Lawrence v. Jewell Companies, Inc., 274

• Decision Date: 01 February 1972
• Docket Number: No. 274,274
• Citation: 193 N.W.2d 695,53 Wis.2d 656
• Parties: Henry R. LAWRENCE, Respondent, v. JEWELL COMPANIES, INC., a foreign corp., David Theisen, Appellants, Kenneth Trehey and Gary Williams, Defendants.
• Court: Wisconsin Supreme Court

Page 695

193 N.W.2d 695

53 Wis.2d 656

Henry R. LAWRENCE, Respondent, v. JEWELL COMPANIES, INC., a foreign corp., David Theisen, Appellants Kenneth Trehey and Gary Williams, Defendants.

No. 274.

Supreme Court of Wisconsin.

Feb. 1, 1972.

The plaintiff Henry R. Lawrence commenced this action to recover for slander against the defendants Jewell Companies, Inc. (Jewell), David Theisen, Kenneth Trehey, and Gary Williams. He alleged Jewell, through its agents Theisen, Trehey and Williams, made false and defamatory statements about him. Lawrence was employed by Jewell as a salesman until his discharge in April of 1968 and the alleged statements were to the effect he had overcharged his customers, juggled his books, and stole from his customers and from Jewell. The complaint alleged, as a result of these false statements, Lawrence had been unable to obtain steady employment, had been nervous and upset, and required medical treatment.

The case was tried to a jury, but before submitting the case, the court ruled as a matter of law the statements of Trehey and Williams, which were made to other employees of Jewell, were conditionally privileged. Only questions concerning the liability of Jewell and Theisen were submitted and in the special verdict the jury found Theisen made the statements alleged, that the statements were not true, that he had made the statements in the scope of his employment, and that he abused any conditional privilege he might have had. The jury awarded Lawrence compensatory damages of $25,000 and punitive damages of $1,500. The defendants Jewell and Theisen made six motions after verdict, all of which were denied, either expressly or deemed overruled because they were not decided within two months of the date of the verdict (sec. 270.49, Stats.). Judgment was entered on the verdict on November 27, 1970, and from this judgment, Jewell and Theisen appeal.

Johns, Flaherty, Harman & Gillette, La Crosse, for appellants.

Hale, Skemp, Hanson, Schnurrer & Skemp, Joseph J. Bartl, La Crosse, for respondent.

HALLOWS, Chief Justice.

The court instructed the jury that the plaintiff might be entitled to compensatory damages for actual injury to his reputation, feelings, credit standing, and for loss of income caused by the slanderous remarks. This instruction in effect is recommended by Wis.J.I.--Civil 2516. However, it is claimed there was no evidence to sustain any damage to credit standing and financial loss and, therefore, the instruction was erroneous for including these items of damages. We agree. Instructions should be tailored to fit the evidence. Civil Instruction 2516 includes both general damages which require no proof and special damages which do.

Theisen's slanderous remarks were made on three occasions, once in mid-April of 1968 when Theisen stated to Mr. and Mrs. Potaracke at their home in La Crosse in the presence of Lawrence that Lawrence was a crook, had stolen money from customers and from Jewell, and had been overcharging his customers. Two weeks later. Theisen again told the Potarackes, who were former customers of Lawrence, that Lawrence had stolen $10,000. In late April of 1968, Theisen told a Mrs. Wood, who had been a customer of Lawrence, that Lawrence had cheated both his customers and Jewell and he had overcharged his customers. Mrs. Wood communicated this statement to her husband and to Lawrence. The statements, being slanderous per se, obviously harmed Lawrence's reputation.

Lawrence testified that the knowledge of these accusations made him nervous and upset. While he admits he was taking tranquillizers before Theisen's remarks and did not see a doctor after the remarks were made, his wife stated his health definitely deteriorated after he heard Theisen's statements and he was also unable to sleep or to relax.

The evidence as to loss of income or of employment opportunities is not so clear. Lawrence testified he was unable to find other employment for about six months. He then worked for about a year selling hosiery but was suddenly discharged by his employer with no explanation. He contacted at least a dozen prospective employers and while initially he received favorable responses from some of them, he was ultimately turned down without any explanation. In one instance, Jewell wrote to the manager of a servi-soft water conditioning company in a reply to a request for Lawrence's employment background that Jewell preferred not to make any statements and recommended a call or a personal visit. Because of the tenor of this reply, the manager did not want to hire Lawrence. The record is devoid of any direct evidence that a slanderous statement was made to a prospective employer. It is claimed Lawrence lost retirement benefits, but such damage is not a result of the slanderous statements made by Theisen. Such loss might be proper in an action for wrongful discharge but not for slander on these facts. Nor is there any direct testimony in the record relating to loss of credit standing.

While it is claimed the evidence of damage is not sufficient in respect to feelings and reputation, the law does not...