Present: All the Justices
CHARLES B. POULSTON, JR.
OPINION BY JUSTICE ELIZABETH B. LACY
v. Record No. 951184 March 1, 1996
BOBBY ROCK
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
In this defamation action, we consider whether the trial
court abused its discretion in determining that a jury verdict
for compensatory and punitive damages was excessive and
requiring a plaintiff to remit part of the verdict amount and
accept judgment for the reduced sum.
Charles B. Poulston, Jr. and Bobby Rock were acquaintances
and shared an interest in custom built motorcycles. In January
1993, Poulston obtained a judgment against Rock for negligently
painting Poulston's motorcycle. Rock failed to pay the amount
of the judgment and Poulston instituted garnishment
proceedings. When Rock was served with the garnishment
summons, he placed a call to Poulston's employer, DuPont
Corporation, and spoke with the labor relations manager. Rock
told the manager that Poulston had stolen some nuts and bolts
from DuPont's inventory and had given them to Rock for use in
assembling a motorcycle. Rock also told the manager that he
wanted to "get" Poulston in retaliation for Poulston's
garnishment proceeding. Rock repeated these allegations to
other DuPont employees. DuPont's internal investigation based
on Rock's allegations disclosed no evidence of Poulston's
alleged theft.
Rock repeated his allegations, that Poulston stole the
nuts and bolts, to participants in a custom motorcycle show.
Rock also confronted Poulston on two separate occasions,
calling him a liar and a thief. These incidents occurred in
restaurants and the accusations were heard by other patrons.
Poulston filed this action against Rock seeking $40,000 in
compensatory damages and $60,000 in punitive damages for Rock's
defamatory statements. Following trial, the jury found in
favor of Poulston and awarded compensatory damages of $10,000
and punitive damages of $25,000. Rock moved to set the verdict
aside, arguing that the damage amounts were excessive.
The trial court, in a letter opinion, determined that "the
amount of compensatory damages awarded in this case is
shockingly excessive" and "should be reduced to $1,000." The
trial court further found that the punitive damages were also
excessive and should be reduced to $2,500. Pursuant to Code
§ 8.01-383.1(A), 1 the trial court entered a final order
granting judgment in favor of Poulston but remitting the damage
1
Code § 8.01-383.1(A) states:
In any action at law in which the trial court shall
require a plaintiff to remit a part of his recovery, as
ascertained by the verdict of a jury, or else submit to a
new trial, such plaintiff may remit and accept judgment of
the court thereon for the reduced sum under protest, but,
notwithstanding such remittitur and acceptance, if under
protest, the judgment of the court in requiring him to
remit may be reviewed by the Supreme Court upon an appeal
awarded the plaintiff as in other actions at law; and in
any such case in which an appeal is awarded the defendant,
the judgment of the court in requiring such remittitur may
be the subject of review by the Supreme Court, regardless
of the amount.
award to "$1,000 compensatory and $2,500 punitive or else there
will be a new trial on all issues." Under protest, Poulston
accepted the damage amounts ordered by the trial court and
filed this appeal.
I. Compensatory Damages
Generally, a trial court should not disturb a jury verdict
establishing damages which has been fairly rendered and is
based on competent evidence. Nevertheless, a jury verdict is
not beyond the control of the courts. Courts have the duty to
correct a verdict that plainly appears to be unfair or would
result in a miscarriage of justice. Edmiston v. Kupsenel, 205
Va. 198, 202, 135 S.E.2d 777, 780 (1964); Smithey v. Sinclair
Refining Co., 203 Va. 142, 146, 122 S.E.2d 872, 875 (1961).
Circumstances which compel setting aside a jury verdict
include a damage award that is so excessive that it shocks the
conscience of the court, creating the impression that the jury
was influenced by passion, corruption, or prejudice; that the
jury has misconceived or misunderstood the facts or the law;
or, the award is so out of proportion to the injuries suffered
as to suggest that it is not the product of a fair and
impartial decision. Edmiston, 205 Va. at 202, 135 S.E.2d at
780; Smithey, 203 Va. at 146, 122 S.E.2d at 875-76. Setting
aside a verdict as excessive under these conditions is an
exercise of the inherent discretion of the trial court and, on
appeal, the standard of review is whether the trial court
abused its discretion. Bassett Furniture Indus. v. McReynolds,
216 Va. 897, 911, 224 S.E.2d 323, 332 (1976).
The standard under which we review the trial court's
exercise of discretion under these circumstances was enunciated
in Bassett Furniture:
In determining whether a trial court has abused
the discretion . . . we must examine the grounds upon
which he based his order of remittitur. "[T]he
record must show the grounds relied on in support of
such action, otherwise it cannot be upheld." . . .
On the other hand, when it appears from the
record before us that the trial judge made a finding
that the verdict was plainly excessive and remittitur
should be ordered and that, in reaching his
conclusion, he considered factors in evidence
relevant to a reasoned evaluation of the damages
incurred and to be incurred, his order will not be
disturbed on appeal if the recovery after remittitur
bears a reasonable relation to the damages disclosed
by the evidence. "Reasonableness" in this context is
the standard by which the exercise of discretion must
be tested by this Court.
216 Va. at 911-12, 224 S.E.2d at 332 (citation and footnote
omitted).
Applying this standard requires us to make a number of
determinations. First, we must find in the record both the
trial court's conclusion that the verdict was excessive and a
demonstration that, in reaching that conclusion, the trial
court considered "factors in evidence relevant to a reasoned
evaluation of the damages." Id. Then we must determine
whether the amount of the recovery after the remittitur bears a
"reasonable relation to the damages disclosed by the evidence."
Id. We review the reasonableness of the trial court's
evaluation of the relevant damage evidence and the
reasonableness of the relation between the amount of the
remittitur and that evidence. 2
In this case, the record contains the trial court's letter
opinion in which it stated its finding that the verdict was
"shockingly excessive" and set out the factors it considered in
reaching that conclusion. The trial court did not indicate
whether it concluded that the verdict created the impression
that the jury was influenced by passion or prejudice, that the
jury misunderstood the law or facts, or that the verdict was
not the result of a fair and impartial decision. However, a
trial court does not have to use the specific words that the
verdict was the result of passion or prejudice, a
misunderstanding of the facts or law, or not a product of a
fair and impartial decision, so long as one of those factors
may be "fairly inferred from the reasons given." Caldwell v.
Seaboard Sys. R.R., Inc., 238 Va. 148, 157, 380 S.E.2d 910, 915
2
We reject Poulston's argument that our review of the trial
court's exercise of discretion is limited to review of the
amount of the remittitur only. Nothing in Bassett or the
subsequent cases applying the principles established in Bassett
indicate such a limited review. The Court in Bassett carefully
reviewed the grounds on which the trial judge concluded that
the jury verdict was excessive, and the holding in the case
specifically addresses both the determination that the verdict
was excessive and the amount of the remittitur: "we cannot say
that the trial court erred in finding the jury's award
excessive or that the recovery after remittitur bears no
reasonable relation to the damages disclosed by the evidence."
Id. at 913, 224 S.E.2d at 333. Furthermore, Poulston's
reading of Bassett places beyond appellate review the trial
court's initial determination that the verdict was excessive.
This position ignores the requirement that the verdict be set
aside only if it was the result of passion, prejudice,
corruption, a misunderstanding of the facts or law, or not a
product of fair and impartial decision making because it is so
out of proportion to the injuries suffered.
(1989), cert. denied, 493 U.S. 1095 (1990).
Here the trial court's statement that the "size of the
compensatory damage award is without support in the evidence
and grossly in excess of the actual injuries suffered," is in
accord with a conclusion that the award was excessive because
it was so out of proportion to the injuries suffered as to
suggest that it was not the product of a fair and impartial
decision.
In arriving at its conclusion, the trial court
acknowledged that the statements made by Rock were defamatory
per se, and that, under these circumstances, injury to personal
and business reputation is presumed. Slaughter v. Valleydale
Packers, Inc., 198 Va. 339, 347, 94 S.E.2d 260, 266 (1956).
The trial court further recognized that the defamed party need
not produce any evidence showing actual or pecuniary loss to
recover compensatory damages. See Great Coastal Express, Inc.
v. Ellington, 230 Va. 142, 151-52, 334 S.E.2d 846, 853 (1985).
Nevertheless, the trial court explained its conclusion as
follows:
Plaintiff presented no proof that his reputation was
even slightly diminished by defendant's defamatory
statements. No inferences may be drawn from the
proof that plaintiff's reputation was harmed or
tainted in any way by the defamation. On the
contrary, plaintiff's own witnesses testified that
they did not believe defendant's accusation, and held
plaintiff in the same high esteem after learning of
defendant's accusation as before. In addition, the
evidence was devoid of proof that plaintiff suffered
any pecuniary loss from the defamatory statements.
Plaintiff remains employed at DuPont, suffered no
diminution in salary, and is held in high regard by
his fellow employees and superiors. Finally,
plaintiff offered no evidence that he suffered any
physical or emotional injury, save for some
embarrassment sustained from good natured joking of
his peers. Accordingly, the size of the compensatory
damage award is without support in the evidence, and
grossly in excess of the actual injuries suffered,
and thus should be reduce[d] to $1,000.
This explanation is based entirely on the absence of
evidence showing actual injury or damage. Such a focus ignores
Poulston's acknowledged right to recover compensatory damages
absent any proof of injury or of the quantum of injury. "A
plaintiff who proves the publication of words actionable per se
is simply relieved of the necessity of proving the quantum of
his damages for injury to reputation, humiliation, and
embarrassment." Great Coastal Express, 230 Va. at 152, 334
S.E.2d at 853.
The trial court's explanation also ignores the
longstanding principle that, even in the absence of any
evidence of pecuniary loss, the damages which the injured party
is entitled to recover may be substantial. Slaughter, 198 Va.
at 348, 94 S.E.2d at 266; Snyder v. Fatherly, 158 Va. 335, 351,
163 S.E. 358, 364 (1932); Williams Printing Co. v. Saunders,
113 Va. 156, 180, 73 S.E. 472, 478 (1912). This legal
principle presuming injury to reputation, humiliation, and
embarrassment, although not a factor "in evidence," is relevant
and must be considered in any determination of damages based on
defamation per se.
Furthermore, in considering the evidentiary record, the
trial court was required, as are we, to consider the evidence
in the light most favorable to Poulston, the party who received
the jury verdict. Caldwell, 238 Va. at 155, 380 S.E.2d at 914.
The trial court limited its review of reputation injury to
testimony of those who were acquainted with Poulston.
Poulston, however, testified that he believed that injury to
his reputation had occurred among those employees whom he did
not know, or who did not know him personally. The publication
of the remarks in public restaurants expanded the size of the
class of persons who could have formed an opinion of Poulston
based on those defamatory statements.
The evidence also showed that, prior to the publication of
the defamatory statements, Poulston had an untarnished
reputation. We have said that one with an unblemished
reputation is entitled to more damages when subjected to
defamatory statements than one whose reputation is "little
hurt" by the statements. Stubbs v. Cowden, 179 Va. 190, 200,
18 S.E.2d 275, 280 (1942); Weatherford v. Birchett, 158 Va.
741, 747, 164 S.E. 535, 537 (1932). Additionally, the trial
court did not consider evidence that DuPont made a permanent
record of Rock's allegations that Poulston was a thief and that
such a record might affect Poulston in the future.
The trial court's decision to reduce rather than eliminate
the compensatory damage award does not reflect a reasonable
consideration of the factors set out above. The amount chosen
by the trial court, $1,000, as Poulston argues, is a nominal or
trivial amount. Such an amount is inconsistent with the right
to recover substantial damages which we have said attaches to
injuries suffered from statements which are defamatory per se,
Slaughter v. Valleydale Packers, Inc., 198 Va. at 347, 94
S.E.2d at 266, and the damages available to one enjoying a good
reputation, e.g., Stubbs, 179 Va. at 200, 18 S.E.2d at 280.
Because the trial court failed to consider all the
relevant factors necessary for a proper evaluation of the
compensatory damages, we conclude that the trial court abused
its discretion in determining that the jury verdict for $10,000
in compensatory damages was excessive and ordering a
remittitur, reducing the recovery to $1,000.
II. Punitive Damages
Next, we address the issue of punitive damages. Recently,
we set forth the applicable standard of appellate review in
this type of case. In Williams v. Garraghty, 249 Va. 224, 455
S.E.2d 209, cert. denied, ___ U.S. ___, 116 S. Ct. 66 (1995),
we rejected an invitation to rule that the standard should
merely be whether the trial court abused its discretion. But
see Bain v. Phillips, 217 Va. 387, 398, 228 S.E.2d 576, 584
(1976). Instead, we held that in reviewing the order of a
trial court imposing or refusing to impose a remittitur of
punitive damages in a defamation action, "we shall make an
independent examination of the entire record to determine
whether the trial court acted properly. In doing so, we will
give substantial weight to the trial court's action and affirm
it, unless, from our view of the record, the trial court acted
improperly." Williams, 249 Va. at 237, 455 S.E.2d at 217.
Our independent review of the award of punitive damages
leads us to conclude that the award should not have been set
aside. 3 The trial court concluded that the jury award of
$25,000 in punitive damages was excessive and ordered a
remittitur "based both on the lack of evidence of real damage
suffered and the reduction in the [a]mount of the compensatory
award." In light of our discussion and disposition of
compensatory damages, we cannot ascribe substantial weight to
the trial court's action in our review in this case.
It is uncontroverted that Rock was out to "get" Poulston
and sought to accomplish this end by interfering with
Poulston's employment and reputation. Rock reiterated the
defamatory statements in the workplace and in public places,
further injuring Poulston's reputation. Such actions
unquestionably fall within the category of malice and support
the jury award of punitive damages.
Review of the amount of punitive damages includes
consideration of reasonableness between the damages sustained
and the amount of the award and the measurement of punishment
required, The Gazette, Inc. v. Harris, 229 Va. 1, 51, 325
S.E.2d 713, 746, cert. denied, 472 U.S. 1032 (1985), whether
the award will amount to a double recovery, Tazewell Oil Co. v.
United Virginia Bank, 243 Va. 94, 113, 413 S.E.2d 611, 621
(1992), the proportionality between the compensatory and
punitive damages, and the ability of the defendant to pay,
3
There has been no challenge to the award of punitive
3
damages as violative of any due process rights and our
independent review is not based on constitutional
considerations.
Stubbs, 179 Va. at 200-01, 18 S.E.2d at 280.
Double recovery is not an issue in this case. The
relationship between $10,000 compensatory and $25,000 punitive
damages is not unreasonable or strikingly out of proportion.
The record reflects that Rock has assets totaling approximately
$186,000, with a monthly income of about $2,100. Payment of a
$25,000 punitive damage award, approximately 13% of Rock's
assets, does not present an undue burden.
As discussed previously, the evidence of actual damages
sustained must be accompanied by the presumption of actual
injury to reputation, embarrassment, and humiliation in these
types of cases. Indeed, punitive damages can be awarded in
defamation per se cases even in the absence of any award of
compensatory damages. Newspaper Publishing Co. v. Burke, 216
Va. 800, 805, 224 S.E.2d 132, 136 (1976). Therefore, we cannot
say that the punitive damage award is unreasonable on this
basis.
Finally, we cannot say that a punitive damage award of
$25,000 is an inappropriate punishment for Rock's egregious
conduct, particularly conduct which was undertaken in direct
response to Poulston's attempt to utilize the legal system to
collect a debt. Such an award also serves a deterrent effect,
notifying others who would try to harm an individual's personal
or professional reputation solely because that person had
invoked the assistance of the legal system.
Accordingly, we will reverse that portion of the trial
court's judgment setting aside the jury verdict for
compensatory and punitive damages and ordering a remittitur,
and we will reinstate the jury verdict.
Reversed and final judgment.
JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO joins,
dissenting.
"In Virginia, the doctrine of stare decisis is more than a
mere cliche. That doctrine plays a significant role in the
orderly administration of justice by assuring consistent,
predictable, and balanced application of legal principles. And
when a court of last resort has established a precedent, after
full deliberation upon the issue by the court, the precedent
will not be treated lightly or ignored, in the absence of
flagrant error or mistake." Selected Risks Ins. Co. v. Dean,
233 Va. 260, 265, 355 S.E.2d 579, 581 (1987).
Here, the majority gives light treatment to settled
precedent and in the process disregards a rule of appellate
review that has been followed in this Court in case after case
for the last 20 years. While laboring to put a gloss on the
existing standard governing how we review a trial court's order
of remittitur of a compensatory damage award, a standard the
majority apparently does not like, it effectively has overruled
a portion of Bassett Furniture Indus., Inc. v. McReynolds, 216
Va. 897, 224 S.E.2d 323 (1976).
The issue in the case is whether the trial court correctly
required the plaintiff to remit part of the jury verdict for
both compensatory and punitive damages and to accept judgment
for the reduced sum.
Appellant Charles B. Poulston, Jr., filed this action
against appellee Bobby Rock seeking compensatory and punitive
damages for defamatory oral statements made to representatives
of plaintiff's employer. According to the motion for judgment,
defendant maliciously and falsely stated that plaintiff had
given defendant "bolts which were the property of DuPont
Corporation" and that plaintiff had "fabricated a motorcycle
part of cast iron out of DuPont materials," using that part on
plaintiff's motorcycle. Responding, defendant denied the
allegations.
At trial, a jury found for the plaintiff and awarded
compensatory damages of $10,000 and punitive damages of
$25,000. The defendant moved to set the verdict aside, arguing
that the amount of the damages was excessive.
Subsequently, the trial court, in a letter opinion,
granted defendant's motion and remitted 90% of the award
pursuant to Code § 8.01-383.1(A) (authorizes trial court to
order remittitur and provides for appellate review if plaintiff
accepts reduced sum under protest). We awarded the plaintiff
this appeal from the March 1995 order entering judgment for the
plaintiff for $1,000 in compensatory damages and $2,500 in
punitive damages.
According to settled principles of appellate review, I
shall state the facts in the light most favorable to the
plaintiff, who prevailed before the jury. Plaintiff, a welder
employed by DuPont, and defendant were acquainted. Both shared
an interest in the hobby of constructing, displaying, and
riding custom-made motorcycles.
In January 1993, plaintiff had obtained a judgment for
approximately $2,200 against defendant arising from a dispute
between the parties over painting performed by defendant on
plaintiff's motorcycle. On May 7, 1993, defendant was served
with a summons in garnishment, requested by plaintiff in an
effort to collect the judgment.
On May 7, following service of the summons, defendant made
a telephone call to a DuPont labor relations manager in an
effort "to get even with" plaintiff. Defendant stated "that he
knew an employee at DuPont by the name of Poulston who had
taken stainless steel bolts from DuPont" for use in building
motorcycles. Defendant also stated that plaintiff fabricated
motorcycle parts while on the job at DuPont, using its
materials. Defendant testified that, at the time he made the
call, he "hope[d]" plaintiff would be "fired" from his job
because, according to defendant, plaintiff had "lied so much"
during the prior litigation.
DuPont conducted an investigation into defendant's
charges, which plaintiff "adamantly denied." Defendant's
statements became part of a permanent DuPont record and were
disseminated to a number of DuPont employees. Eventually,
DuPont concluded that the statements were false. Also, about
the same time in an incident in a local restaurant, defendant,
in a voice loud enough to be heard by others, accused plaintiff
of being a liar and a thief.
The trial court, in the letter opinion granting
defendant's motion to set aside the verdict, discussed the
evidence about the effect the defamatory remarks had upon the
plaintiff. When learning about defendant's call to the labor
relations manager, plaintiff appeared not to take the matter
seriously, and smiled and laughed about it. Plaintiff's
witnesses testified that they did not believe defendant's
accusations and had the same high regard for the plaintiff
after the incident as before. Witnesses described plaintiff's
present reputation for honesty and integrity as "immaculate"
and as "A-1." The court pointed out, "Defendant's accusation
did not adversely affect plaintiff's employment status or cause
diminution in his salary or benefits. No evidence was
presented that plaintiff sought medical treatment or suffered
any physical or emotional injuries as a result of defendant's
actions although plaintiff testified that his fellow employees
kidded him about the matter."
The trial court reviewed pertinent cases, noted that the
defamatory statements were actionable per se, and observed that
here damages for injury to reputation were presumed, the
plaintiff not being required to show actual pecuniary loss to
recover compensatory damages. The court then ruled "that the
amount of compensatory damages awarded in this case is
shockingly excessive." The court stated that "the size of the
compensatory damage award is without support in the evidence,
and grossly in excess of the actual injuries suffered, and thus
should be reduce[d] to $1,000."
Addressing the punitive damage award, the trial court also
reviewed the applicable principles. The court said that "the
jury could have reasonably found the requisite level of malice
to justify an award of punitive damages." Nevertheless, the
court continued, the award of $25,000 was excessive, "in light
of the purpose punitive damages are to serve," that is, "to
punish the wrongdoer and deter others from committing like
offenses." The court said the award of punitive damages "bears
no reasonable relation to the real damages sustained by
plaintiff." Concluding, the court decided that "based both on
the lack of evidence of real damage suffered and the reduction
in the amount of the compensatory award, . . . the court will
reduce the amount of punitive damages to $2,500."
On appeal, the plaintiff contends the trial court erred by
remitting both the compensatory and punitive damage awards. He
asks that the court's action in ordering the remittitur be
reversed and that final judgment be entered in accordance with
the jury's verdict.
First, I shall address the issue of compensatory damages.
The applicable standard of appellate review to be applied is
critical to a resolution of this issue. The development of the
present standard in remittitur cases has an interesting
history.
Trial courts are clothed with the authority, and charged
with the duty, to correct verdicts in damage suits that plainly
appear to be unfair. Edmiston v. Kupsenel, 205 Va. 198, 202,
135 S.E.2d 777, 780 (1964). "The use of this authority is but
the exercise of the inherent discretion of the trial courts,
limited by the admonitory principle that it is the jury's
function, ordinarily, to assess damages." Id. Prior to 1976,
the manner in which the appellate court judged whether the
trial court had abused its discretion was to focus on the
jury's verdict. "The crucial question to be determined . . .
is whether there was evidence to sustain the verdict of the
jury, for if there was, then the trial court was in error in
ordering the remittitur." Id. at 203, 135 S.E.2d at 780.
In 1976, the rule was changed in Bassett, and the present
rule adopted. The basic consideration is still whether there
has been an abuse of judicial discretion. But the manner in
which this Court judges abuse of discretion was altered. From
1976 until today, the focus has been upon the award of the
trial court after the remittitur and not upon the verdict of
the jury. Until today, the important number has been the trial
judge's number, not the jury's number.
In Bassett, we affirmed a trial court's order of
remittitur. There, the standard of appellate review was at
issue. The plaintiff, seeking reinstatement of the verdict,
argued "it is the appellate function to decide whether the
jury's verdict was `excessive as a matter of law.'" Id. at
910, 224 S.E.2d at 331. The defendant, seeking affirmance of
the trial court's reduced award, argued "that the appellate
function is to determine whether the order was an `abuse of
discretion' on the part of the trial court." Id. In ruling on
the question, and quoting from Smithey v. Sinclair Refining
Co., 203 Va. 142, 148, 122 S.E.2d 872, 877 (1961), we
emphasized that the "ultimate test" in reviewing a trial
court's order of remittitur is whether judicial discretion has
been abused. Bassett, 216 Va. at 911, 224 S.E.2d at 332.
We went on to hold, however, that the manner in which this
Court judges abuse of discretion is to focus on the "recovery
after remittitur," that is, the trial judge's number and not
the jury's number. We said that when a trial judge has made a
finding of excessiveness, has ordered remittitur, and has made
"a reasoned evaluation" of the damages as shown by the
evidence, the judge's "order will not be disturbed on appeal if
the recovery after remittitur bears a reasonable relation to
the damages disclosed by the evidence. `Reasonableness' in
this context is the standard by which the exercise of
discretion must be tested in this Court." Id. at 912, 122
S.E.2d at 332.
This focus on the "recovery after remittitur" has been the
touchstone of every decision on the subject since Bassett --
until today. See, e.g., Caldwell v. Seaboard System R.R.,
Inc., 238 Va. 148, 158, 380 S.E.2d 910, 915 (1989), cert.
denied, 493 U.S. 1095 (1990) ("we cannot say the trial court's
reduction of the jury's award was unreasonable"); J.W. Creech,
Inc. v. Norfolk Air Conditioning Corp., 237 Va. 320, 329-30,
377 S.E.2d 605, 610-11 (1989); Robinson v. Old Dominion Freight
Line, Inc., 236 Va. 125, 128-29, 372 S.E.2d 142, 143-44 (1988);
Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 301, 362
S.E.2d 32, 45 (1987), cert. denied, 486 U.S. 1023 (1988) ("we
will not disturb [the trial court's] finding because `the
recovery after remittitur bears a reasonable relation to the
damages disclosed by the evidence'"); Hogan v. Carter &
Grinstead, 226 Va. 361, 372-73, 310 S.E.2d 666, 672 (1983);
Ford Motor Co. v. Bartholomew, 224 Va. 421, 436, 297 S.E.2d
675, 683 (1982) ("We believe that, in keeping with the rule in
Bassett Furniture, the trial judge made a `reasoned evaluation
of the damages' and that `the recovery after remittitur bears a
reasonable relation' to those damages"); Bunch v. State Highway
& Transp. Comm'r, 217 Va. 627, 631, 231 S.E.2d 324, 327 (1977)
("In these circumstances, the award after remittitur bears a
reasonable relation to the damages disclosed by the
evidence. . . ").
The rule in Bassett is clear. In plain words, a unanimous
Court said that our review of the exercise of the trial court's
discretion under these circumstances is limited to whether "the
recovery after remittitur bears a reasonable relation to the
damages disclosed by the evidence." The majority, professing
to focus upon the reasonableness of the recovery after
remittitur, alludes to a "determination" this Court must make
regarding whether "the verdict was excessive." It will be
remembered that the party losing the remittitur issue in
Bassett argued "it is the appellate function to decide whether
the jury's verdict was `excessive as a matter of law.'" Then,
the majority proceeds to substitute its judgment for that of
the trial court to arrive at a decision it would have rendered
had it sat at the trial level.
The precise issue in the present case, in my view, should
be whether the compensatory damage award of $1,000 bears "a
reasonable relation" to the damages disclosed by the evidence.
I conclude that the amount bears such a reasonable relation.
Of course, the plaintiff is entitled to an award of
compensatory damages that includes a sum for presumed injury to
reputation even though, as the trial court noted, there was no
proof, or inference, that the plaintiff's reputation was
diminished in any way by defendant's statements. But this
presumed injury is slight. The plaintiff's witnesses said they
did not believe defendant's accusations, and held plaintiff in
the same high esteem after learning of defendant's charges as
before. Moreover, plaintiff suffered no monetary loss,
remained employed at DuPont, incurred no diminution in wages or
fringe benefits, and continued to be held in high regard by his
superiors. Finally, plaintiff presented no evidence that he
suffered any physical or emotional injury, except for some
embarrassment sustained by good-natured joking of his friends.
See The Gazette, Inc. v. Harris, 229 Va. 1, 48, 325 S.E.2d
713, 744-45, cert. denied sub nom. Fleming v. Moore, 472 U.S.
1032 (1985). Thus, I cannot say that an award of $1,000 is
unreasonable, considering the evidence.****
Next, I shall turn to the issue of punitive damages.
Generally, the imposition of punitive damages is not favored
and, because they are in the nature of a penalty, they should
****
Citizens of the Commonwealth, especially those
supporting a family on a tight budget, will be surprised to
learn from the majority that the sum of $1,000 is "a nominal or
trivial amount."
be assessed only in cases of most egregious conduct. Owens-
Corning Fiberglas Corp. v. Watson, 243 Va. 128, 144, 413 S.E.2d
630, 639 (1992). And, the punitive damage award "should bear
some reasonable proportion to the real damages sustained and to
the measure of punishment required." Stubbs v. Cowden, 179 Va.
190, 201, 18 S.E.2d 275, 280 (1942).
The majority correctly recognizes that we must determine
whether the trial court acted "improperly." Nevertheless, they
determine that the jury's award was not "unreasonable" and is
not "an inappropriate punishment" for defendant's conduct.
This is another example of disregard for a settled standard of
appellate review.
Certainly, this defendant's conduct was egregious and
supported the finding that the statements were uttered with the
requisite malice. However, given the lack of real damages
sustained by the plaintiff and considering the sum I would
approve for compensatory damages, I cannot say, from a review
of this record, that the trial court acted "improperly" in
fixing the punitive damages at $2,500.
Consequently, I would affirm the trial court's judgment.