Holtzscheiter v. Thomson Newspapers, Inc.

CHANDLER, Acting Associate Justice:

I respectfully dissent in part.

Initially, I am in agreement with the majority’s thorough discussion of defamation law in general. This discussion clarifies some of the difficult common law and constitutional concepts related to the law of defamation in this State.

In addition, I concur with the majority’s finding of “no reversible error on this record in the trial judge’s denial of the newspaper’s directed verdict motion on liability.” As pointed out by the majority, most of the arguments raised by the newspaper on this issue are not preserved for appellate review because they were not raised to and ruled on by the trial judge. I also agree with the majority that those arguments preserved for review are without merit.

Further, I agree the trial judge erred in denying the newspaper’s directed verdict motion on the issue of punitive damages. There is no evidence the newspaper either knew the article was false or had serious reservations about its truthfulness when the article was prepared and published.

*535I disagree, however, with the majority’s ultimate conclusion that the case should be remanded for a new trial.

Citing Sanders v. Prince, 304 S.C. 236, 403 S.E.2d 640 (1991), the majority holds that the proper relief in this case is a new trial absolute because, in part, the punitive damage award rendered by the jury was excessive. However, if the punitive damage award is stricken, as the majority holds it should be, I fail to see why a new trial is required when the actual damage award is not, in my opinion, so shockingly disproportionate to the injuries as to indicate that the jury acted out of passion, caprice, prejudice, or other considerations not founded on the evidence. Indeed, the majority makes no finding that the actual damage award was excessive.1

In its opinion, the majority also finds that “the parties were denied a fair trial as the result of the confusion generated by [this Court’s] decision in Holtzscheiter I.” I disagree. Although the Holtzscheiter I opinion is not as detailed on the law of defamation as the majority’s opinion in this case, the Holtzscheiter I opinion is not confusing. It merely holds that because proof of special damages was not required, the original trial judge erred in granting the newspaper’s motion for a directed verdict on the defamation action.2

I also disagree with the majority’s interpretation of Holtzscheiter T s finding as to whether the statement at issue was defamatory per se or defamatory per quod. In my opinion, it is clear the majority opinion in Holtzscheiter I found that the statement was defamatory per se.

*536As the majority points out in the case at hand, “[if] the defamatory meaning of a message or statement may be obvious on the face of the statement ... the statement is defamatory per se.” (emphasis supplied). The majority opinion in Holtzscheiter I stated: “Although ambiguous, the newspaper article could be read, on its face, to charge Holtzscheiter with failing to support her daughter by not encouraging her to continue her education.” (emphasis supplied). 306 S.C. at 301, 411 S.E.2d at 666. Consequently, the majority in Holtzscheiter I found the statement to be defamatory per se.3

In summary, I would affirm the jury’s award of actual damages but reverse the award of punitive damages.

MOORE, J., concurs.

. In Sanders, the Court held that a new trial on all issues was required because "[t]he measurement of [punitive] damages necessarily depended] on the jury’s view of the facts giving rise to liability,” and that "in fairness to all parties ... these issues should be tried together before the same fact-finder.” Id. at 239, 403 S.E.2d at 642. Not so in the case at hand. Here, if the punitive damage award is stricken, the "measurement of punitive damages” is no longer an issue which would require a new trial absolute.

. The opinion also holds (1) the trial judge did not err in granting a directed verdict on the action for intentional infliction of emotional distress, and (2) evidence of how others may have perceived the statement was admissible.

. In my opinion, the fact that a statement is "ambiguous” does not preclude the statement from being defamatory per se. For example, the statement "A’s son is a thief” is defamatory per se. However, if A has more than one son, the statement is also ambiguous.