Filed: December 17, 1992
Stephen R. Brooks
Furbee, Amos, Webb & Critchfield
Fairmont, West Virginia
Attorneys for the Appellant
Brent E. Beveridge
Fairmont, West Virginia
Attorney for the Appellee
The opinion of the Court was delivered PER CURIAM.
1. "In considering whether a motion for judgment
notwithstanding the verdict under Rule 50(b) of the West Virginia
Rules of Civil Procedure should be granted, the evidence should be
considered in the light most favorable to the plaintiff, but, if it
fails to establish a prima facie right to recover, the court should
grant the motion." Syl. pt. 6, Huffman v. Appalachian Power
Company, 187 W.Va. 1, 415 S.E.2d 145 (1991).
2. "The essential elements for a successful defamation
action by a private individual are (1) defamatory statements; (2)
a nonprivileged communication to a third party; (3) falsity; (4)
reference to the plaintiff; (5) at least negligence on the part of
the publisher; and (6) resulting injury." Syl. pt. 1, Crump v.
Beckley Newspapers, 173 W.Va. 699, 320 S.E.2d 70 (1983).
This action is before this Court upon an appeal from the
October 24, 1991, order of the Circuit Court of Marion County, West
Virginia. The appellee, Todd Stalnaker, obtained a $50,000 jury
verdict against the appellant, Only One Dollar, Inc. This Court
has before it the petition for appeal, all matters of record and
the briefs of counsel. For the reasons stated below, the judgment
of the Circuit Court is reversed.
In 1989, the appellee, Todd Stalnaker, graduated from high
school and enrolled at Fairmont State College. During the
Christmas season that year, he was hired by the appellant, Only One
Dollar, Inc., at its Middletown Mall location in Marion County.
The appellant, headquartered in Virginia, operates approximately
170 stores throughout the country. Stalnaker's employment ended
after the Christmas season.
Stalnaker was later hired in February 1990 by the appellant.
The store manager found Stalnaker to be a "very good worker," and
Stalnaker continued to attend college classes.
Subsequently, Rebecca Stutler became the manager of the
store. Although the testimony at trial does not demonstrate any
significant personality conflict between Stalnaker and Stutler,
employment problems concerning Stalnaker arose. In July 1990,
Rebecca Stutler indicated upon a written evaluation form that
Stalnaker's job performance was largely below average, and Wesley
Gall, a district supervisor of the appellant store, placed
Stalnaker on thirty days probation. The probation decision was
based upon assertions that Stalnaker (1) had to be told to do
things he should have known to do, such as running the sweeper, (2)
talked to customers in a "monotone" voice and (3) "fidgeted" behind
In August 1990, the appellant discharged Stalnaker from
employment. The testimony of both parties indicates that Stalnaker
placed two bags of store-owned cough drops on a shelf in the
stockroom and consumed one cough drop from one of the bags. At
trial, Stalnaker contended that the store condoned the practice of
employees placing items of merchandise in the stockroom for later
purchase. Nevertheless, Stalnaker contends that he was confronted
by manager Rebecca Stutler, accused of stealing and fired from his
In her testimony, Rebecca Stutler stated that she discharged
Stalnaker, but denied that she accused him of stealing. She
indicated that it was against store policy for employees to consume
food items prior to paying for them. Various documents of the
appellant concerning reasons for the discharge of Stalnaker are not
consistent. "Mishandling of company funds" appears upon copies of
some documents, but not on official company records.
One month following the discharge of his employment, Stalnaker
began working at the Ramada Inn in Morgantown, West Virginia. He
asserts, however, that the discharge damaged his reputation and
lessened his chances for future employment.
A three count complaint was filed by Stalnaker in the Circuit
Court of Marion County. The primary count, Count I, alleges that
the appellant, Only One Dollar, Inc., "falsely, willfully and
maliciously libelled and slandered plaintiff by its false
accusation of misappropriating a box of cough drops from its
Middletown Mall store." The complaint, in Count I, further alleges
that the appellant disseminated or will disseminate "the false
accusation of misappropriation of the cough drops to future
employers." The remaining counts of the complaint allege that
Stalnaker was discharged from his employment with the appellant in
an abusive manner and in a manner calculated to cause Stalnaker
The appellant filed a motion for summary judgment. Stalnaker
did not oppose the motion "except as to the claim of defamation."
On September 5, 1991, the Circuit Court granted summary judgment
upon "all issues raised in the complaint except for the issue of
defamation . . ." and the parties proceeded to trial upon that
Trial began on September 5, 1991, and the following day the
jury returned a verdict for Stalnaker in the amount of $50,480,
which included $480 in lost wages, $25,000 in general damages for
defamation and $25,000 in punitive damages. A judgment order was
entered upon the jury's verdict. However, upon the Circuit Court's
consideration of the appellant's post-trial motions, an order was
entered on October 24, 1991, deducting the $480 in lost wages from
the verdict and otherwise entering judgment for Stalnaker.
It is from the order of October 24, 1991, that the appellant,
Only One Dollar, Inc., appeals to this Court.
At the outset, it should be restated that only the defamation
issue is before this Court. As set forth in the order of September
5, 1991, Stalnaker did not oppose the appellant's motion for
summary judgment, "except as to the claim of defamation."
Following the trial, the appellant filed a "Motion for
Judgment Notwithstanding the Verdict, or, in the Alternative, for
a New Trial." See, W.Va. R. Civ. P. 50(b) and 59. In syllabus
point 6 of Huffman v. Appalachian Power Company, 187 W.Va. 1, 415
S.E.2d 145 (1991), we recognized:
In considering whether a motion for judgment notwithstanding the verdict under Rule 50(b) of the West Virginia Rules of Civil Procedure should be granted, the evidence should be considered in the light most favorable to the plaintiff, but, if it fails to establish a prima facie right to recover, the court should grant the motion.
In view of the record before this Court, syllabus point 1 of
Crump v. Beckley Newspapers, 173 W.Va. 699, 320 S.E.2d 70 (1983),
is dispositive. As this Court stated:
The essential elements for a successful
defamation action by a private individual are
(1) defamatory statements; (2) a nonprivileged
communication to a third party; (3) falsity;
(4) reference to the plaintiff; (5) at least
negligence on the part of the publisher; and
(6) resulting injury.
Those elements have been cited by this Court in subsequent
cases: Rand v. Miller, ___ W.Va. ___, 408 S.E.2d 655, 658-59
(1991); syl. pt. 3, Bryan v. Massachusetts Mutual Life Insurance
Company, 178 W.Va. 773, 364 S.E.2d 786 (1987); Crain v. Lightner,
178 W.Va. 765, 772, 364 S.E.2d 778, 785 (1987).
In spite of the assertion that Stalnaker's discharge became
public knowledge, especially at the Middletown Mall, there is
nothing in the trial testimony to suggest that either Rebecca
Stutler or Wesley Gall, the appellant's employees, told anyone
about the discharge.
When asked directly, the witnesses at trial indicated that Rebecca Stutler never stated that Stalnaker was discharged, but, rather, that he quit his employment. Specifically, Stalnaker testified that he had no knowledge that Rebecca Stutler told anyone about the discharge. Nor were the appellant's documents concerning the discharge made known beyond the appellant's internal management. As the appellant's brief states:
Rebecca Stutler did not tell anyone other
than persons to whom she was required to
report within the company that Mr.
Stalnaker's employment was terminated. Ms.
Stutler even told some inter-company persons
who asked that Mr. Stalnaker quit his job. No
evidence was produced at trial by the
plaintiff to the contrary. Indeed, there is
no evidence that anyone from Only One Dollar
disclosed his employment termination
outside of the appropriate channel within the
company. (Record citations omitted)
On the other hand, the record is clear that Stalnaker told
others that he had been discharged by the appellant. Shortly after
the discharge, he told, in addition to his parents and brother, (1)
Tammy Barcus, an employee of the appellant working in Morgantown,
West Virginia, (2) Cindy Poling, a former employee of the
appellant, (3) Alicia Vincent, his fiancee, and (4) Craig Richards,
an employee of the appellant. Moreover, the record indicates that
some of the above individuals told others about the discharge. The
record indicates that Stalnaker himself mentioned the allegation of
stealing in some instances.
With regard to the appellant's documents, the confusion
concerning the "mishandling of company funds" phrase was brought
about by manager Rebecca Stutler's failure to delete that reference
from various copies of company records.See footnote 1 The official records of
the appellant, however, contain no reference to "mishandling of
company funds" with respect to the appellant. Cf. Mutafis v. Erie
Insurance Exchange, 174 W.Va. 660, 328 S.E.2d 675 (1985).
Upon all of the above, this Court is of the opinion that no
evidence was presented, beyond speculation, upon which the jury
could have concluded that the appellant distributed an allegation
of stealing to any other person. Stalnaker did not establish the
elements set forth in syllabus point 1 of Crump, supra.
All other issues raised in this appeal are without merit.
The judgment of the Circuit Court of Marion County is reversed, and
this action is remanded to that Court for the entry of a judgment
in favor of the appellant, Only One Dollar, Inc.
Reversed and remanded.
Footnote: 1Ms. Stutler stated that, at the time of Stalnaker's discharge, she checked a box on a form indicating "mishandling of company funds" because she did not know how to characterize the discharge. Apparently, none of the other boxes precisely fit Ms. Stalnaker's perception of the nature of the discharge. She later deleted that indication from the official records.