Stubbs v. Cowden, Record No. 2473.

• Decision Date: 19 January 1942
• Docket Number: Record No. 2473.
• Citation: 179 Va. 190
• Court: Virginia Supreme Court
• Parties: LILLIAN STUBBS v. FRANCES COWDEN.

Page 190

179 Va. 190

LILLIAN STUBBS v. FRANCES COWDEN.

Record No. 2473.

Supreme Court of Virginia, Richmond.

January 19, 1942.

Present, All the Justices. * * Campbell, C.J., not participating.

1. LIBEL AND SLANDER — Measure of Damages under Statute for Insulting Words — Instructions — Improper Conduct of Plaintiff May Be Considered in Mitigation of Damages — Case at Bar. — In the instant case, a proceeding for damages under the statute for insulting words, the jury was instructed that if plaintiff was entitled to recover anything, then in assessing damages they could take into consideration her improper relations with the husband of defendant, if proven in the case, in mitigation of damages.

Held: No error.

2. APPEAL AND ERROR — Presumptions on Appeal — Burden of Showing Error Rests on Party Attacking Judgment. — A judgment of the trial court in favor of defendant is presumed to be correct and the burden is on plaintiff to satisfy the Supreme Court of Appeals of error.

3. NEW TRIALS — Control of Court over Verdict — Court More than Mere Umpire. — The trial court is more than a mere umpire in the trial of a common-law action, and notwithstanding the weight of a jury's verdict, that verdict is subject to the control of the court in the attainment of justice.

4. NEW TRIALS — Granting — Review — Stronger Case Required to Disturb Order Granting New Trial. — More latitude is allowed a trial court in granting a new trial than in refusing one. The trial judge has the benefit of seeing and hearing the witnesses and of observing their demeanor and general attitude and is familiar with all of the incidents of the trial. The granting of a new trial invites further investigation, while a refusal operates as a final adjudication of the rights of the parties. A stronger case must be made to justify the Supreme Court of Appeals in disturbing an order granting a new trial than one which has been refused.

5. NEW TRIALS — Grounds — Allegations in Uncontradicted Affidavits Presumed True — Case at Bar. — In the instant case, a proceeding for damages under the statute for insulting words, after a verdict for plaintiff, a motion for a new trial, based on uncontradicted affidavits tending to prove that plaintiff had been guilty of improper relations with defendant's husband, was granted.

Held: That the allegations of the affidavits must be presumed to be true.

6. NEW TRIALS — Newly-Discovered Evidence — Evidence Justifying Award of New Trial — Case at Bar. — In the instant case, a proceeding for damages under the statute for insulting words, defendant entered a motion to set aside the verdict for after-discovered evidence which showed that plaintiff had spent a part of a night and day with defendant's husband in a tourist cabin. Plaintiff had stated that defendant had used insulting language to her when accusing her of improper relationship with defendant's husband, which relationship plaintiff, as a witness, had denied.

Held: That the new evidence was material in its object and was such as on another trial ought to have produced an opposite result, it was not merely cumulative, corroborative, or collateral, but attacked the character and reputation of the plaintiff and contradicted her testimony on a material matter in an issue of the case.

7. LIBEL AND SLANDER — Measure of Damages in Action under Statute for Insulting Words — Question for Jury — Subject to Discretion of Court in Supervisory Capacity. — The determination of the amount of damages in an action under the statute for insulting words is primarily the province of the jury under proper instructions of the court, and the courts are generally reluctant to interfere with their verdict. Nevertheless, each case must be considered on its own facts and circumstances, and, whether the award is inadequate or excessive is a legal question addressed to the sound discretion of the court in the exercise of its supervisory power over verdicts to prevent a miscarriage of justice.

8. VERDICT — Not Allowed to Work Injustice and Oppression. — The verdict of a jury cannot be allowed to work injustice and oppression.

9. LIBEL AND SLANDER — Measure of Damages in Action under Statute for Insulting Words — Effect of Bad Reputation. — While there is no rule fixing the quantum of compensation for insult, mental suffering, and injury to the reputation or for punishment of the offender, one of unblemished reputation is entitled to greater damages than one whose reputation is such that he is little hurt from the action of which complaint is made. The effect of bad reputation is to reduce the damage inflicted.

10. EXEMPLARY DAMAGES — When Awarded — Evidence Necessary to Justify Award. — To recover punitive damages largely in excess of what ordinarily might be expected as punishment for the particular offense, there should be some evidence to show that the defendant's condition was so different from that of the ordinary person that it was necessary to award such damages to constitute, under the circumstances, a sufficient punishment for the acts complained of.

11. DAMAGES — Measure of Recovery — Award Should Bear Reasonable Proportion to Damages Sustained. — The damages awarded should bear some reasonable proportion to the real damages sustained and to the measure of punishment required; otherwise, they indicate prejudice or partiality.

12. LIBEL AND SLANDER — Excessive Damages — Question Not Decided Where New Trial Granted for After-Discovered Evidence — Case at Bar. — In the instant case, a proceeding to recover damages under the statute for insulting words, in the first trial a verdict for plaintiff in the sum of $5,000 was entered. There was no evidence showing the standing of defendant in the community, her wealth, or social position, except that the court in divorce proceedings thought it necessary to allow her alimony at $10 per week. There was evidence of the provocation suffered by defendant on account of plaintiff's conduct with defendant's husband. After entry of judgment, defendant filed a motion to set aside the verdict and for the granting of a new trial on the grounds of after-discovered evidence.

Held: That while the Supreme Court of Appeals was of the opinion that the verdict was excessive, in as much as defendant was entitled to have it set aside on the ground of after-discovered evidence, it was unnecessary to decide to what extent the excessiveness indicated the impropriety of the jury in finding a verdict for plaintiff.

Error to a judgment of the Court of Law and Chancery of the city of Norfolk. Hon. O. L. Shackleford, judge presiding.

The opinion states the case.

Broudy & Broudy, for the plaintiff in error.

Venable, Miller, Pilcher & Parsons and Herman A. Sacks, for the defendant in error.

SPRATLEY, J., delivered the opinion of the court.

This is a proceeding by notice of motion brought by Lillian Stubbs against Frances Cowden to recover damages in an action of slander under the statute for insulting words. The defendant pleaded not guilty. No grounds of defense were requested or filed.

There were two trials, the first resulting in a verdict for the plaintiff in the sum of $5,000, the full amount for which she sued. On March 2, 1938, the court, on motion of the defendant, set aside the verdict and awarded a new trial, to which action the plaintiff excepted. The case then remained on the docket for nearly three years until notice was served by the clerk that it was about to be dismissed for failure to prosecute.

The second trial of the case was held on February 1, 1941, the parties appearing by their attorneys. As neither party demanded a jury, and as the plaintiff elected not to put on any evidence, the whole matter of law and fact was heard and determined by the court. Judgment was then rendered in favor of the defendant.

The only evidence certified to us is that given upon the first trial and in the affidavits submitted on the motion for a new trial. The evidence is in narrative form since there was no stenographic report. It is a summary statement made up from skeleton notes used by the counsel for the defendant in arguing the motion for a new trial.

The original trial of the case lasted two days. The record shows no objection of the plaintiff to any of the evidence of the defendant nor to any of the instructions given to the jury.

The evidence, which was introduced as to the good character and reputation of the plaintiff, was contradicted by that of the defendant.

One of the instructions directed the jury that if they believed the plaintiff was entitled to recover anything, "then, in assessing her damages, you may take into consideration her improper relations with Cowden if proven in this case, in mitigation of any damages you may think she is entitled to."

The instructions set out the law of the case as tried. That case we now review.

The evidence, so far as is pertinent, was as follows:

Mrs. Frances Cowden, in September, 1937, instituted a suit for divorce against her husband, John Cowden, in the Circuit Court of the City of Norfolk, on the ground of adultery, naming Lillian Stubbs, the plaintiff in this action, as co-respondent. The husband did not contest the suit. On the 4th day of December, 1937, Mrs. Cowden was granted a divorce a vinculo. On this same day Mrs. Stubbs instituted this action of slander.

Mrs. Stubbs and Mrs. Cowden were acquaintances and lived in the same neighborhood, their respective homes being about three or four hundred feet apart. Mrs. Stubbs had been married about seventeen years. Her husband was an employee of the American Railway Express Company for which he worked from two o'clock in the afternoon to eight-thirty in the evening. He and John Cowden were on friendly terms, the latter having helped him build the house where he lived. Cowden was employed at the United States Naval Base near Norfolk.

Edward Phelps, whose wife is a sister of Mrs. Stubbs' husband, testified that he saw Mrs. Cowden at the...