Joseph v. Elam

• Decision Date: 22 April 1986
• Docket Number: No. 49377,49377
• Parties: 32 Ed. Law Rep. 827 Larry E. JOSEPH, Plaintiff-Respondent, v. Lawrence ELAM, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 517

709 S.W.2d 517

32 Ed. Law Rep. 827

Larry E. JOSEPH, Plaintiff-Respondent, v. Lawrence ELAM, Defendant-Appellant.

No. 49377.

Missouri Court of Appeals,

Eastern District,

Division Three.

April 22, 1986.

Motion for Rehearing and/or Transfer Denied May 20, 1986.

Joel Eisenstein, St. Charles, for plaintiff-respondent.

Rollings & Gerhardt, Eric O. Stuhler, St. Charles, for defendant-appellant.

SIMON, Judge.

Lawrence Elam, defendant, appeals from a judgment entered pursuant to the jury's verdict in favor of Larry E. Joseph, plaintiff, in a slander action in the Circuit Court of St. Charles County. The judgment was for actual damages of $3000 and punitive damages of $500. Pursuant to defendant's motion for judgment notwithstanding the verdict or in the alternative for a new trial, the trial court found there was insufficient evidence for the punitive damages and struck the punitive damages award, but overruled the motions on all other points. Plaintiff did not appeal.

On appeal, defendant raises ten points of error: 1) the judgment was against the weight of credible evidence; 2) the damage awards were unsupported by the evidence; 3) the trial court erred in allowing evidence of special damages which were not pleaded; 4) the trial court erred in refusing to allow testimony concerning a witness's inability to hear; 5) the trial court erred in failing to declare a mistrial where plaintiff's counsel informed the jury during voir dire of an incorrect burden of proof; 6) similarly, the trial court erred in its refusal to grant a mistrial when plaintiff's counsel injected the issue of settlement offers and offers of compromise; 7) the trial court erred in giving instructions which did not constitute the law of the case and did not follow the requirements of MAI; 8) the trial court erred in submitting an improper verdict directing instruction; 9) the trial court erred in submitting a punitive damages instruction; and 10) the trial court erred in its submission of the actual damages instruction. We affirm.

We review the evidence in a light favorable to the verdict. Dr. Robert Johns, the president of Lindenwood College in St. Charles, Missouri, was placed on a leave of absence on August 23, 1982. On that day, a memorandum signed by Robert Hyland, chairman of the college's board of directors, was distributed to all employees of the college stating that defendant, Lawrence Elam, Vice President for Finance, and Dr. Aaron Miller, Dean of the Faculty, would assume the president's responsibilities. Plaintiff, Larry E. Joseph, was Dean of Students from July, 1981 until he was discharged in November, 1982. On August 26, 1982, plaintiff was relieved of certain responsibilities, which were placed under defendant's supervision.

The statement, which is the subject of this action, was made at a dinner meeting on September 27, 1982. Dr. Miller was scheduled to meet on that evening with Howard Hamilton, a consultant. On the following day, Mr. Hamilton was to give a report to the Board of Directors of Lindenwood College concerning his firm's feasibility study for a major fund raising campaign. Prior to the scheduled dinner meeting, Dr. Miller found he had a conflict, so he asked defendant if he would meet with Hamilton. Walter Hundley, the Director of Development of the college, asked defendant why he was not invited to the meeting with Hamilton since Hundley's responsibilities entailed primarily fund raising. Defendant responded that Hundley was welcome to come. Defendant testified that the purpose of the meeting was to explain the arrangements concerning the board meeting the next day and as a courtesy, to take Mr. Hamilton to dinner.

Hundley met Hamilton at his hotel on the evening of September 27, 1982, and shortly thereafter defendant met them and they went to dinner. The three men sat in a booth in the restaurant with defendant directly across the table from Hundley on the aisle side of the booth. Hamilton was sitting next to defendant, and on the other side of Hamilton was a partition. Hundley testified that during the dinner meeting defendant stated, "Were you aware that Dean Joseph was an ex-convict and served time in a federal penitentiary?" Although Hundley had a hearing loss of about forty percent in his left ear and ten percent in his right ear, he testified this did not in any way affect his ability to hear defendant make the statement. Hundley believed that the statement was made loud enough for Hamilton to have heard it, but he saw no direct response to the statement from Hamilton. Hamilton testified that he may have heard something regarding a state or federal penitentiary or another type of incarceration, but that it did not register with him because his mind was preoccupied with the report that he was going to give the following day. Hamilton also testified that Hundley did not appear to have a hearing problem. Defendant denied making any statements indicating that plaintiff was ever incarcerated or an ex-convict. However, defendant admitted referring to a number of administrators of the college and their status, including the fact that plaintiff had been relieved of certain of his responsibilities. The dinner meeting lasted a couple of hours, and there was no evidence that any of the three men were intoxicated. Within the next day or two, Hundley told plaintiff about defendant's statement. Hundley also told other staff members of the college when plaintiff was not present. Hundley and Hamilton did not testify in person. Their depositions were accepted into evidence without objection.

Plaintiff testified that he was not an ex-convict and had never been convicted of a felony or a misdemeanor. He also testified that after September 27, 1982, his interaction with the college community ceased. He was not invited or asked to attend meetings and his phone calls virtually stopped. Plaintiff maintained at trial that the statement contributed to his dismissal from the college in November, 1982. He stated that he had not been disciplined, reprimanded or counseled in any fashion by anyone including the board of directors prior to September 27, 1982, and that he had not been warned or advised prior to his dismissal that his job was in jeopardy. In addition, he testified concerning the improvements and contributions he felt he made to the college. The termination letter he received in November, 1982, stated he was terminated for cause, but plaintiff testified he was never informed as to what constituted cause.

Plaintiff's principal witness, Walter Hundley, was also fired from his position with Lindenwood College in the first part of November, 1982. He testified he held a slight grudge against defendant because he believed that his speaking honestly about defendant's statement was indirectly related to his dismissal. He also stated that on the night of the dinner meeting, defendant falsely accused him of cheating on his expense accounts. Hundley and plaintiff had a social relationship which included going to restaurants and bars and playing golf and gin rummy together. Sometime in 1982 plaintiff had threatened Hundley, and Hundley admitted he may have been somewhat afraid of plaintiff after the threat was made. Hundley also admitted he was hospitalized for depression in the early part of 1982. He stated he was treated with drugs and shock treatments, was completely cured, and had not seen a doctor for similar treatment since his release from the hospital around April of 1982. Although the treatments affected his memory prior to being hospitalized, he testified that his memory was not impaired at the time of the dinner meeting or afterwards.

There was also evidence that plaintiff had disciplined defendant's son when he was a student at the college, that defendant and plaintiff had a strained relationship, and that defendant informed the college's board of directors that he had problems with plaintiff. Other pertinent facts will be related in the disposition of defendant's points.

In his first point, defendant contends that the trial court erred in not sustaining his motions for directed verdict and judgment notwithstanding the verdict, because the judgment is against the weight of credible evidence. He argues that Walter Hundley, the only witness that heard and remembered the alleged defamatory remark, was not credible. Howard Hamilton, the only other person present at the time of the remark, did not remember hearing the statement, and he had no interest or bias in the outcome of the lawsuit. Defendant argues that the judgment is against the weight of credible evidence because it reflects passion for a fired employee with a family and prejudice towards a college administration that was forced to make such a decision.

Reviewing a jury verdict, we do not determine the credibility of the witnesses, resolve conflicts in testimony, or weigh the evidence. Fowler v. Daniel, 622 S.W.2d 232, 236 (Mo.App.1981). It is the particular province of the jury, and of the trial judge on post trial motions to pass on the weight of the evidence and the credibility of the witnesses. Thompson v. Healzer Cartage Co., 287 S.W.2d 791, 792 (Mo.1956). Here, the jury apparently found that Hundley's testimony was credible. Even though the jury did not have an opportunity to see Hundley or Hamilton testify in person, the jury had the opportunity to view the other witnesses and weigh the evidence. Even when the evidence is presented in deposition form, we do not substitute our determination for that of the trial court. Hill v. Stealey, 153 S.W.2d 813, 816 (Mo.App.1941). Defendant's contention is without merit.

In his second point, defendant contends that the trial court erred in overruling his motions for directed verdict and judgment notwithstanding the verdict, because plaintiff's actual damage award in the amount of $3,000 did not have evidentiary support. He argues that the evidence in the case showed that the loss of the plaintiff's...