dissenting. I would affirm this case on appeal as I do not believe that we are justified in effectively setting aside the jury’s verdict for compensatory damages (albeit by way of remittitur) on a point not raised nor argued by either side on appeal. The point urged on appeal with respect to the verdict is that the damages are excessive, not that the instructions were improper. The majority opinion ignores our own rule, frequently applied, that the instructions must be abstracted, in order to be considered on appeal, and circumvents the rule that defamation of the present sort need not be dependent on specific evidence of pecuniary loss. The reasoning behind this cardinal principle of libel and slander is that some types of defamation are so clearly inimical to character, reputation and regard of the person defamed that injury to that person’s ability to earn a livelihood is presumed. Here there was substantial evidence the defamatory remarks not only would have such effect, but that loss of employment by the party offended was clearly intended by the appellant. Indeed, there was testimony the publication of the slander was not just at random, but was specifically repeated to persons employing the plaintiff for the avowed purpose of disrupting that relationship.
Professor Prosser defines four categories of slander which do not require proof of damages, two of which clearly cover the slander before us:
. . . courts very early established certain specific exception: the imputation of crime, of a loathsome disease, and those affecting the plaintiff in his business, trade, profession, office or calling — which required no proof of damage. The exact origin of these exceptions is in some doubt, but probably it was nothing more unusual than a recognition that by their nature such words were especially likely to cause pecuniary, or “temporal” rather than “spiritual” loss. Modern statutes and decisions have added a fourth catetory, the imputation of unchastity to a woman. For these four kinds of slander, no proof of any actual harm to reputation or any other damage is required for the recovery of either nominal or substantial damages. Otherwise stated, proof of the defamation itself is considered to establish the existence of some damages, and the jury are permitted, without other evidence, to estimate their amount. Prosser, Law of Torts, 3d Ed. Page 772, Section 107.
I find no error in the record that would justify disturbing the verdict returned in this case.
I am authorized to state that Judge Penix joins in this dissent.