Poulston v. Rock

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.