Powers v. Gastineau

*1027 MILLER, Judge,

concurring in part and dissenting in part.

I concur with the majority, except for the reversal of punitive damages. I disagree with the majority's conclusion that a reasonable trier of fact could not find punitive damages by clear and convincing evidence and that the evidence was insufficient to support the jury's award of such damages. I would affirm the judgment of the trial court in all respects.

Punitive damages are designed to punish the wrongdoer and deter similar conduct in the future. Peru Daily Tribune v. Shuler (1989), Ind.App., 544 N.E.2d 560 . The majority finds that the jury could not have found any malice on Dr. Power's part except that resulting "from overzealousness or other noniniquitous human failing and that his actions were not so obdurate as to require punishment for the benefit of the general public." Op. at 1025. Iniquitous is defined by Webster's Third New International Dictionary 1168 (1976), as unjust, wicked, vicious. Presumably, a "noniniqui-tous human failing" would mean actions which are not unjust, not wicked and not vicious.

The jury was presented with the following evidence: William A. Powers, M.D., Chief of Staff and Medical Director of the Greene County Hospital, is held in high regard in the community. James Gasti-neau has cerebral palsy, complicated by damage in the removal of a brain tumor in his youth. He suffers from visible impediments in his speech, gait, balance, and vision. Despite his physical limitations, Gas-tineau attended Marian College in Indianapolis, graduating with majors in psychology, political science and completed 85 hours toward an MBA. Gastineau and Powers had been boyhood friends and Gas-tineau had, in the past, been Dr. Powers' patient. A jury could infer that Powers was aware of Gastineau's handicaps. Powers admitted that he knew some people equate the word "lunatic" with "insane" and he admitted that he had no basis for imputing any emotional or mental problems to Gastineau. |

The majority seems to base its reasons for reversing the punitive damage award on the fact that Dr. Powers said he had no ill will toward Gastineau; however, the jury was entitled to infer that Powers' actions spoke louder than words. Actual malice may often be thought of in terms of ill will, "but the essence of the concept is not the speaker's spite but his abuse of the privileged occasion by going beyond the seope of the purposes for which the privilege exists." Weenig v. Wood (1976), 169 Ind.App. 413 , 349 N.E.2d 235, 249 . The word 'malicious' means the absence of lawful excuse, unprivileged, not employed under cireumstances which excuse them. Id. In other words, malice is publishing matter with the knowledge that it is false or with reckless disregard as to whether it is false or not. Display Fixture Co. v. R.L. Hatcher, Inc. (1982), Ind.App., 438 N.E.2d 26 .

Apparently, Powers wrote the letters describing Gastineau as a "real lunatic" and a "first rate lunatic" in an attempt to influence the County Commissioners to fund Mrs. Powers' organization. A reasonable jury could have found-as this jury did-that his actions were more than negligent, more than merely overzealous and more than the result of a "noniniquitous" human failing, but instead his actions were an unnecessary, unjust, and vicious personal attack.

The jurors could have found that Dr. Powers abused his position of authority in the community by a personal attack on his former patient and former friend in an attempt to disparage the organization directed by Gastineau and to influence the commissioners to support his wife's organization. Dr. Powers could just as easily have influenced the commissioners by pointing out the merits of the GCARC or by citing specific reasons for his opinion that Gastineau's past activities indicated that he was "foolish." Under the circumstances, the jurors were entitled to find that labeling Gastineau a "first rate lunatic" was unnecessary, unjust and that such *1028 conduct should be punished and deterred by the award of punitive damages.