IN THE TERRITORIAL COURT OF TRE VIRGIN ISLANDS



DIVISION OF ST. CROIX AT CHRISTIANSTED



ROSE FOY, AS NEXT FRIEND AND GUARDIAN)

OF ADDIMAE BARNES, )

} CIVIL NO. 673/1980



—



Plaintiffs,



Vv. ACTION FOR DAMAGES



EMIENTINA ETIENNE AND BANK OF NOVA

SCOTIA,



Defendants.



ee eet ee See et et eet See Nee ee



DEREK HODGE, ESQUIRE



Hodge, Sheen, Hodge & Miller

46-47 Company Street

Christiansted, St. Croix

U.S. Virgin Islands 00820

(809) 773-3115



(Attorney for Plaintiffs)



RICHARD KEELING, ESQUIRE

O'Brien & Moore



#55 Company Street

Christiansted, St. Croix

U.S. Virgin Islands 00820

(809) 773-4150



(Attorney for Defendants)



PETERSEN, Judge



MEMORANDUM OPINION

July 7, 1983



A. INTRODUCTION



This is an action to recover compensatory and

punitive damages for slander and emotional distress. The



plaintiff sued on her own behalf as well as her daughter's.

BARNES v. ETIENNE AND BANK OF NOVA SCOTIA

CIVIL NO. 673/1980



ACTION FOR DAMAGES



Page 2



After this Court dismissed the individual action of the mother

and the claim for punitive damages, the jury awarded the



plaintiff Thirty Thousand ($30,000.00) Dollars in damages.



——



Defendants have now moved for a judgment notwithstanding the

verdict or, in the alternative, for a new trial. The

questions to be addressed. relate to the sufficiency of the

evidence as to damages, the propriety. of the jury

instructions, and the excessiveness of the verdict. After

careful consideration it is the judgment of this Court that



the Defendants' motion must be denied.

B. Facts



On June 12, 1980, Plaintiff Addie Mae Barnes went to

the Bank of Nova Scotia at the request of ‘Pat Thomas, a

co-worker, to withdraw certain monies from Thomas's savings

account. She had in her possession Thomas's passbook and

drivers license. Filling out Thomas's savings withdrawal slip



1n the amount of Two Hundred Dollars, Barnes signed her own



name to it and proceeded to withdraw the money. As it was a



Government pay day the Bank was very busy. Etienne, the Bank

of Nova Scotia teller who processed Barnes's withdrawal,

cashed the withdrawal slip without checking the signature

cards.



The mistake went undetected for a-week at which

BARNES v. ETIENNE AND BANK OF NOVA SCOTIA

CIVIL NO. 673/1980



ACTION FOR DAMAGES



Page 3



time, during a routine check by a bank supervisor, the

discrepancy in the signatures surfaced. Etienne, having been

apprised of the situation, took the matter into her own hands.

She first called Barnes on the telephone, but because of a bad

connection was unable to communicate with Barnes. Etienne

then went directly to Barnes's office and confronted her with

the improper signature. Etienne told Barnes that they had

both made a mistake and that Barnes would have to return the

Two Hundred Dollars. Denying that she had made a mistake,

Barnes explained that she had given the money to ‘Thomas.



Etienne, becoming more vociferous, told Barnes that what she



had done was “what we call forgery." <a was further \\



——,



stablished at trial that this exchange took place in the s



6. Srstencs. of Metuaesousesint,soneaee inane: ‘Ss |§_cq-workers



Noticing ~that | Birnes.wastary ing Tereewsasaeusa7eined

to Etienne that Barnes had acted per Thomas's instructions and

had given her, Thomas, the money. Etienne, not satisfied by

the explanation, took Thomas's passbook and refused to return

it to Barnes until the money was paid back.



At that time, David Canegata, another of Barnes's

co-workers, became aware of the confrontation and told Barnes

that since he had Thomas's power of attorney he would

accompany Barnes to the bank to retrieve the passbook. Barnes



agreed. They went to the bank of Nova Scotia where Canegata

BARNES v. ETIENNE AND BANK OF NOVA SCOTIA

CIVIL NO. 673/1980



ACTION FOR DAMAGES



Page 4



was able to secure the return of the passbook.



When her mother called, Barnes, still unsettled by

the events which had transpired, recounted the incident as it

had occurred. Rose Foy, Barnes's mother,. picked up her

daughter and went to the Bank of Nova Scotia in an effort to

obtain an apology from Etienne. They waited to see the bank

Manager but as he was unavailable, they -spoke with the

assistant bank manager, Cook, who apologized on behalf of the



Bank but stated that she could not make Etienne apologize.



C. DISCUSSION



I. Sufficiency of the evidence

The Restatement of Torts, Second, provides that:



one who publishes a slander that

imputes to another conduct

constituting a criminal offense

is subject to liability to the

other without proof of special

harm if the offense imputed is

of a type which, if committed

in the place of publication,

would be (a) punishable by

imprisonment in a State or

Federal institution, or (b)

regarded by public opinion as

involving moral turpitude.



Restatement (Second)Torts, Section 571 (1977). The Supreme



Court further refined the standards to be applied in



defamation actions by private individuals in Gertz v. Robert

BARNES v. ETIENNE AND BANK OF NOVA SCOTIA

CIVIL NO. 673/1980



ACTION FOR DAMAGES



Page 5



Welch, Inc., 418 U.S. 323 (1974). Balancing the interests in



treedom of speech and press against the interest of private

persons to be free from defamatory falsehoods injurious to

their reputation, the court held that a cause of action for

defamation could be maintained on a negligence theory. See



also Restatement (Second) of Torts, Section 580B, comment c



(1977) (citing Gertz, supra). The Gertz Court further held



that, where a plaintiff fails to prove that the defendant



acted with knowledge of falsity or with reckless disregard for



1/



truth, = recovery is limited to compensation for “actual

injury," Gertz at 349, and stated:



We need not define "actual injury",

as trial courts have wide

experience in framing appropriate

Jury instructions in tort actions.

Suffice it to say that actual

injury is not limited to out-of-

pocket loss. Indeed, the more

customary types of actual harm

inflicted by defamatory falsehood

include impairment of reputation

and standing in the community,

personal humiliation, and mental

anguish and suffering. Of course,

juries must be limited by appro-

priate instructions, and all

awards must be supported by com-

petent evidence concerning the



1/



— Pursuant to Defendants' motion and having found that

the plaintiff had failed to establish that the statement was

published with knowledge of its falsity or with reckless

disregard for the truth, the Court dismissed plaintiff's claim

for punitive damages. See Gertz at 349.

BARNES v. ETIENNE AND BANK OF NOVA SCOTIA

CIVIL NO. 673/1980



ACTION FOR DAMAGES



Page 6



injury, although there need be



no evidence which assigns an



actual dollar value to the injury.

Gertz at 350.



Defendants assert that, even proceeding under the

negligence theory, plaintiff has not met her burden of proving

"actual injury". The Court cannot agree. The accusation of

forgéry in this case constituted slander per se, that is, by

its very nature it tended to injure Plaintiff's reputation.

Title 14 of the Virgin Islands Code, Section 791, makes

forgery a crime punishable by a fine of not more than Two

Thousand ($2,000.00) Dollars or imprisonment for not more than



ten (10) years, or both. It is irrelevant for the purposes of



the Restatement (Second) of Torts, Section 571l{a), that the



facts of this case did not indeed constitute the crime of

forgery. Comment c of* Section 571 states, “It is not

necessary that the charge be made in technical language. It

is enough that the language used imputes to the other the

criminal offense." Furthermore, ample testimony was given

regarding plaintiff's emotional state subsequent to the

confrontation with Etienne. Barnes testified that she was

embarrassed in front of her co-workers and described the

incident as one that "she could not forget". Moreover,

several other witnesses testified that Barnes was crying and



very upset by the accusation. The Court is unable to conclude

BARNES v. ETIENNE AND BANK OF NOVA SCOTIA

CIVIL NO. 673/1980



ACTION FOR DAMAGES



Page 7



as a matter of law that reasonable persons exercising their

impartial judgment could not have reached the same verdict.

Thus, it is the holding of this Court that there was

sufficient evidence to sustain the jury verdict.



Defendants take further exception to the jury's

finding that Barnes suffered emotional distress as a result of

the incident. At the heart of this objection -is the testimony

concerning the number of work days Barnes missed due to this

episode. Defendants point to the fact that Barnes's testimony

at trial on this subject conflicted with her deposition

testimony and claim, therefore, that she has failed to

establish with sufficient certainty the issue of emotional

distress.



In O'Neill v. Reading Company, 306 F.2d 204 (3d Cir.



1962), the court stated, "It is settled law that when a

witness gives contradictory testimony it is the function of

the jury, and not the court, to resolve the conflict." Id. at

205. The jury, hearing the testimony and judging the demeanor

of the witnesses, found the in-court testimony of Barnes to be

the most credible. The question for this Court, which it

answers in the affirmative, becomes one of determining whether



reasonable persons in the impartial exercise of their judgment



could have reached the same conclusion. Standard Alliance



Ind. v. Black Clawson Co., 587 F.2d 813 (6th Cir. 1977), cert.

BARNES v. ETIENNE AND BANK OF NOVA SCOTIA

CIVIL NO. 673/1980



ACTION FOR DAMAGES



Page 8



denied, 441 U.S. 923 (1979).



II. Propriety of Jury Instructions



A. Instruction number 17 advised the jury as to the

elements which must be established in order to maintain an

action for defamation. In particular, the Defendant takes

zssue with the third element of the instruction which provides

that, in order for the plaintiff to meet her burden, she must

prove that the defamatory communication "tended to injure the

reputation of the person". Defendant claims this Reqaqnazvicn

was misleading and insufficient. As stated previously, the

accusation in this case constituted slander per se. See



Cohen v. Raedler, Civil No. 1340/1978 at p.6, Territorial



Court of the Virgin Islands, filed May 13, 1980. Although

absent proof of actual injury plaintiff may not recover,

actual injury is not limited to harm to plaintiff's

reputation.



Emotional distress is among the types of harm which,

if proved, will permit recovery by the plaintiff. The

Restatement of Torts, Second, explains that "[t]he

constitution does not require proof of impairment to

reputation before damages for emotional distress can be



recovered". Restatement (Second) Torts, Section 621, comment



(b) (1977).

BARNES v. ETIENNE AND BANK OF NOVA SCOTIA

CIVIL NO. 673/1980



ACTION FOR DAMAGES



Page 9



Moreover, even assuming, arguendo, that Defendants'

contentions are correct, they would still not be entitled to

the relief sought. As long as liability without fault was not

imposed, the restriction imposed on courts in defamation

actions by the Gertz Court, any error would be harmless.



Further instructions were given defining "actual

injury" and explaining the quantum of proof necessary to

establish such injury. The jury was advised to consider the

instructions as a whole and not to single out any one

instruction and disregard others. Thus, the taint, if any, of

prior error was purged by these further instructions.



B. Defendants also claim that instruction number 25 was

improper in that it submitted to the jury an issue, i.e. an

accusation by Etienne that Barnes stole the money , on which

there was no evidence. After reviewing the trial transcript

the Court is satisfied that the evidence presented was

sufficient, as a matter of law, to support this instruction.

The record quite clearly reflects that the import of the

communication was that the plaintiff had stolen the money.

Barnes repeatedly testified that she had been accused of



forgery and stealing. Thus, both the direct testimony and the



import of the defamatory statement show that Etienne accused

Barnes of stealing. This inference permeated the entire



trial. Contrary to the Defendants' contention, this is not a

BARNES v. ETIENNE AND BANK OF NOVA SCOTIA

CIVIL NO. 673/1980



ACTION FOR DAMAGES



Page 10



case where no evidence was introduced regarding the accusation



made.



III. Excessiveness of the verdict



Considering Defendants' next contention that the

jury award was excessive, shocking and contrary to the weight

of the evidence, the court begins from the premise that it

must "indulge all presumptions in favor of validity of a



verdict". Ragnar Benson, Inc. v. Kassab, 325 F.2d 591, 594



(3d Cir. 1963). The court can not agree with defendants that

the award in this case was so excessive as to be

unconscionable.



Ample testimony was given as to the emotional

distress, anguish and embarrassment suffered by Barnes. This

testimony raised an issue of credibility which the jury

resolved in favor of the Plaintiff. Where, as here, the jury

was required to judge the veracity of the witnesses and where

the issues raised were "simple and easily comprehended by any

intelligent layman", the court may not substitute its judgment



tor that of the jury. Lind v. Schenly Industries, Inc., 278



F.2d 79, 91 (3d Cir. 1960).

Where a new trial is sought on the grounds that the



jury verdict was excessive, the motion will be granted only



when the award is "monstrous". See Affolder v. N.Y.C. & St.

“+



BARNES v. ETIENNE AND BANK OF NOVA SCOTIA



CIVIL NO. 673/1980



ACTION FOR DAMAGES



Page ll



IL ©



Cor



33900 SS.



101



(1950).



Plaintiff was



able toa



96,



introduce sufficient testimony regarding the emotional stress



suffered by her upon which the jury could rely in making this



award.



Hence,



where



f



as here,



the jury's award is not



i SO



inordinately large as obviously to exceed the maximum limit of



reasonable range within which the jury may properly operate,"



the court will not set aside the considered -judgment of the



jury.



Taylor v.



Washington Terminal Company,



409 F.2d 145,



149 (D.C. Cir.



1969).



It is therefore the judgment of this Court that



defendants’ motion for judgment notwithstanding the verdict of



in the alternative for a new trial must be DENIED.



DATED:



Ld



1983.



July fi



te



rat



|



—_



aKa



R. PET



RSEN



Judge