Lemnah v. American Breeders Service, Inc.

• Citation: 144 Vt. 568,482 A.2d 700
• Decision Date: 29 June 1984
• Docket Number: No. 82-126,82-126
• Parties: , 38 UCC Rep.Serv. 1558 Paul R. LEMNAH v. AMERICAN BREEDERS SERVICE, INC., Frederick Buschner and Bruce Bonesteel.
• Court: United States State Supreme Court of Vermont

Page 700

482 A.2d 700

144 Vt. 568, 38 UCC Rep.Serv. 1558

Paul R. LEMNAH v. AMERICAN BREEDERS SERVICE, INC., Frederick Buschner and Bruce Bonesteel.

No. 82-126.

Supreme Court of Vermont.

June 29, 1984.

Michael R. Gadue, Burlington, for plaintiff-appellee.

Michael B. Clapp of Dinse, Allen & Erdmann, Burlington, for defendant-appellant.

Before BILLINGS, C.J., HILL, UNDERWOOD, and PECK, JJ., and LARROW, J. (Ret.), Specially Assigned.

UNDERWOOD, Justice.

Defendant American Breeders Service, Inc. appeals from a judgment holding it liable to plaintiff for breach of contract and invasion of privacy. The other named defendants were dismissed as parties defendant by the trial court. Those rulings are not before us on appeal. Judgment was entered on a general jury verdict that awarded plaintiff $10,000 in compensatory damages and $60,000 in punitive damages.

After the plaintiff rested, defendant moved for directed verdicts on the breach of contract action, on the invasion of privacy action and on damages. The trial court denied these motions. Defendant moved for judgment notwithstanding the verdict or a new trial after the jury returned its verdict. The record indicates that the defendant failed to renew its motion for a directed verdict at the close of all the evidence, as required by V.R.C.P. 50(b) as a prerequisite to move for judgment notwithstanding the verdict. Thus, defendant apparently did not preserve for appellate review the trial court's denial of its motion for judgment notwithstanding the verdict. Palmisano v. Townsend, 136 Vt. 372, 375, 392 A.2d 393, 395 (1978). We note, however, that the defendant challenged the sufficiency of the evidence on the invasion of privacy action during the in-chambers charge conference after the defendant rested. The defendant did not object to the substantive law regarding invasion of privacy embodied in the court's instructions, but argued that there was not enough evidence for that issue to go to the jury. In response, the court said, "And so we'll deny your motion at this point." It seems clear to us that the defendant was arguing a motion for directed verdict on the invasion of privacy action. Although never articulated as a motion, it seems equally clear that the court treated it as such. Thus, we will consider defendant's argument that the trial court erred in not granting its motion for judgment notwithstanding the verdict for the invasion of privacy action only; the contract and damages portion of the motion for judgment notwithstanding the verdict were not preserved for our review.

We must, therefore, look to see what issues were raised in defendant's motions for directed verdict at the close of plaintiff's case; those rulings are preserved for our review. In addition to challenging the sufficiency of the evidence for the invasion of privacy action, defendant moved for a directed verdict on the issue of breach of contract and damages for breach of contract, after the plaintiff rested. There was no motion for directed verdict regarding punitive damages at the end of plaintiff's case or at the close of all of the evidence. Defendant first challenged punitive damages by motion for judgment notwithstanding the verdict. Thus, that issue is not preserved for review. Palmisano v. Townsend, supra.

The facts necessary for determination of this appeal follow. We will view the evidence in the light most favorable to the plaintiff, excluding modifying evidence. Vermont National Bank v. Dowrick, 144 Vt. 504, ---, 481 A.2d 396, 399 (1984). Plaintiff and defendant entered into a written contract in August of 1961 under which the plaintiff would be a distributor and representative salesperson of defendant. Defendant produces and markets bovine semen for sale nationally through local sales representatives, called "distributors." Plaintiff was a distributor of defendant's bovine semen for Addison and Grand Isle counties in Vermont. Plaintiff also marketed services, such as artificial insemination of cows, independently of the contract with defendant. A provision of the contract, term 11(c), provided that "This agreement may be terminated ... by [defendant] without notice should any balance due by Distributor [plaintiff] hereunder not be received by [defendant] within 30 days from the discount date thereof." On June 17, 1977, defendant notified plaintiff that he was being terminated under 11(c). There is no dispute that plaintiff was more than $6,000 delinquent for purchases under the contract at the time defendant terminated the contract.

The evidence indicated that, over the years, plaintiff was consistently late in making payments under the contract. In fact, a regional sales manager of defendant testified that, to his knowledge, plaintiff had never been current in his payments. In its brief, defendant conceded that on occasions prior to June of 1977 it had elected to accept late payments from plaintiff rather than to exercise its option to terminate.

There is also evidence that defendant warned plaintiff that it would not continue to accept late payments and that such delinquencies could cause defendant to terminate the contract. At trial, plaintiff himself admitted that he had been warned about the delinquencies several times over a period from 1975 to 1977; plaintiff indicated that he understood the consequences of the delinquencies. As recently as April of 1977, plaintiff was orally warned by a district manager of defendant that the contract would be terminated if plaintiff's accounts were not kept current. Nevertheless, plaintiff's delinquencies increased from April to June of 1977, and defendant informed plaintiff that it was terminating their contract pursuant to term 11(c), quoted above.

There was testimony at trial about statements made by an employee of defendant concerning the termination of the contract. The witness, a customer of plaintiff, asked defendant's employee why plaintiff had been terminated as distributor. The witness testified that defendant's employee said plaintiff had been terminated for two reasons: (1) other farmers had indicated that semen which plaintiff had sold to them had thawed and been refrozen and was not performing properly, and (2) plaintiff had a heavy drinking problem. Furthermore, this same employee of the defendant testified that there was a discussion of plaintiff's termination at every farm he visited. He did not testify, however, as to the details of those discussions. The record does not indicate whether there was discussion of thawed semen or a drinking problem at any time other than the one just mentioned.

The court instructed the jury on breach of contract, invasion of privacy, compensatory damages as they might apply to each action, and punitive damages. The instructions on punitive damages were not tied specifically to either action but were explained generally as a separate part of the instructions. As indicated earlier, the jury returned a general verdict which simply awarded plaintiff $10,000 in compensatory damages and $60,000 in punitive damages. There was apparently no request that the counts be separated, that interrogatories be submitted to the jury, or that the jury render its decisions on special verdicts. Thus, in order to uphold the verdict, we must find that the jury could have found liability and damages for plaintiff in both causes of action independently. Lincoln v. Emerson, 137 Vt. 301, 303, 404 A.2d 508, 510 (1979).

There was no objection to the substance of the court's instructions below, and a charge to the jury which is not objected to becomes the controlling law of the case. Jackson v. Rogers, 120 Vt. 138, 144, 134 A.2d 620, 623 (1957); see Lent v. Huntoon, 143 Vt. 539, 554, 470 A.2d 1162, 1172 (1983) (absent glaring error, instructions on damages become controlling law of the case). After the charge was read to the jury, the court asked counsel for both parties if there were any objections. Plaintiff had none. Defendant asked for a clarification on one point, which was made, and generally objected to any instructions on invasion of privacy. That objection went to the quantum of evidence produced by plaintiff on that cause of action, however, and not to the principles of law embodied in the instruction. As indicated earlier, we will treat this as a motion for directed verdict, not merely as an objection to the instructions.

I.

The law expressed in the court's charge on the invasion of privacy action was taken almost verbatim from the American Law Institute's Restatement (Second) of Torts §§ 652A-652E (1977). ¹ Defendant's motion for directed verdict challenged the element of "publicity." Publicity, as explained in the charge to the jury in this case,

means the dissemination of information to the public at large or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. It does not mean the communication of information to a single person or to a small group of people.

This instruction is almost an exact recitation of the Restatement, supra, § 652D comment a. The jury was further instructed that invasion of privacy could be found in either of two ways: (1) the defendant gave unreasonable publicity to plaintiff's private life, or (2) the defendant gave publicity that unreasonably placed the plaintiff in a false light. The instruction on publicity, quoted above, was specifically made applicable to both forms of invasion of privacy.

Defendant argues that there was insufficient evidence of publicity for the tort to have been submitted to the jury, since the testimony indicated that defendant's employee had mentioned thawed semen and a drinking problem only to one person. Plaintiff argues that the following excerpt from the testimony of defendant's employee constitutes sufficient publicity: "Question: Do you recollect her asking you what happened to [the plaintiff]? Answer: Not in particular, because every farm you went to we dis...