Bobenhausen v. Cassat Ave. Mobile Homes, Inc., BB--468

• Decision Date: 01 April 1977
• Docket Number: No. BB--468,BB--468
• Citation: 344 So.2d 279
• Parties: August L. BOBENHAUSEN, Appellant, v. CASSAT AVENUE MOBILE HOMES, INC., et al., Appellees.
• Court: Florida District Court of Appeals

Page 279

344 So.2d 279

August L. BOBENHAUSEN, Appellant, v. CASSAT AVENUE MOBILE HOMES, INC., et al., Appellees.

No. BB--468.

District Court of Appeal of Florida, First District.

April 1, 1977.

Rehearing Denied April 26, 1977.

David C. Goodman, Jacksonville, for appellant.

James N. Watson, Jr. and Donald W. Matthews, Jacksonville, for appellees.

ERVIN, Judge.

This is an appeal by plaintiff Bobenhausen from an order of remittitur reducing a jury verdict of $80,000.00 to $40,000.00. Charles Boucher, the defendant-appellee, is the owner of Cassat Avenue Mobile Homes, Inc. and employed Bobenhausen as sales manager in October, 1973; approximately even months later Bobenhausen's employment was terminated. Boucher claims he fired Bobenhausen. Bobenhausen states that he left voluntarily because Boucher was cheating him on his commissions. Sometime later Bobenhausen sought employment with one Gil Sousa, the owner of another mobile home retail sales company. Sousa tentatively agreed to pay Bobenhausen a salary of $1,500.00 per month, plus 3% Of the gross income, which was at that time between $300,000.00 and $400,000.00 annually. However, when Sousa sought prior employer references, he was told by Boucher that Bobenhausen was a 'thief and a crook' who 'stole him blind.' Based upon this information Sousa decided not to employ appellant. Bobenhausen testified that he never heard from several other unnamed prospective employers after being required by them to identify his previous employer. In July, 1974, Bobenhausen purchased Ryle and Company, a mobile home retail company and entered into a financing agreement with Finance America, Inc. He was initially extended $25,000.00 credit for floor plan financing and retail sales financing. He also obtained additional financing through Ryle's former bank, the Normandy Atlantic. Late in 1974, he attempted to extend his credit at both institutions. The Normandy bank refused such credit without obtaining a character reference and the Finance America Company terminated its business with Bobenhausen after receiving a credit report which stated:

'Prior to purchasing this business, Mr. Bobenhausen was employed with Cassat Avenue Mobile Homes as general manager, but this employer states he was discharged due to his stealing from the company.'

Bobenhausen then brought an action for slander alleging that his name and reputation had been injured by Boucher's statements, seeking both compensatory and punitive damages. The Bouchers counterclaimed alleging that Bobenhausen made misrepresentations on their contracts by listing items of extra equipment such as air conditioners which were not installed in mobile homes, to their damage.

At the conclusion of the trial the jury returned a verdict in favor of Bobenhausen for $30,000.00 compensatory damages and $50,000.00 punitive damages. The Bouchers filed a motion for new trial alleging, inter alia, that the verdict was excessive both as to compensatory and punitive damages since there was a lack of competent evidence submitted to the jury to support the verdict and that the verdict could only be arrived at through conjecture or passion. The court thereupon entered its order of remittitur in the amount of $40,000.00.

The Bouchers argue that there must be some reasonable relationship between proof of the amount of compensatory damages to the amount of punitive damages and where compensatory damages are not clearly and fully shown so as to be ascertained with reasonable certainty, a judgment on a verdict in excess of the damages properly recoverable will be reversed for a new trial, citing Florida East Coast R. Co. v. Peters, 77 Fla. 411, 83 So. 559 (1919), and Hutchinson v. Lott, 110 So.2d 442 (Fla.1st DCA 1959). They rely upon Hutchinson for the rule that punitive damages may not be awarded unless actual damages are shown.

In determining the types of compensatory damages recoverable in a defamation suit, Florida law recognizes two classes: general and special. General damages are those which the law presumes must naturally, proximately and necessarily result from publication of the libel or slander. They are allowable whenever the immediate result is to impair the plaintiff's reputation, although no actual pecuniary loss is demonstrated. 20 Fla.Jur. Libel and Slander sections 6, 88. Words which are actionable in themselves, or per se, necessarily import general damages and need not be pleaded or proved but are conclusively presumed to result. Moreover malice is presumed as a matter of law from the publication of such words. Ibid.

Special damages do not result by implication of law from a wrongful publication and, unlike general damages, must be specially pled. It is necessary for a plaintiff to show his special damages proximately resulted from the defamation. Ibid. at section 111.

Spoken words falsely imputing a criminal offense to another are actionable per se. E.g., Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906); Tip Top Grocery Co. v. Wellner, 135 Fla. 518, 186 So. 219 (1938). Clearly then the statement made by Boucher to another that Bobenhausen was a 'thief and a crook' who 'stole him blind' was slander per se, if false. The jury has concluded that question to the Bouchers' detriment and there is no issue before us that it was not false.

Aside from the issue of whether special damages were established with reasonable certainty, we are of the view that since the plaintiff established by the greater weight of the evidence the Bouchers' statements were (1) false and (2) actionable per se, he need not show any proof of monetary loss to be entitled to recover punitive damages.

In the case below, Bobenhausen, as did Mrs. Firestone in Firestone v. Time, Inc., 305 So.2d 172 (Fla.1974), stated in his complaint that his reputation had been damaged as a result of the defamations. In Time, the Court held that words which falsely accuse a woman of adultery are libelous per se and that a plaintiff need not allege or prove general or special damages. ¹ As Justice Powell observed in his majority opinion in Gertz v. Welch, 418 U.S. 323, 349, 94 S.Ct. 2997, 3011, 41 L.Ed.2d 789 (1974):

'Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof such harm actually occurred.'

Continuing at 418 U.S. at 350, 94 S.Ct. at 3012:

'Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation and mental anguish and suffering.'

We reject the Bouchers' argument that it is necessary before a plaintiff recover punitive damages that the amount of pecuniary loss be determined to a reasonable certainty. ² The general rule is that in libel actions, even though no special damages may have been proven, a plaintiff may still recover punitive damages upon a showing that the publication was made for malice or ill-will toward him. 20 Fla.Jur. Libel and Slander section 90. The Third District Court of Appeal has recently held that where a defamation is actionable per se, punitive damages may be awarded even though the amount of actual damages is not shown, for in such situations the requirement of a showing of actual damages is satisfied by the presumption of injury which arises merely from a showing of such defamation. Saunders Hardware Five and Ten, Inc. v. Low, 307 So.2d 893 (Fla.3rd DCA 1974). ³

In Hutchinson v. Lott, supra, a judgment for $115.00 compensatory damages and $5,000.00 punitive damages based upon an action for assault was reversed. This court stated that in all actions for tort the jury is authorized to inflict punitive damages where (1) actual or compensatory damages are shown, and (2) malice, moral turpitude, wantonness or outrageousness accompanies the wrong committed. The opinion continued that while punitive damages may not be recovered unless actual damages are shown, the relationship of punitive damages to actual damages cannot be reduced to a mathematical certainty and is dependent upon the facts of each case. We feel the language employed by this court in Hutchinson is much too broad and is inapplicable to libel and slander cases which may be actionable per se. We specifically recede from any language in Hutchinson which suggests that in a per se defamation action, actual damages must be shown as a condition precedent to the recovery of punitive damages.

Since we are of the opinion that punitive damages may be awarded independent of proof of compensatory damages, the only question remaining is whether the aggravated damages awarded in the verdict were excessive. The answer depends upon (1) whether Bobenhausen adequately established malice resulting from the publication and (2) whether he adequately established special damages to support the amount of punitive damages returned by the jury. The purpose of punitive damages is not to compensate but only to serve as a deterrent to others inclined to commit a similar offense. They are characterized as an allowance for malice, moral turpitude, wantonness, or outrageousness in the commission of the tort. Moreover the amount of compensation for libel or slander may be affected by the circumstances in which the defamation was...