Dean Daugherty sued Liberty National Life Insurance Company ("Liberty National") and Perry Hartley, alleging defamation, intentional infliction of emotional distress, and interference with business relationships. Daugherty voluntary dismissed his claims of intentional infliction of emotional distress and interference with business relationships. The jury returned a verdict in favor of Daugherty on his defamation claim, awarding him $300,000 in compensatory damages, and the trial court entered a judgment on that verdict. Liberty National and Hartley appeal the denial of their motions for a judgment as a matter of law, motions for a remittitur of the compensatory-damages award, and motions for a new trial. We affirm the judgment of the trial court. *154
On November 1, 1993, Daugherty resigned from Liberty National and started the Daugherty-Bailey Insurance Co., Inc. Before Daugherty's resignation, Perry Hartley, then a Liberty National district manager, had evaluated Daugherty's job performance. Hartley indicated on the evaluation form that the reason for Daugherty's departure from Liberty National was that Daugherty had purchased an independent insurance agency. Hartley also indicated on the evaluation form that Daugherty had handled Liberty National accounts satisfactorily, that Daugherty had good sales ability, and that Hartley would reemploy Daugherty if he decided to reapply for employment with Liberty National.
Liberty National did not immediately hire an insurance agent to replace Daugherty, and after his departure, several of Daugherty's former customers began to contact him regarding the status of their life insurance policies. Daugherty told his former customers to contact Liberty National, and he provided them with a customer-service telephone number. When Liberty National failed to satisfy these customers, they again contacted Daugherty and requested that he provide them with life insurance. Daugherty sold several life insurance policies, issued by an insurance company other than Liberty National, to his former Liberty National customers. Those customers then either canceled their Liberty National life insurance policies or allowed those policies to lapse. An agent who replaces an existing insurance policy with another company with his or her company's policy is required by state insurance regulations to file a replacement form with the insurance company whose policy is being replaced so that that company may contact the customer to determine if the customer intended to lose his or her former insurance.
When the premiums on several Liberty National insurance policies held by customers in Citronelle became past due, Liberty National instructed its insurance agents to contact the holders of those policies in order to preserve its business. Liberty National had a company policy requiring its insurance agents to collect affidavits from former customers indicating whether a former Liberty National insurance agent had replaced their Liberty National insurance policy with a policy issued by another company. If an insurance policy had been replaced by a former Liberty National insurance agent within the period prohibited by the noncompetition agreement, Liberty National would sue the former insurance agent in accordance with that noncompetition agreement.
Perry Hartley contacted several of the Citronelle policyholders whose policies had lapsed. Hartley learned that many of those policyholders had purchased new life insurance policies through Daugherty. One such policyholder was Ouida Landrum. Hartley visited Landrum sometime in 1994 or 1995. Lois Ott, Ouida Landrum's niece, was visiting her aunt on the occasion of Hartley's visit. Ott was also a *155 former Liberty National life insurance policyholder who had purchased a new life insurance policy through Daugherty.
According to Ott, Hartley told Landrum that Daugherty was one of the "sorriest" insurance agents Liberty National had ever had; that Daugherty was selling insurance policies he knew were no good; that Daugherty was "pocketing" the money from the sale of those policies; that Daugherty had sold one person seven cancer policies, knowing the policies were not any good; and that Daugherty had been fired from Liberty National because he was stealing the company's money. Hartley also asked Landrum to sign an affidavit stating that Daugherty had replaced her Liberty National life insurance policy with a policy issued by another company.
After Hartley left Landrum's home, Ott telephoned Daugherty and told him what Hartley had said. Ott did not tell anyone other than Daugherty about the statements; however, she heard other people in the Citronelle community talking about similar remarks Hartley had made about Daugherty. Ott testified that the statements she heard Hartley make about Daugherty did not prevent her from doing business with Daugherty because she did not believe the statements were true. Several other former Liberty National life insurance policyholders telephoned Daugherty and informed him that Hartley had made similar comments to them and that Hartley had encouraged them to sign an affidavit stating that Daugherty had replaced their Liberty National life insurance policies.
On March 18, 1996, Daugherty sued Liberty National and Perry Hartley (hereinafter referred to collectively as "the Liberty National defendants"), alleging: 1) that Hartley, while acting within the line and scope of his employment with Liberty National, published false and defamatory statements about Daugherty; 2) that the Liberty National defendants intentionally or recklessly caused him to suffer emotional distress by making false and defamatory statements about him to his customers; and 3) that the Liberty National defendants intentionally interfered with the business relationships between Daugherty and his customers. Count one of Daugherty's complaint alleged that Hartley told Daugherty's customers that:
"Dean Daugherty sold cancer policies to people that he knew had cancer. Dean Daugherty knew these policies were no good and Dean Daugherty was pocketing the premium from the sale of these policies. Dean Daugherty sold one old person seven different policies that were no good. Dean Daugherty was the sorriest agent that Liberty National had and Dean Daugherty was fired from Liberty National because of this."
Count two of Daugherty's complaint alleged that Hartley told Daugherty's customers that: "Dean Daugherty is engaging in illegal insurance practices."
On or around July 18, 2001, Liberty National moved for a summary judgment; on July 30, 2001, Perry Hartley moved for a summary judgment. The trial court denied the Liberty National defendants' motions for a summary judgment as to counts one, two, and four of Daugherty's complaint. Daugherty withdrew count three of his complaint, which alleged that the Liberty National defendants had intentionally or recklessly caused him to suffer emotional distress by making false and defamatory statements about him.
On August 3, 2001, Daugherty filed a motion for leave to amend his complaint to add additional facts, to allege that the defamatory statements constituted slander per se, and to add a claim that Daugherty had suffered personal humiliation and lost income as a result of the defamatory *156 statements. On August 10, 2001, the trial court denied that motion. At trial Daugherty agreed to withdraw his slander claim with regard to the statement alleged in count two of his complaint, i.e., that he had engaged in illegal insurance practices.
At the close of Daugherty's case, the Liberty National defendants moved for judgments as a matter of law, arguing that Daugherty had not specifically pleaded slander per se, that only the statement regarding Daugherty "pocketing the premium from the sale of [insurance] policies" could constitute slander per se and that the other statements alleged in count one could have supported only a finding of slander per quod, which would have required Daugherty to plead and prove special damages. At the close of their case, the Liberty National defendants renewed their motions for a judgment as a matter of law. The trial court denied those motions. The case went to the jury on only the first count of Daugherty's complaint. The jury returned a verdict in favor of Daugherty and awarded him $300,000 in compensatory damages.
On September 13, 2001, Liberty National renewed its motion for a judgment as a matter of law and filed a motion for a remittitur of the compensatory-damages award and a motion for a new trial. On September 14, 2001, Hartley renewed his motion for judgment as a matter of law and filed a motion for a remittitur of the compensatory-damages award and a motion for a new trial. On December 13, 2001, the trial court denied the Liberty National defendants' motions for a judgment as a matter of law, motions for a remittitur of the compensatory-damages award, and motions for a new trial, stating that the Liberty National defendants' actions constituted slander per se. The court stated that the Liberty National defendants had accused Daugherty of taking money that did not belong to him, i.e., stealing, and that, therefore, damages could be presumed. The court also found that there was sufficient evidence to indicate that Daugherty had experienced mental anguish over an extended period, supporting the jury's award of compensatory damages.
Ceravolo v. Brown,
"`The foundation of an action for libel or slander is a malicious injury to reputation, and any false and malicious imputation of crime or moral delinquency by one published of and concerning another, which subjects the person to disgrace, ridicule, odium, or contempt in the estimation of his friends and acquaintances, or the public, with resulting damage to his reputation, is actionable either per se or per quod. . . .
"`There is a distinction between actions of libel predicated on written or printed malicious aspersions of character, and actions of slander resting on oral defamation. . . . This distinction, however, is merely in respect to the question as to whether the imputed language or words are actionable per se.
"`In cases of libel, if the language used exposes the plaintiff to public ridicule or contempt, though it does not embody an accusation of crime, the law presumes damage to the reputation, and pronounces it actionable per se. While to constitute slander actionable per se, there must be an imputation of an indictable offense involving infamy or moral turpitude. . . .
"`This distinction, however, does not deny the right to maintain an action for slander founded on oral malicious defamation subjecting the plaintiff to disgrace, ridicule, odium, or contempt, though it falls short of imputing the commission of such crime or misdemeanor. In such case the law pronounces the words actionable per quod only, and the plaintiff must allege and prove special damages as an element of the cause of action.'"
However, "[d]amage is implied by law when spoken words are found to be slander per se." Anderton v. Gentry,
When determining whether a statement is actionable as slander per se, a court must give the language used "that meaning that would be ascribed to the *158
language by a reader or listener of `average or ordinary intelligence, or by a common mind.'" Camp v. Yeager,
Daugherty contends that the statements that he alleges in count one of his complaint were made by the Liberty National defendants are slanderous per se because, he argues, the statements impute to him the offense of larceny. If we assume the statements alleged in count one are true, Hartley told one of Daugherty's customers that Daugherty had sold cancer policies to people he knew had cancer; that Daugherty knew that those policies were worthless; and that he was pocketing the premiums from the sale of those policies. At the time Hartley made the allegedly defamatory statements, Alabama's Criminal Code provided a criminal penalty for the misappropriation of funds collected by an insurance agent. Section
"(b) Any agent or broker who, not being lawfully entitled thereto, diverts or appropriates such funds, or any portion thereof, to his own use shall, upon conviction, be guilty of larceny by embezzlement and shall be punished as provided by law as if he had stolen such funds."
(Emphasis added.) This Court has firmly held that larceny falls within the definition of an indictable criminal offense involving infamy or moral turpitude and that, therefore, words that impute the offense of larceny are slanderous per se. Sunshine Investments,
An insurance agent who knowingly sells worthless insurance policies and appropriates the premiums paid on those policies to his own use is also guilty of the crime of theft by deception. §
"A person commits the crime of theft of property if he:
"(1) Knowingly obtains or exerts unauthorized control over the property of another, with the intent to deprive the owner of his property; or
"(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his property."
§
As support for their position that Hartley did not intend to imply that Daugherty had committed theft, the Liberty National defendants citeBlevins v. W.F. Barnes Corp.,
The Liberty National defendants contend in their brief to this Court that The American Heritage Dictionary (4th ed. 2000) contains several meanings of the word "pocketing" that are harmless. Just as the Court of Civil Appeals held in Blevins — that the word "extort" has several meanings that do not suggest the crime of extortion — the Liberty National defendants argue that the word "pocketing" has several meanings that do not suggest the offense of theft. Blevins, however, was a decision by a lower appellate court; although under appropriate circumstances such a decision may be persuasive authority, it is not binding. Moreover, based upon the context in which the word "extort" was used, the Court of Civil Appeals could have reasonably concluded that the word "extort" was "rhetorical hyperbole" rather than an accusation that the plaintiff had committed an indictable offense.
According to the Liberty National defendants, The American HeritageDictionary defines the verb form of the word "pocket" as follows:
"1. To place in or as if in a pocket. 2. To take possession of for oneself, especially dishonestly: pocketed the receipts from the charity dance. 3.a. To accept or tolerate (an insult, for example). b. To conceal or suppress: I pocketed my pride and asked for a raise."
Of these definitions of the word "pocket," the definition "[t]o take possession of for oneself, especially dishonestly" more closely describes the action that Hartley imputed to Daugherty. Several other dictionaries contain similar definitions of the word "pocket." Among the verb forms of the definition of "pocket" in The Random House Dictionary of the EnglishLanguage (2d ed. 1987) is "to take possession of as one's own, often dishonestly: to pocket public funds." The Oxford English ReferenceDictionary (2d ed. 1996) includes in its definitions of the verb form of the word "pocket" "appropriate, esp. dishonestly." The usage of the word "pocket" shown in The American Heritage Dictionary — "pocketed thereceipts from the charity dance" — The Random House Dictionary ofthe English Language — "to pocket public funds" — indicating the context in which those definitions apply, implies that one "pocketing" has taken something that does not belong to him or her, i.e., that he or she has committed theft. Indeed, according toMerriam-Webster's Collegiate Dictionary *160 (10th ed. 1999), "pocket" may also mean "to appropriate to one's own use: steal."
Hartley's statements did not suggest that Daugherty had "pocketed" the commission from his insurance sales — income to which Daugherty may have been entitled. The commonly understood meaning of Hartley's statement was that Daugherty had sold worthless goods in a transaction that did not entitle him to keep the proceeds of the sale but that obligated him to pass them on to Liberty National Insurance Company in order for the purchaser to receive any benefit. We decline Liberty National's invitation "`to be industrious in putting a construction upon [the words used in Hartley's statement] different from what they bear in the common acceptation and meaning of them.'" Johnson,
The general rule is that when a defamatory statement is slanderous per se, the law infers injury to reputation and the plaintiff is relieved of the requirement of proving actual harm to reputation or any other damage. Nelson,
In Tidmore v. Mills,
"Our courts have considered the propriety of the introduction of the general character of the plaintiff in libel actions from a very different approach and purpose from those attempted in the instant case.
". . . .
"A review of the authorities will unquestionably show that the general, character evidence of the plaintiff in libel cases is justified and approved for purposes and reasons in no way related or concomitant to those for which the evidence in the case at bar was tendered.
"We entertain the view that it would be anomalous conclusion for us to sanction the introduction of the evidence under review. To do so would have the effect of destroying, or at least seriously jeopardizing, the prevailing presumption of injury to reputation in the publication of a libelous statement."
Moreover, Daugherty's testimony that his reputation was "excellent" was elicited in the course of a trial in which the Liberty National defendants presented evidence of "bad character," including evidence indicating that Daugherty had solicited former Liberty National customers in violation of his noncompetition agreement, that Daugherty had willfully failed to inform Liberty National that he had replaced Liberty National life insurance policies with policies from other companies, and that Daugherty had violated state insurance regulations. Thus, Daugherty's testimony of his "excellent" reputation could be interpreted as a rebuttal of Liberty National's attack on his character.
We cannot elevate Daugherty's testimonial evidence of his good character to the status of a judicial admission. Wigmore defines a judicial admission as:
"[a]n express waiver made in court or preparatory to trial by the party or his attorney conceding for the purposes of the trial the truth of some alleged fact. . . . This is what is commonly termed a solemn — i.e., ceremonial or formal — or judicial admission or stipulation. It is, in truth, a substitute for evidence, in that it does away with the need for evidence.
"This judicial admission is sharply marked off from the ordinary or quasi-admission — which indeed does not deserve to bear the same name. The latter is merely an item of evidence, available against the party on the same theory on which a self-contradiction is available against a witness. . . . [T]he [quasi-admission] is not conclusive; but . . . the [judicial admission] is conclusive."
9 John Henry Wigmore, Evidence in Trials at Common Law § 2588 at 821-22 (Chadbourn rev. ed. 1981) (footnotes and emphasis omitted). "It is of the nature of an admission, plainly, that it be by intention an act of waiver relating to the opponent's proof of the fact and not merely a statement of assertion or concession made for some independent purpose." 9 Wigmore, § 2594(2) at 833 (footnote omitted). See also Webb v.State,
Nevertheless, even if we were to conclude that Daugherty's testimony regarding his "excellent" reputation in the community was admissible as evidence "destroying, or at least seriously jeopardizing, the prevailing presumption of injury to reputation," Tidmore,
Horton Homes, Inc. v. Brooks,"`Under Alabama law, the presence of physical injury or physical symptoms is not a prerequisite for a claim for damages for mental anguish. "The plaintiff is only required to present some evidence of mental anguish, and once the plaintiff has done so, the question of *163 damages for mental anguish is for the jury." The amount of the jury's award is left to the jury's sound discretion, and the jury's award will not be set aside absent a clear abuse of discretion. Also, a jury's verdict is presumed correct, and that presumption is strengthened by the trial court's denial of a motion for new trial.'"
Daugherty testified that from 1994 until he sued the Liberty National defendants in 1996, he received approximately 25 to 30 telephone calls from former Liberty National customers regarding visits they had received from Hartley. Daugherty testified that as a result of the telephone calls he began to develop high blood pressure, became very irritable, and felt terrible. Daugherty testified that the stress related to Hartley's statements adversely impacted his relationship with his wife. He testified that during this period he would go home and say things to his wife that he should not have said to her. Daugherty testified that as a result of Hartley's statements he became fearful that he would lose his insurance license, that he would be sued, and that he would not be able to support his family. Daugherty testified that he had worked all his life to build a good name, and he felt that his name was being destroyed.
Sybil Daugherty, Daugherty's wife, also testified regarding Daugherty's mental anguish. She testified that since learning of Hartley's statements, Daugherty had been depressed, worried, and anguished. She testified that Daugherty could not sleep at night. She testified that Daugherty often woke up in the middle of the night and that when he did she and he would sit and talk. She testified that Daugherty worried a lot about his reputation and that Hartley's statements had caused Daugherty to become irritable with her at times. The fact that the Liberty National defendants may not have succeeded in ruining Daugherty's reputation does not justify a reduction of the damages awarded for mental anguish sustained while worrying day and night as to whether the slanderous statements would gain traction in the community.
The testimony of Daugherty and his wife described mental anguish over a period of approximately two years in sufficient detail to permit a thorough cross-examination. While the jury's verdict of $300,000 is higher than a Justice of this Court, sitting as a juror, might have awarded, that is not the test to determine whether such an award is excessive. This award is sufficiently grounded in evidence to withstand the strict scrutiny of the jury's verdict mandated by Kmart.
AFFIRMED. *164
MOORE, C.J., and HOUSTON, JOHNSTONE, and WOODALL, JJ., concur.