Great Coastal Exp., Inc. v. Ellington

• Decision Date: 06 September 1985
• Docket Number: No. 822256,822256
• Citation: 230 Va. 142,334 S.E.2d 846
• Parties: , 12 Media L. Rep. 1100 GREAT COASTAL EXPRESS, INC. v. Robert Woodrow ELLINGTON. Record
• Court: Virginia Supreme Court

Page 846

334 S.E.2d 846

230 Va. 142, 12 Media L. Rep. 1100

GREAT COASTAL EXPRESS, INC. v. Robert Woodrow ELLINGTON.

Record No. 822256.

Supreme Court of Virginia.

Sept. 6, 1985.

James M. Minor, Jr., Richmond (Ronald E. Kuykendall, Minor & Lemons, P.C., Richmond, on briefs), for appellant.

Joseph C. Russell, Richmond, for appellee.

Present: All the Justices.

RUSSELL, Justice.

This is an appeal from a judgment awarding both compensatory and punitive damages for defamatory words to a plaintiff who was neither a public official nor a public figure against a defendant which was unconnected with the news media. The substance of the alleged defamation involved no matters of public concern. We must consider under what circumstances, in such cases, damages may be presumed, privilege may be a defense, and such a privilege may be lost.

Robert Woodrow Ellington was employed as a truck driver by Great Coastal Express, Inc., a trucking concern with offices in Richmond. Ellington made an average of ten trips per month for Great Coastal and was paid an average of $200 per trip. Prior to the occasion complained of he was an employee in good standing, but there was evidence from which the jury could infer that he was suspected by Great Coastal's management of seeking to persuade his fellow drivers to join a union.

Great Coastal had scheduled a regular meeting of its road drivers to be held in Richmond on Saturday, September 5, 1981. Earlier that week, Ellington and several of his fellow drivers met at a restaurant in Annapolis, Maryland, and had a general discussion of various matters of concern to the drivers, including the advantages of a union and other subjects to be raised at the September 5 meeting. Great Coastal employed a private detective who was present in the Annapolis restaurant. He managed to overhear some of the drivers' discussion and reported its substance to the management of Great Coastal.

Great Coastal's trucks were equipped with "governors" which limited maximum speed. These were a source of frequent complaint by the drivers, who wished to increase the available speed. Great Coastal's regulations prohibited any alteration of company equipment, and copies of these rules had been given to all its drivers, including Ellington.

On Friday, September 4, after returning from a trip, Ellington asked Joseph Kovacs, Great Coastal's shop foreman, to increase the "r.p.m.'s" on his truck. He told Kovacs that the "r.p.m.'s" were set too low, that they could be increased without any effect on fuel consumption, and that he would tell no one if Kovacs made the change. Kovacs refused, saying that he was bound by the company's specifications. This ended the discussion, but Kovacs reported it to his supervisor.

Later that day, Great Coastal's general manager asked Ellington about the Annapolis meeting. During their conversation, Kovacs' shop supervisor entered the room and said, "[W]hat is this I hear about you trying to bribe Joe Kovacs into turning the truck up?" Ellington denied any attempt to bribe Kovacs. He was told, "take your stuff out of your truck" and not to attend the drivers' meeting on September 5.

At the September 5 meeting, which Ellington did not attend, a Great Coastal supervisor addressed the assembled drivers concerning the company's policy with respect to "r.p.m." settings. He said, "[Y]esterday a driver tried to bribe one of my mechanics to turn his truck up, and he is no longer with us." After the meeting, several drivers asked the supervisors who had been fired and were told that Ellington was the driver referred to.

On September 8, Ellington, accompanied by his wife, went to Great Coastal's office to inquire concerning his employment. The general manager told him he had been terminated "because he attempted to bribe Joe Kovacs to change the 'r.p.m.'s.' " Mrs. Ellington asked if he wanted to use the word "bribery." The manager replied that he would "write it down" if she wanted him to.

Ellington brought this action against Great Coastal for defamation. A three-day jury trial resulted in a verdict for Ellington in the amounts of $20,000 compensatory damages and $50,000 punitive damages, the full amounts sued for. At trial, neither Ellington nor Kovacs, the sole witnesses to the conversation between them, testified to any effort to bribe, and Great Coastal offered no other evidence of bribery. Ellington testified that he was still unemployed and had made about forty good-faith but unfruitful applications for work since Great Coastal discharged him. He did not contend that his reputation had been injured, but testified, "I feel like I've been embarrassed and humiliated." The court entered judgment on the verdict, and we granted Great Coastal an appeal.

I. Words Actionable Per Se.

Great Coastal argues that the court erred in instructing the jury that, because "commercial bribery" is a crime in Virginia, ¹ the words allegedly spoken were slanderous per se and that damages for embarrassment and humilitation would be presumed without proof of pecuniary loss.

At common law, defamatory words which are actionable per se are:

(1) Those which impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished.

(2) Those which impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society.

(3) Those which impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment.

(4) Those which prejudice such person in his or her profession or trade.

All other defamatory words which, though not in themselves actionable, occasion a person special damages are actionable.

Fleming v. Moore, 221 Va. 884, 889, 275 S.E.2d 632, 635 (1981). (Because Fleming came before us a second time as a part of The Gazette v. Harris, hereinafter cited the first Fleming case will be referred to as Fleming I.)

Great Coastal, citing Restatement (Second) of Torts § 571 (1976), argues that in order to fall within the first category of words actionable per se, above, the words must impute a crime which is either "punishable by imprisonment in a state or federal institution" or "regarded by public opinion as involving moral turpitude."

Because "commercial bribery" is not punishable by imprisonment of any kind, Great Coastal focuses upon the question whether the offense is one which is regarded in public opinion as involving moral turpitude. Great Coastal points out that the offense was unknown at common law and that any question of its relative seriousness in the public perception is an issue of fact for the jury, not properly determined by the court. ²

In characterizing misdemeanors for the purpose of determining whether they may serve as the basis for impeachment of witnesses, we have defined a crime involving moral turpitude as " 'an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.' " Tasker v. Commonwealth, 202 Va. 1019, 1024, 121 S.E.2d 459, 463 (1961) (quoting Parr v. Commonwealth, 198 Va. 721, 724, 96 S.E.2d 160, 163 (1957)). We specifically held in Bell v. Commonwealth, 167 Va. 526, 538, 189 S.E. 441, 447 (1937), that the question whether a misdemeanor involved moral turpitude was to be determined by the trial judge rather than by the jury. Similarly, we have not hesitated to resolve the question on appeal as a matter of law. Id. at 538, 189 S.E.2d at 447 (petty larceny involves moral turpitude); C. & O. Ry. Co. v. Hanes, Adm'r., 196 Va. 806, 813, 86 S.E.2d 122, 126 (1955) (making false statement to obtain unemployment benefits involves moral turpitude); Pike v. Eubank, 197 Va. 692, 700, 90 S.E.2d 821, 827 (1956) (drunkenness and illegal possession of liquor do not); Burford v. Commonwealth, 179 Va. 752, 766, 20 S.E.2d 509, 514 (1942) (assault and battery does not); Parr, 198 Va. at 725, 96 S.E.2d at 164 (gambling does not); Tasker, 202 Va. at 1025, 121 S.E.2d at 463-64 (contributing to the delinquency of a minor may or may not involve moral turpitude, depending on facts shown by record on which conviction was based).

It is difficult, if not impossible, to prove with mathematical precision the quantum of damages for injury to reputation, humiliation, and embarrassment which may flow from a defamation. For this reason, the common law, as early as 1670, modified the usual standard of proof of damages in those cases where the words uttered were actionable per se. Dun & Bradstreet, Inc. v. Greenmoss Builders, --- U.S. ----, ----, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). In determining whether allegedly defamatory words impute a crime involving moral turpitude, so as to be actionable per se, the trial court must make a determination characterizing the imputed crime as a matter of law. In so doing, the court's ruling is similar to that which must be made to characterize misdemeanors for purposes of impeachment. We do not agree with Great Coastal's contention that the determination whether the imputed crime involves moral turpitude should be left to the jury's determination.

In making such a ruling, the trial court is in a better position than the jury to determine whether the imputed offense is malum in se or malum prohibitum, to review any common-law or legislative history of the offense, and to consider the punishment prescribed and the nature of other offenses with which it may be grouped in the statutory scheme. In this last regard, it was apparent to the trial court that the offense of "commercial bribery" has been included in Title 18.2, ch. 10 of the Code, entitled "Crimes Against the Administration of Justice." The first article of that chapter is captioned "Perjury." The second ...