{ "id": 1555180, "name": "Deral Lee BOOKOUT, Plaintiff-Appellant, v. Travis GRIFFIN, G. L. Wiley and Albany Medical College of Union University, Erwin Schleicher and Gerhard Nohynek, Defendants-Appellees", "name_abbreviation": "Bookout v. Griffin", "decision_date": "1982-01-13", "docket_number": "No. 13704", "first_page": "336", "last_page": "345", "citations": [ { "type": "official", "cite": "97 N.M. 336" }, { "type": "parallel", "cite": "639 P.2d 1190" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "83 N.M. 379", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335562 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/83/0379-01" ] }, { "cite": "83 N.M. 380", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5342211 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0380-01" ] }, { "cite": "419 F.2d 62", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2162632 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/f2d/419/0062-01" ] }, { "cite": "68 N.M. 362", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2720633 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/68/0362-01" ] }, { "cite": "90 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872324 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0297-01" ] }, { "cite": "79 N.M. 293", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2744294 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0293-01" ] }, { "cite": "81 N.M. 371", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360601 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0371-01" ] }, { "cite": "79 N.M. 104", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2741512 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0104-01" ] }, { "cite": "68 N.M. 45", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2718857 ], "weight": 2, "year": 1961, "opinion_index": 1, "case_paths": [ "/nm/68/0045-01" ] }, { "cite": "77 N.M. 346", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804052 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "351", "parenthetical": "citation omitted" }, { "page": "38", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nm/77/0346-01" ] }, { "cite": "78 N.M. 556", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323899 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/78/0556-01" ] }, { "cite": "76 N.M. 501", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8503349 ], "weight": 2, "year": 1966, "opinion_index": 1, "case_paths": [ "/nm/76/0501-01" ] }, { "cite": "444 F.Supp. 193", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5742923 ], "opinion_index": 1, "case_paths": [ "/f-supp/444/0193-01" ] }, { "cite": "526 F.2d 83", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1089435 ], "weight": 2, "year": 1975, "opinion_index": 1, "case_paths": [ "/f2d/526/0083-01" ] }, { "cite": "200 Miss. 44", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1926949 ], "weight": 2, "year": 1946, "opinion_index": 1, "case_paths": [ "/miss/200/0044-01" ] }, { "cite": "88 N.M. 30", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2837265 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/88/0030-01" ] }, { "cite": "200 N.E.2d 778", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1964, "opinion_index": 1 }, { "cite": "252 N.Y.S.2d 95", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1964, "opinion_index": 1 }, { "cite": "14 N.Y.2d 899", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2269209 ], "year": 1964, "opinion_index": 1, "case_paths": [ "/ny-2d/14/0899-01" ] }, { "cite": "244 N.Y.S.2d 259", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1963, "pin_cites": [ { "page": "265" } ], "opinion_index": 1 }, { "cite": "19 A.D.2d 464", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 5527913 ], "year": 1963, "opinion_index": 1, "case_paths": [ "/ad2d/19/0464-01" ] }, { "cite": "250 Or. 160", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2091896 ], "weight": 2, "year": 1968, "opinion_index": 1, "case_paths": [ "/or/250/0160-01" ] }, { "cite": "84 N.M. 271", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765744, 2761935, 2764464, 2765591 ], "weight": 2, "year": 1972, "opinion_index": 1, "case_paths": [ "/nm/84/0271-04", "/nm/84/0271-01", "/nm/84/0271-03", "/nm/84/0271-02" ] }, { "cite": "84 N.M. 279", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770248 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/84/0279-01" ] }, { "cite": "85 N.M. 339", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2774172 ], "weight": 2, "year": 1973, "opinion_index": 1, "case_paths": [ "/nm/85/0339-01" ] }, { "cite": "85 N.M. 320", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2768477 ], "weight": 2, "year": 1973, "opinion_index": 1, "case_paths": [ "/nm/85/0320-01" ] } ], "analysis": { "cardinality": 1208, "char_count": 30560, "ocr_confidence": 0.795, "pagerank": { "raw": 1.423147668670786e-07, "percentile": 0.6494036911032265 }, "sha256": "f041d1c39b2a10cced09553aa18f8dd39be4141e1c5470082a8e66af6bcdeb0d", "simhash": "1:ec03b1899d0289fa", "word_count": 5053 }, "last_updated": "2023-07-14T20:10:51.585150+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "PAYNE and RIORDAN, JJ., concur.", "EASLEY, C. J., dissents.", "SOSA, Senior Justice, dissents and files an opinion." ], "parties": [ "Deral Lee BOOKOUT, Plaintiff-Appellant, v. Travis GRIFFIN, G. L. Wiley and Albany Medical College of Union University, Erwin Schleicher and Gerhard Nohynek, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nFEDERICI, Justice.\nThis is an appeal from the District Court in Otero County. Plaintiff (appellant) sought damages for libel, wrongful interference with contract, and conspiracy. Defendants, Dr. Schleicher and Mr. Nohynek, were never served with process. At the close of plaintiff\u2019s case, the court directed a verdict for defendant, Dr. Wiley. A directed verdict was also entered for all but the libel charge as to defendants (appellees), Dr. Griffin and Albany Medical College. The jury returned a verdict for plaintiff and awarded plaintiff $50,000 damages. The trial judge granted judgment notwithstanding the verdict, or in the alternative, a new trial. Plaintiff appeals.\nAs the Court of Appeals could not agree on a proposed opinion, this case has been certified to this Court pursuant to Section 34-5-14(C), N.M.S.A.1978 (Repl.Pamp.1981).\nI.\nWe affirm the conclusions of the trial court in directing a verdict since there was no evidence presented to support appellant\u2019s theories of wrongful interference with contract and conspiracy.\nThe additional issue we discuss on appeal is whether the trial court erred in granting the judgment notwithstanding the verdict. We affirm the trial court.\nII.\nThe facts show that appellant, Mr. Book-out, was employed as a veterinarian technician by appellee, Albany Medical College, at its chimpanzee breeding colony located at Holloman Air Force Base. Appellee, Dr. Griffin, was acting director of the Holloman facility, and appellee, Dr. Wiley, was a clinical veterinarian working in Mr. Book-out\u2019s section at the time of the incident involved in this case. Dr. Schleicher and Mr. Nohynek were scientists from Germany who visited the Holloman facility together on August 26, 1975.\nOn the day following their visit, Dr. Schleicher and Mr. Nohynek wrote a letter addressed to, Dr. Rosenblum (director of out-of-state facilities for Albany Medical College), Mr. Jack Weaver (personnel manager at the Holloman facility), and Dr. Griffin (appellee). The letter notes, that copies were to be sent to, Dr. Korte (head of the German research group in Germany which had an agreement with Albany Medical College regarding the use of the Holloman facility), Dr. Coulston (Dr. Griffin\u2019s supervisor, and director of the Albany Medical College units of which the Holloman facility was a part), and Mr. Murray (supervisor of the chimpanzee section of the Holloman facility and Mr. Bookout\u2019s immediate supervisor.\nThe letter was actually delivered to Dr. Griffin by Dr. Mueller (head of the group of German scientists working with Albany Medical College). The letter stated that during their visit, Mr. Bookout directed foul language at Dr. Schleicher and Mr. Nohynek, part of which referred, in crude terms, to Schleicher and Nohynek\u2019s nationality. The letter demanded a formal apology and requested that formal steps be taken to prevent similar incidents in the future.\nUpon receipt of the letter, Dr. Griffin contacted Dr. Coulston, Dr. Wiley and Mr. Weaver. Following discussions with these parties, it was determined that Mr. Bookout should be discharged from his employment. Following that determination, Dr. Griffin contacted Mr. Murray and informed him of the decision.\nDr. Griffin testified that the incident regarding Dr. Schleicher and Mr. Nohynek was not an isolated one as discharge had been considered following an incident about a week prior to Mr. Bookout\u2019s actual firing. The incident involved a report by Mr. Book-out to Dr. Griffin that Mr. Bookout suspected certain parties in the chimpanzee section were doing surreptitious research on the chimpanzees, and said if he, Mr. Bookout, caught any such person responsible, either he would kill that person himself or would place that person in a cage with a male chimpanzee and assist him in killing that person. Mr. Bookout believed that hormones were being injected into the female chimpanzees, the effect of which he believed would be a drop in the number of chimpanzees born to the breeding lab. Dr. Griffin testified that he investigated the allegations but concluded that they were without substance, and noted that Mr. Bookout\u2019s prognostication regarding the decrease in births did not come to pass. Dr. Griffin also stated that he interpreted Mr. Bookout\u2019s threats to constitute a potentially dangerous situation.\nAppellees introduced evidence that it was customary for Mr. Bookout to use coarse language and to speak in derrogatory terms about Germans. Mr. Bookout himself testified that he sometimes used salty language. Also introduced was an altercation between a police officer and Mr. Bookout which took place about five months prior to the incidents in this case wherein the police officer was bitten on the hand.\nMr. Bookout denied the allegations in the letter, and testified that there was proof regarding the alleged surreptitious research. He testified that special locks to the chimpanzee section had been broken, that footprints appeared in powder which had been left around the chimpanzee area to determine whether anyone had been in the area during unauthorized periods, and that the behavior of some of the female chimpanzees had become noticeably more aggressive.\nMr. Bookout claims that Dr. Griffin and Dr. Wiley never attempted to investigate the truth of the allegations in the letter before deciding to discharge Mr. Bookout. Dr. Wiley testified he assumed the letter was true, while Dr. Griffin testified that he discussed the matter personally with Mr. Nohynek before concluding the allegations in the letter were accurate.\nDuring the trial, appellant waived any claim for damages due to harm to his reputation, but claimed damages for lost earnings, emotional distress, and punitive damages. Appellant claims that the republication of the letter was the proximate cause of his discharge and his subsequent inability to find employment in the area of chimpanzee research. He argues that facilities such as that from which he was discharged are few in number, and once officials at these \u00abfacilities discovered that Mr. Bookout had been fired from the Holloman facility, they were not willing to hire him. Mr. Bookout testified that he wept when he heard he was fired and that he suffered emotional distress for at least two years after losing his job.\nAppellees claim a qualified privilege and contend that any emotional distress suffered by Mr. Bookout was due to being fired rather than to the contents of the letter.\nIII.\nGenerally, a statement is considered defamatory if it has a tendency to render the party about whom it is published contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or hinder virtuous men from associating with him. McGaw v. Webster, 79 N.M. 104, 440 P.2d 296 (1968). Liability for defamation depends on publication. Martinez v. Sears & Roebuck, 81 N.M. 371, 467 P.2d 37 (1970).\nThere are a number of defenses to a charge of libel. See generally, W. Prosser, Law of Torts \u00a7\u00a7 114-116 (4th ed. 1971). The primary defense involved in this case is that of qualified privilege. One form of qualified privilege exists where there is a good faith publication in the discharge of a public or private duty. Mahona-Jojanto, Inc., N.S.L. v. Bank of New Mexico, 79 N.M. 293, 442 P.2d 783 (1968). The privilege is abused if a person said to be privileged lacks the belief, or reasonable grounds to believe, the truth of the alleged defamation. Id.\nIV.\nWe conclude that Dr. Griffin had a qualified privilege to republish the letter at issue, and that the privilege was not abused by the republications which he made.\nThe record shows that any republications, when they amounted to such, and the decision to discharge Mr. Bookout, were done within the scope of Dr. Griffin\u2019s public duties. Also, Dr. Griffin acted reasonably under the circumstances. The record shows that the behavior attributed to Mr. Bookout in the letter was consistent with his conduct at other times.\nAs to the alleged harm resulting from publications to individuals beyond proper officials at the Holloman facility, proof in the record does not support appellant\u2019s claims. The record shows that Mr. Bookout made oral inquiries regarding the possibility of employment in out-of-state facilities similar to the Holloman facility, that he was informed there were no openings, and that two prospective employers knew from sources other than Mr. Bookout that he had been fired. Yet, the record is devoid of any showing that these possible employers knew of the letter or its contents or that the refusal of anyone to hire Mr. Bookout was in any way related to the contents of the letter.\nSince there was no abuse of qualified privilege, appellant is not entitled to damages for emotional distress, or for lost earnings, or to punitive damages. The trial court was correct in entering judgment notwithstanding the verdict in this case.\nAppellant contends that since the issue of sufficiency of the evidence to establish abuse of privilege was first presented during appellees\u2019 motion for judgment notwithstanding the verdict, that issue cannot now be raised on appeal. See N.M.R.Civ.P. 50(a), N.M.S.A.1978. Appellant\u2019s claim is without merit. We note that at the close of all. the evidence, appellees moved for a directed verdict on the grounds that \u201cthere has been no evidence in this case establishing legal cuase [sic] of damages to the plaintiff as a result of any publication on behalf of Albany Medical College or Dr. Griffin.\u201d (Emphasis added.) We are of the opinion that this statement sufficiently alerted the trial court to the issue of qualified privilege and abuse thereof, which led to his subsequent and final order granting judgment N.O.V. in which the court stated:\nAfter reviewing all of the evidence in the light most favorable to the Plaintiff, there is neither evidence nor inference from which the jury could have found that the privilege, which the Court found to exist as a matter of law, was abused, nor could the jury have found that any publication of the documents by the Defendants proximately caused any damage to Plaintiff after Plaintiff waived damages to his general reputation.\nJudgment notwithstanding the verdict is proper only when it can be said that there is neither evidence nor inference from which the jury could have arrived at the verdict. Owen v. Burn Const. Co., 90 N.M. 297, 563 P.2d 91 (1977); Romero v. Turnell, 68 N.M. 362, 362 P.2d 515 (1961). Although it is true that judgments notwithstanding the verdict are not proper where there is substantial conflicting evidence, Powell v. Lititz Mutual Insurance Company, 419 F.2d 62 (5th Cir. 1969), and that the trial court must view the evidence in the light most favorable to the party resisting the motion, Archuleta v. Johnston, 83 N.M. 380, 492 P.2d 997 (Ct.App.), cert. denied, 83 N.M. 379, 492 P.2d 996 (1971), we believe that the only reasonable conclusion which could be reached on the evidence presented in the instant case is that which was reached by the trial judge.\nIn addition to what has been said above, we are unable to detect from the record any improper motive on the part of Dr. Griffin when he published the letter or in the eventual discharge of Mr. Bookout. Mr. Book-out himself testified that he knew of no conspiratorial activities on the part of his supervisors to have him discharged. There is evidence that Mr. Bookout was involved in conflicts with some of his nonsupervisory associates, and that one of those associates was a good friend of Mr. Nohynek, but there is no evidence or inference that any of these associates took part in the decision to discharge Mr. Bookout.\nThe judgment of the trial court is affirmed.\nIT IS SO ORDERED.\nPAYNE and RIORDAN, JJ., concur.\nEASLEY, C. J., dissents.\nSOSA, Senior Justice, dissents and files an opinion.", "type": "majority", "author": "FEDERICI, Justice." }, { "text": "SOSA, Senior Justice,\ndissenting.\nI respectfully dissent.\nAlthough the majority sets out the proper standard for granting a judgment notwithstanding the verdict, they have misapplied the standard. The majority has chosen to believe all of the evidence presented in favor of the appellees and disregard all of the evidence in favor of the appellant.\nTo determine whether the trial court properly granted the appellees a judgment notwithstanding the verdict, we must be mindful of the following legal principles:\n(1) Bookout is entitled to have the testimony considered in a light most favorable to him;\n(2) Bookout is entitled to every inference of fact fairly deducible from the evidence;\n(3) evidence favorable to Bookout, together with inferences therefrom, are to be accepted as true;\n(4) conflicts or contradictions in the testimony must be resolved in favor of Bookout;\n(5) the jury must, under proper instruction, determine the weight and significance of each fact in evidence; and finally,\n(6) there must be neither evidence nor inference from which the jury could have arrived at its verdict. Leonard Motor Company, Inc. v. Roberts Corporation, 85 N.M. 320, 512 P.2d 80 (1973).\nThe majority has applied these standards to the moving party in the motion for judgment N.O.V., not Bookout, who prevailed. This is error.\nThe following is the evidence in the record which supports the jury\u2019s verdict:\nOn August 27, 1975, Erwin Schleicher and Gerhard Nohynek went to visit the chimpanzee breeding colony at the Albany Medical College of Union University (College). They were approached by Bookout, who escorted them to his supervisor, Mr. Murray, in order to inquire whether they had been granted permission to tour the facilities. Mr. Murray confirmed that he had given them permission. However, the German visitors then left the premises. Neither one of the visiting Germans mentioned to Mr. Murray that Bookout had treated them in a rude manner.\nThe following day, Dr. Mueller delivered a letter to Dr. Griffin, which was signed by Dr. Schleicher and Mr. Nohynek. The letter accused Bookout of directing opprobrious language toward them the day before. Although the letter noted that a copy was to be sent to Mr. Murray, he had to make a copy of the letter for himself.\nAfter receiving the letter, Dr. Griffin called in his subordinate, Dr. Wiley (to whom the letter was not directed), to discuss the contents of the letter with him. Dr. Wiley testified that he assumed the letter to be true, and, at that point, he and Dr. Griffin decided to dismiss Bookout. In fact, Dr. Wiley testified that he suggested that the dismissal be written.\nDr. Wiley then took a copy of the letter to his office and telephoned Mr. Murray, Bookout\u2019s supervisor, to meet with him. When Mr. Murray arrived, Dr. Wiley handed the letter from the Germans to him and a letter signed by Dr. Wiley and Dr. Griffin, which stated, \u201cI have been instructed by Dr. Coulston to dismiss you as of this date for your rudeness and insubordination to visiting scientists * * Although Dr. Griffin testified that he spoke with Dr. Coulston about the firing, Dr. Coulston informed Bookout that he did not know anything about the incident. Furthermore, Dr. Rosenblum later informed Bookout that Dr. Coulston\u2019s name was to have been taken off the dismissal letter.\nBookout was then called into Dr. Wiley\u2019s office. There, Mr. Murray showed Bookout the two letters and asked him for his tags and keys. No one, at any time, inquired of Bookout as to the truthfulness of the letter from the Germans, although Bookout denied its contents orally and in writing.\nMr. Murray, Bookout\u2019s immediate supervisor, testified that he was sympathetic to Bookout and his wife, who also worked at the College. He also testified that he would recommend Bookout for employment in spite of the letter from the Germans. Dr. Wiley testified that Bookout knew the animals very well and could perform procedures with them which many others could not, and, on that basis, he could have recommended Bookout for employment, until the incidents in August. In addition, a fellow employee who testified for the College stated that Bookout was a very good technician, knew his job and performed it well.\nBookout then testified about the decrease in his earnings and the emotional distress he suffered for a period of two years as a result of the firing.\nYet, the majority chooses to ignore this evidence and, instead, cull that evidence which, although disputed, favors the College and not the prevailing party, which is error.\nThe majority begins by noting that this was not an isolated incident; the College had considered firing Bookout due to a different incident a week before. The latter incident was an accusation by Bookout of surreptitious research at the College, and an allegation by Dr. Griffin that Bookout threatened to kill those who were conducting the surreptitious research. However, the majority ignores Dr. Wiley\u2019s testimony that there was some substance to Bookout\u2019s allegations, since the chimpanzees were not completely normal and ignored the fact that Bookout\u2019s supervisors allowed certain steps to investigate the allegations. With respect to the alleged threat by Bookout, the majority forgets that Bookout denied ever making any threats. It is not for us to weigh the evidence and determine credibility; fact finding is for the jury. Worthey v. Sedillo Title Guaranty Inc., 85 N.M. 339, 512 P.2d 667 (1973). The jury who saw the witnesses\u2019 demeanor while on the stand chose to believe Bookout.\nNext, Bookout\u2019s erroneous prognostication regarding a decrease in the birth rate of chimpanzees should be of no moment, since Bookout\u2019s error was not discovered until months after Bookout\u2019s dismissal and since he was not dismissed for this reason.\nThe majority opinion, then, refers to evidence that Bookout used coarse language. I agree that this is in the record. However, Bookout\u2019s immediate supervisor characterized Bookout\u2019s language as that of anybody who gets excited and concludes that, although he and Bookout had a couple of \u201ctiffs,\u201d thejr settled them in a \u201cnormal manner.\u201d Also in the record is salty language used by two witnesses for the College while testifying, and not as an echo of what Bookout may have said. Also significant to Bookout\u2019s usage of choice words is the fact that, although Dr. Griffin testified that he believed Bookout\u2019s behavior to be consistent with the contents of the letter, he also testified that he did not know whether Dr. Schleicher speaks English; if Dr. Schleicher did not, then he (Griffin) would not have believed the contents of the letter. Inconsistency? Yes! What does Bookout\u2019s customary behavior have to do with Dr. Schleicher\u2019s ability to speak English?\nThen comes the reference to the altercation Bookout had with a police officer. First, we know that assault is a misdemean- or. In this case, its prejudicial effect far outweighs its probative value. Secondly, we do not know whether the incident occurred in December or January of 1975, as the question from appellees\u2019 counsel was not clear. If it was December, then it was irrelevant, since it occurred after the incident which is the subject of this suit. Thirdly, the only one who knew about it was Mr. Murray. He testified that he really did not believe it when he read it in the newspaper. Besides that, Mr. Murray played no role in determining Bookout\u2019s character before they fired him.\nThe majority also notes that Dr. Griffin testified that he discussed the matter with Mr. Nohynek before concluding that the allegations in the letter were true. However, Dr. Wiley, who precipitated the firing, did not discuss it with Mr. Nohynek, nor did he know that Dr. Griffin had discussed it with him. Also, during deposition testimony in February 1978, Dr. Griffin testified that he did not recall where he discussed the matter with Mr. Nohynek. Yet, two years later, he recalled that Mr. Nohynek had gone to him to discuss the situation. We all know this goes toward credibility, and, as such, is for the jury.\nThere were sufficient facts and inferences therefrom for the jury to have concluded that the College and Dr. Griffin abused their qualified privilege.\nThe appeal on abuse of privilege should be denied for another reason. An analysis of N.M.R.Civ.P. 50(b), N.M.S.A.1978 (Repl.Pamp.1980), discloses that appellees\u2019 failure to raise the issue of abuse of privilege in their directed verdict motion constitutes a waiver of that ground for purposes of their judgment N.O.V. motion. Rule 50(b) states in pertinent part:\nWhenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion * * *. [A] party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned * * * may move for judgment in accordance with his motion for a directed verdict. [Emphasis added.]\nAt the close of all the evidence, appellees moved for a directed verdict on the grounds that \u201cthere has been no evidence in this case establishing legal cuase [sic] of damages to the plaintiff as a result of any publication on behalf of Albany Medical College or Dr. Griffin.\u201d\nSince the issue of sufficiency of the evidence to establish abuse of privilege was first presented during appellees\u2019 motion for judgment N.O.V. and was not raised in the original motion for a directed verdict, the issue was raised too late to be the subject of review. See Williams v. Town of Silver City, 84 N.M. 279, 502 P.2d 304 (Ct.App.), cert. denied, 84 N.M. 271, 502 P.2d 296 (1972); Williams v. Stockman\u2019s Life Insurance Company, 250 Or. 160, 441 P.2d 608 (1968).\nI, next, turn to an analysis of whether Bookout was entitled to any damages.\nIn an action for defamation, a plaintiff is entitled to recover an amount which will fairly compensate him for the injury suffered. Faulk v. Aware, Inc., 19 A.D.2d 464, 244 N.Y.S.2d 259, (1963), aff\u2019d, 14 N.Y.2d 899, 252 N.Y.S.2d 95, 200 N.E.2d 778 (1964). The court in Faulk stated that:\nThe plaintiff\u2019s prior earnings are an important factor in assessing the damage suffered when his earnings are cut off. His damage need not be limited to the level of his actual earnings at the time of the libel. His potential earnings may be taken into consideration when there is evidence to enable a jury to assess those potentialities. [Citation omitted.]\nId. 244 N.Y.S.2d at 265.\nIn the case at bar, four elements of damage were submitted to the jury: (1) lost earnings; (2) lost future earnings; (3) emotional distress; and (4) punitive damages. The jury was instructed on proximate cause and instructed that Bookout had the burden of proving that the publication of the libelous letter proximately caused the damages complained of. The jury was also instructed that the College claimed the affirmative defense of truth and that the court had found a qualified privilege in their favor. It was the jury\u2019s duty to determine whether the qualified privilege was abused, and, if they so found, Bookout would be entitled to a verdict in his favor if the jury also found that appellees failed to prove their affirmative defense of truth. The jury found an abuse of the qualified privilege and awarded Bookout $50,000.00 in damages. The fact finders\u2019 verdict should not be so subtly set aside.\nThe College argues that damages for loss of employment flowing from a libelous statement are not recoverable as a matter of law. Citing Garza v. United Child Care, Inc., 88 N.M. 30, 536 P.2d 1086 (Ct.App.1975), appellees reason that, since an employment relationship is terminable at will, a discharge without cause does not give rise to a breach of contract justifying recovery of damages. Garza is distinguishable in that it was an action for a breach of contract, whereas this is an action for libel. Moreover, the College did not discharge Bookout without cause, but discharged him for \u201crudeness and insubordination to visiting scientists,\u201d which was never proven to be true.\nThe College further contends that this Court should follow the holdings in Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So.2d 572 (1946), and Haddad v. Sears, Roebuck & Co., 526 F.2d 83 (6th Cir. 1975), which state that, in an action for libel, the jury cannot award any damages because the libeled employee is discharged. I cannot agree with appellees\u2019 argument. Neither of the two cases cited authority for their proposition, nor have the cases, themselves, been cited for that proposition. Moreover, Skinner, supra, was a 3-3 decision, and the statement in Haddad, supra, was mere dictum, since the holding of the case was based upon the issue of qualified privilege.\nThe better rule is in the Restatement (Second) of Torts \u00a7 622 (1977). \u201cOne who is liable for * * * a libel is also liable for any special harm legally caused by the defamatory publication.\u201d Special harm may be the. loss of earnings. Korry v. Intern. Tel. & Tel. Corp., 444 F.Supp. 193 (S.D.N.Y.1978). It may also be a failure to recognize a reasonable expectation of gain, such as the denial of employment, which the plaintiff would have received but for the defamatory statement. It is not necessary that the plaintiff be legally entitled to receive the benefits denied because of the defamation; it is enough that the defamation has disappointed a reasonable expectation of receiving a gratuity. See Restatement, supra, \u00a7 575, comment b. In the case at bar, there was more than an expectation of a gratuity; Bookout was employed as a veterinary technician at the chimpanzee breeding colony of the College, one of only a few facilities in the nation. He was discharged from his scarce position on the basis of allegations which have never been proven. Thus, Bookout having alleged loss of employment as a special harm, it was proper for the court to instruct the jury on lost earnings.\nAppellees also argue that their publication of the libelous letter was not the proximate cause of any emotional distress of Bookout. They contend that any emotional distress was a result of the firing, not of the libelous letter. I disagree. Bookout testified that he was bothered by the incident for about two years. He stated, \u201cto think that they fired me \u2014 and I done my best to do them a good job \u2014 and they had no more faith in me than to just fire me without even asking me about it.\u201d This testimony, together with that of his wife, supports the jury verdict that emotional distress was a proximate result of his being fired for an unwarranted reason.\nThe trial court erred in granting appellees\u2019 judgment N.O.V., sufficient evidence being presented to sustain the verdict. However, in its order granting judgment N.O.Y., the court stated:\nIT IS FURTHER ORDERED that in the event judgment for Defendants entered herein is reversed on appeal, the alternative motion of Defendants for a new trial is granted on the following grounds:\nA. The verdict is excessive.\nB. There is no reasonable basis upon which this Court can cure any excessive verdict by a remittitur.\nC. The damages awarded by the jury are so grossly out of proportion to the injury received by the Plaintiff that it shocks the conscience of the Court.\nD. The verdict appears to have been based upon passion and prejudice and not proved by a preponderance of the evidence.\nE. False issues were interjected in this case concerning the firing of Plaintiff that were not related to the defamation.\nThe granting of a new trial rests within the sound discretion of the trial court and will be reviewed only for a clear abuse of that discretion. Scott v. Brown, 76 N.M. 501, 416 P.2d 516 (1966). In the case at bar, the trial court did abuse its discretion in granting a new trial.\nMy discussion, supra, is dispositive of ground \u201cE\u201d of the trial court\u2019s order. The firing of Bookout was directly related to the defamation.\nThe remaining grounds each go to a determination of whether the damages awarded were so excessive as to be a result of passion and prejudice. See Lujan v. Reed, 78 N.M. 556, 434 P.2d 378 (1967). \u201cDamages awarded by a jury should not be ruled as excessive except in extreme cases.\u201d Chavez v. Atchison, Topeka and Santa Fe Railway Co., 77 N.M. 346, 351, 423 P.2d 34, 38 (1967) (citation omitted). In the case at bar, nothing in the record indicates that it is an extreme case or that the verdict was a result of passion and prejudice. It is difficult to envision how a jury can be prejudiced in favor of a plaintiff who has been made out to be an obstinate, immoral and incorrigible individual.\nFurthermore, Bookout testified that, from the time of his dismissal in 1975 until the trial, he had earned $22,000.00, and that he would have earned approximately $50,-000.00 had he been employed at the College. Dr. Griffin also testified that the College gives an annual salary increase of at least 7 to 7V4 percent. Thus, a minimum of $28,-000.00 represents Bookout\u2019s lost earnings up until the trial. Although Bookout\u2019s contract was terminable at will, his dismissal, based upon a libelous statement without an investigation, was special harm and is, therefore, compensable.\nAs to the remaining $22,000.00, the jury was instructed on future earnings, emotional distress and punitive damages. The verdict being general, it is difficult to determine exactly what the jurors considered in awarding the damages. None of these instructions were objected to by appellees and, as such, are not reviewable. Zamora v. Smalley, 68 N.M. 45, 358 P.2d 362 (1961). There exists in the record evidence of Bookout\u2019s emotional distress. Whether the jury made an award of $22,000.00 for this is uncertain; however, the verdict is supported by substantial evidence and is not so excessive that it shocks the conscience of the court.\nI would reverse and remand to the district court to vacate its judgment N.O.V. and a new trial, and to enter judgment in favor of Bookout for $50,000.00, with interest and costs, including those on appeal.\nFor all of the foregoing reasons, I respectfully dissent.\n. The signatures were never verified at trial.", "type": "dissent", "author": "SOSA, Senior Justice," } ], "attorneys": [ "Anthony F. Avallone, Las Cruces, for plaintiff-appellant.", "Wayne A. Jordon, Alamogordo, for defendants-appellees." ], "corrections": "", "head_matter": "639 P.2d 1190\nDeral Lee BOOKOUT, Plaintiff-Appellant, v. Travis GRIFFIN, G. L. Wiley and Albany Medical College of Union University, Erwin Schleicher and Gerhard Nohynek, Defendants-Appellees.\nNo. 13704.\nSupreme Court of New Mexico.\nJan. 13, 1982.\nRehearing Denied Feb. 5, 1982.\nAnthony F. Avallone, Las Cruces, for plaintiff-appellant.\nWayne A. Jordon, Alamogordo, for defendants-appellees." }, "file_name": "0336-01", "first_page_order": 366, "last_page_order": 375 }