Wegner v. Rodeo Cowboys Association
| Decision Date | 02 October 1968 |
| Docket Number | Civ. A. No. 67-C-451. |
| Citation | 290 F. Supp. 369 |
| Parties | Robert WEGNER, Plaintiff, v. The RODEO COWBOYS ASSOCIATION, Inc., a Colorado corporation; and George Williams, Defendants. |
| Court | U.S. District Court — District of Colorado |
Kripke, Hoffman, Carrigan & Dufty, Kenneth N. Kripke, Denver, Colo., for plaintiff.
Dickerson, Barry & Dwyer, F. E. Dickerson and William F. Dwyer, Denver, Colo., for defendants.
The defendants have moved for a new trial and for judgment notwithstanding the verdict of the jury. This is a defamation suit in which the plaintiff seeks damages for the alleged publication of a libel or libels. The evidence shows that he was, prior to January 4, 1967, a professional rodeo contestant and the former world's champion bull rider.
In essence, the charge described in the complaint is that the defendants suspended him as a member of The Rodeo Cowboys Association and then carried out a campaign to discredit him by publishing in Rodeo Sports News, a paper of the Association which is widely distributed, articles designed to injure his reputation.
Briefly, the evidence shows that plaintiff was seeking to promote a rival organization which would introduce team competition in rodeos and that the defendant Association ordered him to refrain from further efforts along this line and required him to post a $500.00 good conduct bond. This action was taken on January 4, 1967. Thereafter, he sought to resign from the Association. However, the resignation was not accepted and subsequently the board met and suspended him and gave wide circulation to his suspension. They revoked the bond and charged him with unauthorized use of the name of one Casey Tibbs, a member of the Association.
Although plaintiff maintained that the case was one in defamation per se, the case was tried on the basis that the words were not libel per se, but did involve the plaintiff's trade or business so that special damages were not essential. The jury was told that malice had to be established (to defeat privilege), and that the defamation had to be false (in order to defeat the defense of truth). The jury was allowed to consider award of general damages, but was not required to find special damage because of the fact that the defamation fell into an excepted category, that of injury to the plaintiff's trade or business. The jury returned a verdict of $5,000.00 actual damages and $20,000.00 exemplary damages.
On the motion for new trial, it is contended, first, that the verdict for exemplary damages is excessive on its face, being wholly disproportionate to the verdict for actual damages and, secondly, it is contended that since this Court determined that the case was one in defamation per quod rather than defamation per se, pleading and proof of special damage was an indispensable element of the case. We have heard oral arguments, have considered briefs and researched the questions presented. We have concluded that the motions should be denied for the reasons that are expounded in this Memorandum Opinion and Order.
It is generally held that exemplary damages must be fairly proportionate to actual damages and if there is a wide disproportion, it shows that the jury was motivated by prejudice. See, e. g., the recent decision of the United States Court of Appeals for the Tenth Circuit in Dearmore v. Gold, 400 F.2d 887 (September 10, 1968).
The Colorado Supreme Court has spoken on this question on a number of occasions, but has not considered a defamation case such as the one at bar. The Colorado Court has announced that exemplary damages are reasonable if they bear some relation to the compensatory award, that is if the punishment is proportionate to the injury resulting from the act.1 From a reading of the cases, one could gain the impression that the proportion must always be substantially equal. At the same time, it is generally agreed that it does not have to be a fixed or definite mathematical ratio.2 Nevertheless, the courts invariably examine and use the ratio, together with the particular facts presented, in order to ascertain whether the exemplary damage award seems unreasonable. A dramatic example of this is found in Bangert v. Hubbard, 127 Ind.App. 579, 126 N.E.2d 778 at 782, 143 N.E.2d 285, 67 A.L.R.2d 395 (1955). Here the Court held that where the exemplary damages were 104 times the compensatory damages and there were other facts indicating improper influences on the jury, the verdict could not stand.
In the recent opinion of the Court of Appeals for the Tenth Circuit in Dearmore v. Gold, supra, the actual damage verdict was in the amount of $841.54, and the compensatory award was $10,000.00. The Court of Appeals pointed out that the award for punitive damages was approximately eleven times greater than the award for actual damages and noted that the two awards were so extremely disproportionate that the Court would have to assume that the jury acted either with passion or prejudice "or with a complete misapprehension of the role of punitive damages." It is noteworthy that the plaintiff there considered the punitive award to have been made for the purpose of compensating for future medical expenses and pain and suffering (a wholly invalid concept).
The courts do, however, sometimes allow high-proportion exemplary damage awards when they feel that the facts justify such awards.3 For example, the United States Supreme Court has recently affirmed a libel verdict in which the punitive damages were 6½ times greater than the actual damages.4 It would appear, therefore, that in most jurisdictions at least this requirement that there be proportion between the general award and the exemplary award is used as a test so as to allow the court to set aside verdicts which it regards as excessive under the facts and the evidence presented.5
Our interest here is the law of Colorado, and there have been several decisions of the Colorado Supreme Court which have involved assaults or negligence in which the Court has either reduced or reversed cases where the exemplary awards were substantially larger than actual damages.6 Indeed, one commentator has concluded that exemplary damages are reasonable in Colorado "only if such award does not exceed the amount of compensatory or actual damages." Comment, 35 Colo.L.Rev. 394 (1963). We cannot agree that such a mechanical rule has been adopted by the Colorado Supreme Court. Rather, it would appear that the Court is concerned that the punishment may, so to speak, fit the crime. Indeed, there have been Colorado decisions which have upheld exemplary damage awards in which the amount of the exemplary award has exceeded the actual award.7 One case upheld a verdict in which the exemplary damages were three times greater than the actual damages. Surprisingly, this involved cruelty to animals rather than to human beings.8
As suggested above, there is inconsistency in the Colorado cases. One such case involved the use of a spring gun concealed in a gasoline pump. The reason for the Court's conclusion that the exemplary damages were too high was that the gun was not set with the plaintiff in mind. The facts of many of the other cases were not such as to justify an exemplary award substantially in excess of the general damages.9
It is important to keep in mind that exemplary damages are awarded for the purpose of punishing persons who have inflicted injuries with malice. That being so, the degree of malice should determine the amount of the exemplary award.10 There is also a deterrent aspect in the award of exemplary damages and this is thwarted if the law will not permit a high award of exemplary damages where the degree of malice is great.11 A defamation case presents somewhat different considerations than the assault and battery type of case. There may be good reason in this latter kind of case to maintain a reasonable proportion between actual and exemplary damages. The assault or battery usually results from an impulsive act on the part of the defendant, and there is every reason to require that the punishment be closely related to the magnitude of the harm inflicted. In defamation, however, the plaintiff might have a superior reputation not susceptible to injury, or the defendant could have a very poor reputation for truth and veracity. As a result, there would be little actual injury to the plaintiff. At the same time, the defendant might have been actuated by malice of the worst kind. To require a low-proportion exemplary award in this type of case would allow a malicious defendant to defame someone and escape without punishment.12
There is no definitive Colorado case dealing with defamation. However, other jurisdictions which generally require a reasonable relationship between exemplary and general damages have upheld exemplary award in libel cases in much higher proportion than the 4 to 1 ratio that is found here.13
We conclude that the Colorado Court has not laid down a hard and fast rule which requires that the present verdict be upset. Furthermore, in the instant case the jury was at liberty to conclude that the defendants deliberately and premeditatedly set out to discredit the plaintiff so as to deter him in his effort to establish a competing organization. The jury was very carefully instructed as to the necessity for proof of and the nature of malice as applied in the present context. There is no basis for concluding that the jury verdict resulted from passion or prejudice, and the disproportion in the award does not by itself or in conjunction with the other evidence raise any such inference. To order the plaintiff to renounce part of this verdict or to grant a new trial would constitute arbitrary capricious action on the part of the Court.
The remaining question which deserves some comment is the contention of defendants that special damages were an essential part of the case and that the jury should have been so...
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