Arthur E. Lancour v. Herald And Globe Association

• Decision Date: 06 October 1942
• Parties: ARTHUR E. LANCOUR v. HERALD AND GLOBE ASSOCIATION
• Court: Vermont Supreme Court

28 A.2d 396

112 Vt. 471

ARTHUR E. LANCOUR v. HERALD AND GLOBE ASSOCIATION

Supreme Court of Vermont

October 6, 1942

May Term, 1942.

Libel.---1. Motion to Set Aside Verdict.---2. Excessive Verdicts.---3. Basis of Damages in Libel Actions.---4. Evidence of Damages in Libel Actions.---5. Assumption as to Treatment of Evidence by Jury.---6. Punitive Damages in Libel Actions.---7. Malice not Pertinent to Compensatory Damages.---8. Other Publications Admissible on Issue of Malice.---9. Conditionally Privileged Publications.---10. Privileged Publications Admissible on Issue of Malice.---11. Excessive or Insufficient Damages.---12. Abuse of Discretion.

1. When a trial court grants a motion to set aside a verdict, and it does not appear whether it ruled as a matter of law or as a matter of discretion, it will be presumed on appeal, if a discretionary ground was presented, that the ruling was made as a matter of discretion.

2. The claim that a verdict is excessive, when made a separate ground for a motion to set aside, is addressed to the discretion of the trial court, and, in the absence of abuse of discretion, the court's ruling on the motion will stand.

3. Since the proximate and necessary consequence of a defamatory publication is injury to the feelings, reputation or business of the person defamed, compensation for such injury is recoverable as general damages.

4. When a defamation is actionable per se, the plaintiff may recover general damages without proof of loss or injury; but he is permitted to introduce any competent evidence showing the extent of his injury.

5. In considering a motion to set aside, it must be assumed that the jury gave to the evidence before it the greatest probative force it was legally capable of receiving.

6. Punitive or exemplary damages based on actual malice may be awarded in a defamation action.

7. In a defamation action evidence of actual malice is not to be considered by the jury in awarding compensatory damages.

8. In a libel action, for the purpose of showing actual malice publications by the defendant, either prior to that which is the basis of the action, or contemporaneous with it or subsequent to it, may be shown.

9. Newspaper accounts of judicial proceedings actually commenced are privileged, but on condition that they fairly and accurately describe the proceedings.

10. Newspaper accounts of judicial proceedings, even though privileged, are admissible on the issue of malice.

11. Where there is no legal measure of damages and they are unliquidated, to justify the interference of the trial court it must appear that the damages found are excessive or insufficient; the amount must be so great or so small as to indicate perverted judgment, accident or gross mistake.

12. When the trial court has acted upon a motion to set aside on the ground of excessive or inadequate damages, the appellate court has no discretion in its review of such action and can only revise the action of the trial court if it appears that such action is an abuse of discretion.

ACTION OF TORT for libel. Trial by jury, Rutland County Court September Term, 1941, Black, J., presiding. Verdict and judgment for the plaintiff. On defendant's motion, the verdict was set aside, and a new trial ordered.

Judgment affirmed and cause remanded.

George P. Drury and William L. Scoville for the plaintiff.

Fenton, Wing & Morse for the defendant.

Present: MOULTON, C. J. SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

BUTTLES

This is an action in tort for libel which has been here before and was reported in 111 Vt. 371. By our previous decision it was held that the liability of the defendant had been established, and the cause was remanded for trial upon the issue of damages only. The libelous publication appeared in the issue of Nov. 19, 1936, of the Rutland Herald, a newspaper published by this defendant. The article is reproduced in full at page 377 of the report above referred to and is here in evidence as Plaintiff's Exhibit No. 1. The second trial resulted in a verdict for the plaintiff for $ 2500. The issue of exemplary damages was submitted to the jury, but a special verdict was not requested or rendered and there was nothing to indicate what part of the general verdict, if any, was awarded as such damages. Prior to judgment the defendant moved to set aside the verdict and for a new trial. On Dec. 12, 1941, the court ordered that this motion would be granted unless the plaintiff, on or before Dec. 21, should remit the sum of $ 1000. from his verdict. No remittitur having been filed the court, on Dec. 29, granted the motion and ordered a new trial. On exceptions to both of the above orders the plaintiff comes to this Court before final judgment under the provisions of P. L. 2072.

The plaintiff apparently misinterprets the ruling of the court as to the nature of the motion, made at the hearing thereon. The court then said specifically: "We will treat it as a motion to set aside and motion for new trial on the question of damages only." To this the defendant's counsel assented and plaintiff's counsel made no objection. The authority of the court to order an optional remittitur as an alternative to granting such a motion in a proper case, even when the damages are unliquidated, is not questioned, and there is nothing in the ruling referred to which precluded the court from making such an order. The plaintiff contends, however, that here the evidence and the law of the case did not warrant any interference with the verdict by the court.

The defendant's motion is based upon five stated grounds each of which attacks the alleged excessive amount of the verdict. The first ground of the motion is stated thus: "That the amount of the verdict is greatly excessive and wholly unwarranted and unsupported by any evidence in the case." The other grounds of the motion are, in substance, that there is no evidence in the case fairly and reasonably tending to show that the plaintiff was entitled to punitive or compensatory damages, as defined by the court's charge, in the amount of $ 2500; that the verdict in that amount is clearly based on guess, speculation and conjecture and not upon any competent evidence in the case; that the verdict in that amount was contrary to the instruction of the court that the verdict should be fair and reasonable, based upon a consideration of all the evidence in the case; that the amount of the verdict indicates beyond question that the jury was motivated in its rendition by passion and prejudice.

The court did not state on what ground the motion was granted or whether it ruled thereon as a matter of law or a matter of discretion. Under these circumstances if a discretionary ground was presented to the court it is our rule that we will presume that the ruling was made as a matter of discretion. Parizo v. Wilson, 101 Vt. 514, 523, 144 A. 856; State v. Fairbanks, 101 Vt. 30, 34, 139 A. 918; Temple v. Atwood, 99 Vt. 434, 435, 134 A. 591; Parkhurst v. Healy's Estate, 97 Vt. 295, 296, 122 A. 895; Belock v. State Mut. Fire Ins. Co., 106 Vt. 435, 440, 175 A. 19. The claim that a verdict is excessive, at least when advanced as a separate ground for the motion, is addressed to the discretion of the trial court and its ruling thereon is not reviewable unless it appears that in its exercise that discretion was abused. Dyer v. Lalor, 94 Vt. 103, 114, 109 A. 30; Jacobs v. Loyal Protective Ins. Co., 97 Vt. 516, 527, 124 A. 848; Paska v. Saunders, 103 Vt. 204, 217, 153 A. 451; Rule v. Johnson, 104 Vt. 486, 490, 162 A. 383; Shields v. Vt. Mut. Fire Ins. Co., 102 Vt. 224, 255, 147 A. 352.

It is significant that each stated ground of the motion is based on the claim that the verdict was excessive. It is difficult to perceive how any ground not based on the amount of the verdict could have been tenable, since the issue of liability was res judicata. In this situation the question whether the court was warranted in ruling that the verdict was excessive becomes fundamental in considering whether it made a correct disposition of the motion on any ground. That a discretionary ground was here presented to the court is suggested by the language of the first clause of the first ground and by the limited scope of the trial. That the parties treated the motion as raising a discretionary question and that the court so understood and ruled appears from the record of the hearing on the motion. The plaintiff's counsel remarked that the real complaint was that the damages were too large and said: "I am willing to concede, if it can be written into the record, that this is to be regarded as a motion to reduce damages on the ground that they are excessive and on the grounds stated here." The court then made the statement quoted above that it would treat the motion as one to set aside and for new trial on the question of damages only. In acceding to this the defendant's counsel stated that "the motion is based both on the fact that there is no evidence fairly and reasonably tending to support a verdict of the size rendered by the jury." He then referred to the claimed extent of the evidence and concluded by saying: "I believe that evidence is insufficient and doesn't warrant or support a verdict of this size."

Since the proximate and necessary consequence of a defamatory publication is injury to the feelings, reputation or business of the person defamed, compensation for such injury is recoverable as general damages. 33 Amer. Jur. 193, Sec. 204; Scott v. Times-Mirror Co., 181 Cal. 345 184 P. 672, 12 A.L.R. 1007, 1021; Craney v. Donovan, 92 Conn. 236, 102 A. 640, L.R.A. 1918C, 96, 98. When the defamation is actionable per se the plaintiff can recover general damages without proof of loss or injury, which...