Battista v. United Illuminating Co.

523 A.2d 1356, 10 Conn. App. 486, 1987 Conn. App. LEXIS 904
CourtConnecticut Appellate Court
DecidedApril 14, 1987
Docket4156
StatusPublished
Cited by102 cases

This text of 523 A.2d 1356 (Battista v. United Illuminating Co.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Battista v. United Illuminating Co., 523 A.2d 1356, 10 Conn. App. 486, 1987 Conn. App. LEXIS 904 (Colo. Ct. App. 1987).

Opinion

Borden, J.

The plaintiff appeals from the judgment rendered following the denial of his motion to set aside the verdict, after a trial to a jury, on three counts of a complaint alleging defamation, wrongful discharge in tort and wrongful discharge in contract. The plaintiff claims that the trial court erred in (1) charging the jury that they could only award nominal damages on the defamation count, and (2) failing to charge in accord with the plaintiff’s requests on the wrongful discharge counts. We find error in part.

The jury could reasonably have found the following facts.The plaintiff was employed by the defendant, The [488]*488United Illuminating Company (U.I.), for nearly twenty-five years. He began as a meter reader in 1954, and at the time of his termination in 1978 had recently been promoted to customer service representative. He was considered a good employee, having received favorable comments from his supervisors, and he considered his job his “pride and joy.”

In 1975 and early 1976, U.I. became concerned about an increase in meter tampering and theft of electricity by its employees. Fred Jacobs, director of security for U.I., implemented an inspection program which consisted of inspection teams which were sent to the homes of U.I. employees for the purpose of inspecting meters for physical evidence of tampering. The plaintiffs meter was inspected on September 27, 1977, and no irregularities were detected. Subsequently, Jacobs discovered that there had been a meter change at the plaintiffs home on September 24, 1976, because of a routine malfunction. Jacobs located the old meter in a U.I. storage facility and retrieved it. The meter had been in the homes of two other customers after having been removed from the plaintiffs home. This meter also failed to reveal evidence of tampering. Jacobs, however, compared the date of manufacture of the meter and the date of final inspection at the factory, as stamped on the back, and discovered a discrepancy which suggested that the plate came from another meter.

A subsequent review of the plaintiff’s account history showed a drop in metered electrical use going back to 1971. The defendant presented evidence that the reduction could not have been obtained without meter tampering. The plaintiff testified, however, that during the early to mid 1970’s, he had taken numerous steps to conserve electricity in his home, pursuant to U.I.’s policy of promoting conservation, including installation of insulation, turning off electricity in [489]*489unused rooms, lowering thermostats, regulation of the hot water heater, line-drying clothes, burning wood and using electric blankets.

An ad hoc committee, set up by U.I. to determine whether to terminate employees suspected of meter tampering, decided to fire the plaintiff on April 27, 1978.

In August, 1978, the plaintiff received an electric bill from U.I. which included a charge for unmetered service. The plaintiffs wife called Russell Young, Jr., a U.I. review officer, to complain about the size of the electric bill. In response, Young sent a letter to the plaintiff which stated, in relevant part, “I have reviewed the circumstances and procedures concerning the rebilling of your account for unmetered service. In March 9, 1978, it was verified that your electric meter was tampered with in the following manner: 1. Meter changed with old meter name plate (and old meter number) being retained on ‘new’ meter .... It is my conclusion that you have been properly and accurately rebilled for unmetered electricity in the amount of $1,216.01. ”1 Copies of this letter were circulated to three other U.I. employees in the security and billing departments.

[490]*490The plaintiff brought this action against U.I. in three counts, claiming defamation, wrongful discharge in tort and wrongful discharge in contract, respectively. A verdict was returned, after a jury trial, in the plaintiffs favor on the defamation count and in the defendant’s favor on the second and third counts.2 The jury awarded $2500 in damages on the first count. On the defendant’s motion, the court ordered a remittitur of $2499, leaving an award of $1. The plaintiff moved to set aside the verdict on all three counts. He appeals from the judgment rendered after the denial of this motion.

I

The plaintiff first claims that the trial court erred in its instructions to the jury on the damages it could award on the defamation count. The plaintiff requested a charge which would permit the jury to award gen[491]*491eral damages.3 The trial court rejected the plaintiff’s request and charged that the plaintiff could only recover nominal damages since no evidence of actual damages had been presented. The plaintiff excepted to the charge. The jury, despite the instruction, returned a verdict for the plaintiff in the amount of $2500, which the trial court reduced to $1.

The gist of the plaintiffs claim is that the defamatory statement in the letter addressed to him constituted libel per se. Under Connecticut law, when a party is the victim of libel per se, he is presumed to be injured and is entitled to general damages without proof of actual damages. Therefore, the plaintiff claims, the trial court erred in limiting the jury to an award of nominal damages. We agree.

While all libel was once actionable without proof of special damages, a distinction arose between “libel per se” and “libel per quod.” R. Sack, Libel, Slander & Related Problems, p. 96-97. A libel per quod is not libelous on the face of the communication, but becomes libelous in light of extrinsic facts known by the recipient of the communication. Id., 97. When a plaintiff brings an action in libel per quod, he must plead and prove actual damages in order to recover. D. Wright & J. Fitzgerald, Connecticut Law of Torts (2d Ed.) § 146.

Libel per se, on the other hand, is a libel the defamatory meaning of which is apparent on the face of the [492]*492statement and is actionable without proof of actual damages. Id. The distinction between libel per se and libel per quod is important because “[a] plaintiff may recover general damages where the defamation in question constitutes libel per se. Yavis v. Sullivan, 137 Conn. 253, 76 A.2d 99 (1950). ‘When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiffs reputation. He is required neither to plead nor to prove it.’ Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952). The individual plaintiff is ‘entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the libel caused him.’ Proto v. Bridgeport Herald Corporation, 136 Conn. 557, 571, 72 A.2d 820 (1950).” Monroe v. Crandall, 3 Conn. App. 214, 220-21, 486 A.2d 657 (1985). “Whether a publication is libelous per se is a question for the court.” Flanagan v. McLane, 87 Conn. 220, 222 (1913); see also Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 612, 116 A.2d 440

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Bluebook (online)
523 A.2d 1356, 10 Conn. App. 486, 1987 Conn. App. LEXIS 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/battista-v-united-illuminating-co-connappct-1987.