the actual motive behind the dismissal. This principle finds ample support in the law and requires that summary judgment be entered for defendants as to each cause of action.

In the instant case, the only publication of this report was to the secretary who typed the reports and to those supervisory employees with a “legitimate interest in the subject matter.” It is also clear that under the collective bargaining agreement which provided for the probationary period, a' report from the immediate superior to that person in charge of making permanent appointments was contemplated.

The court in Joftes, supra at 664, went on to say:

Here, on the other hand, Joftes had available to him an opportunity through the grievance machinery to secure personal relief and vindication, and by way of an action for wrongful discharge if the grievance procedure were held not to be an exclusive remedy under the terms of the agreement. To allow him to proceed instead by way of a burdensome, expensive, vexatious libel suit against individuals who did no more than fulfill their duty to inform him of [the] reasons for his discharge would indeed be subversive of the carefully constructed system of procedures and remedies for employment disputes.

In the case of General Motors Corp. v. Mendicki, 367 F.2d 66, 70-72 (10th Cir. 1966), the court stated as follows:

It is our conclusion that statements made either by representatives of management or by representatives of an employee at a conference and bargaining session having for its purpose the adjustment of a grievance of the employee or other peaceable disposition of such grievance are unquali-fiedly privileged.
The question in the instant case is whether an action for damages on account of the statement upon which the instant case is predicated, made in a conference and bargaining session to adjust an employer’s grievance, and which was clearly germane to the issues involved, would interfere with the national labor policy, and whether it is necessary to hold such statements unqualifiedly privileged to prevent impairment of that policy. We conclude it is necessary to hold that the statement here involved was unqualifiedly privileged, in order to prevent impairment of that policy.

In the Mendicki case, supra, the alleged defamation occurred in a session similar to Step 1 in the grievance procedure provided under the collective bargaining agreement in this case and under the Railway Labor Act. We feel that this is indistinguishable from the procedure provided under that Act for the probation of an employee before permanent acquisition of the position which he sought under this collective bargaining agreement.

Appellee urges again that the case of Linn v. United Plant Guard Workers, supra, would remove actual malice from the exemption. However, both the Joftes case, supra, and Mendicki, supra, distinguish Linn by stating that the remarks made in that case occurred during the course of a union organizing campaign and did not occur pursuant to the collective bargaining agreement itself and pursuant to the Railway Labor Act, which provided a means of settling such minor grievances.

Appellee contends that Joftes v. Kaufman, supra, does not apply because of the element of consent by the employee which was present in that case. However, the consent therein was implied from the fact that the collective bargaining agreement entered into between the employer and the union of which the employee was a member required written notice of reasons for dismissal. In the case before us, written notice was not required, but we feel that it was clearly contemplated by the collective bargaining agreement as a part of the probationary process. Indeed, the Railway Labor Act, 45 U.S.C. § 153, First (i), provides for a “full statement of facts . bearing upon the disputes.” The appellee, having secured positions with his company for a period of ten years under the provisions of the Act, cannot accept the benefits and then claim inapplicability of the provisions he does not like. We feel that the same element of implied consent to the report is present herein.

We therefore hold that under the circumstances of this case the communications complained of as libelous by the appel-lee were, in fact, privileged communications and clearly contemplated under the terms of the collective bargaining agreement.

In view of our holdings on the two previous grounds, it is not necessary for us to reflect upon the other arguments of the appellant. However, we do note that the evidence of actual malice was extremely veiled and hardly clear and unequivocal as required under the case law. It is our further opinion that reference to the appel-lee as an intelligent person but lacking in interest and motivation may well have been true in light of the fact that he operated a real estate office with four salesmen, operated as an auctioneer, and was attending law school in addition to working for the appellant, L & N.

For the reasons above stated, the judgment herein is reversed.

All concur.