Present: Carrico, C.J., Compton, Stephenson, Hassell, Keenan,
and Koontz JJ., and Whiting, Senior Justice
ALLEN & ROCKS, INC., ET AL.
OPINION BY
v. Record No. 952208 SENIOR JUSTICE HENRY H. WHITING
November 1, 1996
JAMES F. DOWELL
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
The dispositive issue in this appeal is whether an action
under the insulting words statute, Code § 8.01-45, 1 may be
maintained absent proof that the insulting words were such as to
"tend to violence and breach of the peace." Since the plaintiff
prevailed before the jury, we view the facts and reasonable
inferences to be drawn therefrom in the light most favorable to
him.
James F. Dowell, age 59, a long-time employee at will of
Rocks Engineering Company was discharged without explanation by
Ralph D. Rocks (Rocks), chairman of the boards of Rocks
Engineering Company and Allen & Rocks, Inc., an affiliate of
Rocks Engineering Company. At the time of his discharge, Dowell
managed properties owned by Allen & Rocks, Inc.
After unsuccessfully seeking other employment for a number
of months, Dowell contracted with a company known as Documented
Reference Check (DRC) to ascertain the kind of reference Rocks
was giving to Dowell's prospective employers. Eileen De La
1
Code § 8.01-45 provides:
All words shall be actionable which from their
usual construction and common acceptance are construed
as insults and tend to violence and breach of the peace.
Torre, an employee of DRC, spoke with Rocks on the telephone.
Responding to her questions, Rocks stated that Dowell's
accomplishments and interpersonal skills with management were
unsatisfactory; that Dowell did not communicate well with Rocks;
that Dowell had been discharged because of his performance; and
that Rocks, were he in the shoes of a potential employer, would
not hire Dowell.
Following this conversation, Dowell filed an action at law
against Rocks, Allen & Rocks, Inc., and Rocks Engineering
Company. In Count One, he alleged a discriminatory discharge
because of his age in violation of the Virginia Human Rights Act,
Code §§ 2.1-714 to 725. In Count Two, Dowell set forth a
defamation claim. In Count Three, he pled a claim under the
insulting words statute. Counts Two and Three allegedly arose
from Rocks' telephone remarks.
When Dowell rested his case in a jury trial, the court
sustained the defendants' motion to strike the evidence on Count
Two on the ground that there had been no publication of the
alleged defamatory remarks. The court overruled the defendants'
motions to strike the evidence on the other two counts.
Following presentation of the defendants' case, the jury returned
verdicts for the plaintiff on both counts.
We awarded the defendants an appeal from the judgment
entered on the jury's award of $250,000 compensatory and $80,000
punitive damages on the insulting words claim. The defendants
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have not appealed a $50,000 judgment entered on the
discriminatory discharge verdict, nor has the plaintiff appealed
the action of the court in striking his claim arising under Count
Two.
The defendants contend that the language Rocks used was not
such as to provoke violence and breach of the peace, as required
by Code § 8.01-45, and, accordingly, that the court should not
have submitted the insulting words issue to the jury. The
plaintiff responds that, except for its requirement of
publication of the defamatory statements, the insulting words
statute has been completely assimilated into the common law of
defamation. From that premise, he concludes that a plaintiff is
not required to show that the insulting words must also "tend to
the level of violence." We disagree with the plaintiff.
We apply the plain meaning of clear and unambiguous
statutes. Medical Center Hospitals v. Terzis, 235 Va. 443, 446,
367 S.E.2d 728, 730 (1988). Here, Code § 8.01-45 plainly
requires that the words used must not only be insults, but they
must also "tend to violence and breach of the peace."
The plaintiff maintains that our prior cases have obviated
the statutory necessity of showing that the insults must be those
that would lead to violence or breach of the peace. In support,
the plaintiff quotes a number of statements from those cases
indicating that the insulting words statute has been assimilated
into the common law action for defamation.
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Although these statements are contained in opinions which
discuss either the insulting words statute, the common law of
defamation, or both, the statements were made in contexts having
little to do with the statutory requirement that the words used
must "tend to violence and breach of the peace." Guide
Publishing Company v. Futrell, 175 Va. 77, 88, 7 S.E.2d 133, 138
(1940) (trial court's power to review issue of improper
innuendo); W.T. Grant Co. v. Owens, 149 Va. 906, 913, 141 S.E.
860, 863 (1928) (principal's liability for agent's insulting
words uttered in the course of his employment); Carwile v.
Richmond Newspapers, 196 Va. 1, 6-7, 82 S.E.2d 588, 591-92 (1954)
(application of innuendo to defamation and insulting words
counts); Shupe v. Rose's Stores, Inc., 213 Va. 374, 376, 192
S.E.2d 766, 767 (1972) (application of requirement of special
damages to words not themselves actionable). Indeed, Carwile
cites Darnell v. Davis, 190 Va. 701, 706, 58 S.E.2d 68, 70
(1950), which held that the words used must be "insulting and
tending to violence and breach of the peace."
Nor are we persuaded by the plaintiff's assertion that in
Crawford v. United Steel Workers, AFL-CIO, 230 Va. 217, 335
S.E.2d 828 (1985), cert. denied, 475 U.S. 1095 (1986), we "laid
to rest the view that the words had to tend to breach the peace
to be actionable under the Statute." We think that he misreads
Crawford. There, we reversed a judgment for the plaintiff
premised on certain insulting words that may have tended to
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violence and breach of the peace because those words were uttered
during a labor dispute and, considering the way in which the
words were used, they were not actionable under the insulting
words statute. Id. at 234-35, 335 S.E.2d at 838-39.
Plaintiff cites three cases in support of his claim that
false statements, which do not tend to violence, have been found
actionable under the insulting words statute if defamatory per se
because they tend to injure a person in his trade or profession.
However, the substantive issues in these cases were issues other
than whether the plaintiff must show that the words used were
such as to provoke violence or a breach of the peace. Carwile,
196 Va. 1, 82 S.E.2d 588 (role of innuendo); Luhring v. Carter,
193 Va. 529, 69 S.E.2d 416 (1952) (qualified privilege); Kroger
Grocery and Baking Co. v. Rosenbaum, 171 Va. 158, 198 S.E. 461
(1938) (scope of qualified privilege).
In summary, plaintiff cites no case in which we have said
that any assimilation of the statutory cause of action for
insulting words by the common law of defamation has eliminated
the statutory necessity of showing that the words used were such
2
as to provoke violence or breach of the peace, and we find none.
Given the plain language of Code § 8.01-45, we hold that the
2
Montgomery Ward & Co. v. Nance, 165 Va. 363, 182 S.E. 264
(1935), cited by plaintiff for another principle, permitted a
discharged employee to recover damages from his former employer
based upon common-law defamation and the insulting words statute.
However, there, the issues raised were other than whether the
insulting words were also required to be such as to tend to
violence or breach of peace.
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plaintiff was required to prove, and failed to prove, that the
words Rocks used in the telephone conversation were such as
tended to violence or breach of the peace.
Finally, the plaintiff contends that the jury, having found
that he was discharged solely because of his age and not because
his services were unsatisfactory, could have considered the
language Rocks used in the telephone conversation to be false
and, therefore, defamatory. Nonetheless, he fails to show how
this language could be construed as that tending to violence and
breach of the peace, as required in Code § 8.01-45. Nor do we
think that reasonable persons could so construe that language.
Thus, we hold that the court erred in failing to sustain the
defendants' motion to strike the plaintiff's evidence as to Count
Three. Accordingly, we will reverse the judgment of the trial
court with respect to Count Three and enter final judgment for
the defendants.
Reversed and final judgment.
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