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Chuy v. Philadelphia Eagles Football Club and National Football League

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


filed: March 16, 1978.

DON CHUY
v.
THE PHILADELPHIA EAGLES FOOTBALL CLUB AND THE NATIONAL FOOTBALL LEAGUE, THE PHILADELPHIA EAGLES FOOTBALL CLUB (SUED AS "THE PHILADELPHIA EAGLES"), APPELLANT IN NO. 77-1411 DON CHUY, APPELLANT IN NO. 77-1412

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 71-1802)

Author: Van Dusen

Before GIBBONS and VAN DUSEN, Circuit Judges, and FISHER, District Judge*fn*

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

This case arises from a judgment entered on a jury verdict awarding Donald Chuy recovery for breach of contract and intentional infliction of emotional distress against the Philadelphia Eagles Football Club, but denying plaintiff recovery for defamation. After trial, the Eagles moved pursuant to Rule 50(b) for judgment notwithstanding the verdict and, in the alternative, for a new trial on the contract and intentional infliction of emotional distress claims. Chuy moved for a new trial on the defamation claim. Both parties appeal the district court's January 31, 1977, order denying their respective post-trial motions. We affirm the district court's denial of the Eagles' post-trial Rule 50(b) motion, but reverse the district court's denial of Chuy's motion for a new trial. Thus, we remand for a new trial limited to the defamation claim of Chuy's complaint.

I. FACTS

Donald Chuy broke into the ranks of professional football as a rookie offensive guard for the Los Angeles Rams in 1963. In May 1969, the Rams traded Chuy to the Philadelphia Eagles. His contract, which had one year remaining at $25,000. per season, was assigned to the Eagles pursuant to the trade deal. In June 1969, prior to the opening of training camp, Chuy flew from his home in California to Philadelphia to discuss his contract with Eagles' officials. After some negotiating, Chuy and Eagles' General Manager, Pete Retzlaff, reached agreement. Precisely what the parties negotiated and intended as their agreement remained in dispute at trial. However, Chuy and Retzlaff affixed their signatures to three National Football League Standard Players Contracts. The terms covering duration and compensation on these three contracts also remained in dispute.

The form contracts contained a standard NFL provision entitling a player injured during a game to full compensation for the term of his contract. Don Chuy sustained a serious injury to his shoulder in a game against the New York Giants in November 1969. Sidelined for the remainder of the season, Chuy had to be hospitalized for three weeks during December 1969. During that hospitalization Chuy was diagnosed to have suffered a pulmonary embolism, a blood clot in his lung. Chuy's examining physician advised him to cease participation in contract sports such as football and wrestling, in which Chuy often engaged during the off-season. On that advice, Chuy decided to retire from pro football and he communicated his intention to General Manager Retzlaff. At the same time, Chuy requested that the Eagles pay him for the remaining two years of what he contended was a three-year contract.

The Eagles requested that Chuy submit to a physical examination, which was performed by a Dr. Dick Harrell in March 1970. Dr. Harrell conducted extensive tests and concluded that Chuy suffered from an abnormal red blood cell condition, stress polycythemia, which may have predisposed him to the formation of dangerous blood clots. On that basis, Dr. Harrell recommended to the Eagles that Donald Chuy should no longer play professional football.

Shortly after learning of Dr. Harrell's recommendation, Pete Retzlaff informed Hugh Brown, a sports columnist for the Philadelphia Bulletin, that Chuy had been advised to quit football because of his blood clot condition. After speaking to Retzlaff, Brown telephoned Dr. James Nixon, the Eagles' team physician, to gather more information on Chuy's medical status for his column. A central issue at trial was whether Dr. Nixon told Brown that Chuy was suffering from polycythemia vera, a potentially fatal blood condition of greater severity than stress polycythemia. Mr. Brown testified that Dr. Nixon called Chuy's condition polycythemia vera (N.T.Mar. 3, 1976, 19; 83a). Dr. Nixon testified that he informed Mr. Brown that Chuy had an elevated red blood cell count, suggestive of a form of polycythemia. To illustrate the different types of polycythemia, Dr. Nixon recalled mentioning polycythemia vera as an example, but that he did not say Chuy suffered from it (N.T. 452-56; 781a-85a).

On April 9, 1970, Hugh Brown's by-lined column carried an account of Chuy's premature retirement. The column opened with these two paragraphs (970a):

"It's a jaw-breaker . . . Polycythemia Vera . . . and the question before the house is how Don Chuy, the Eagles' squatty guard, got hit with the jawbreaker.

"'One of the consequences of Polycythemia Vera,' said Dr. James Nixon, the Eagles' physician, 'is that the blood cells get in each other's way. It's a definite threat to form embolisms, or emboli,'"

The remainder of the column contained quotes from Retzlaff, Dr. Nixon, and Chuy's attorney concerning Chuy's medical condition and his effort to receive compensation on his putative three-year contract. The AP wire service picked up the story and articles appeared the next day throughout the country, including the Los Angeles Times, reporting that Chuy was forced to retire and that "Dr. James Nixon, Eagles' physician, said Chuy is suffering from Polycythemia Vera" (App. 971a-72a).

The uncontroverted evidence at trial indicated that polycythemia describes a number of different conditions involving excessive red blood cells. Stress polycythemia is not a life-threatening condition, while polycythemia vera is potentially fatal. All doctors who testified to having examined Mr. Chuy agreed that he definitely never suffered from polycythemia vera.

After reading the Los Angeles Times' report of Dr. Nixon's account of his illness, Chuy panicked and immediately called his personal physician, Dr. John W. Perry. Dr. Perry informed Chuy that polycythemia vera was a fatal disease but that, from his records, Chuy did not in fact have the disease. Dr. Perry recommended additional testing to verify that Chuy did not in fact have polycythemia vera. Despite Dr. Perry's qualified assurances, Chuy testified that he believed Dr. Nixon would not have publicized his diagnosis unless true (N.T. 82; 349a). Chuy testified that his "mind just snapped" (Id.) Even while in Dr. Perry's office, Mr. Chuy broke down emotionally (N.T. 83-84; 350a-51a). Afterwards Chuy became a "mental wreck," marital difficulties ensued, and his physical condition worsened (N.T. 84-88; 351a-55a). Several months elapsed before Mr. Chuy put himself under Dr. Perry's care and submitted to tests, which disproved the existence of polycythemia vera.

Donald Chuy brought suit, alleging antitrust violations, breach of contract, intentional infliction of emotional distress, and defamation. The district court's dismissal of the antitrust claim, 407 F.Supp. 717 (E.D.Pa. 1976), has not been appealed. At trial, the district court submitted the remaining claims to the jury by means of special interrogatories addressed to the factual predicates for the legal elements of each cause of action.

On the contract claim the jury found that Chuy and the Eagles intended that, were Chuy unable to play football during the 1970 and 1971 seasons because of a footballrelated injury, the Eagles would compensate Chuy for both seasons. Answer to interrogatories 1, 4 (965a-67a). The jury also found that Chuy's injuries sustained during the 1969 season rendered him unable to play in either 1970 or 1971. Answer to interrogatory 5 (967a). On the basis of these findings, the district court molded a damage award for breach of contract in the amount of $45,000. This amount reflected $60,000. in salary owed Chuy for the 1970 and 1971 seasons, minus a $15.000. debt Chuy owed the Eagles. The Eagles' appeal challenges the judgment imposing contractual liability for the 1970 and 1971 seasons.

On the intentional infliction of emotional distress claim, the jury found that Dr. Nixon told Hugh Brown that Chuy was suffering from polycythemia vera. Answer to interrogatory 7 (968a). The jury also found that the natural and probable consequence of the statement was that it would come to Chuy's attention. Further, they found the natural and probable consequence of its coming to Chuy's attention rendered the statement shocking or outrageous or exceeding the bounds of decency. Answer to interrogatory 9 (969a). The jury also found that the Eagles exerted the right to control and actual control over statements made by Dr. Nixon to the press concerning the physical condition of Eagles' players. Answer to interrogatory 6 (967a). Based on these answers, the district court made a finding of tortious liability. The amount of damages from the making of the statement was calculated by the jury at $10,000. compensatory damages and $60,590.96 punitive damages. The Eagles' appeal challenges the imposition of liability and the award of damages in every respect.

On the defamation claim, the jury found that Dr. Nixon's statements tended to injure his reputation, but that Hugh Brown did not understand that the effect of publication of Dr. Nixon's statements would be to harm Chuy's reputation. Answer to interrogatory 8 (968a). On the basis of these answers, the district court entered judgment against Chuy on his defamation claim. Chuy challenges this denial of liability.

After judgment was entered on March 15, 1976, against the Eagles in the sum of $115,590.96 (1135a), both parties filed their post-trial motions seeking either judgment notwithstanding the verdict or a new trial. The Eagles' motions were addressed to the contract and intentional infliction of emotional distress claims. Chuy's motion sought a new trial on defamation. The district court denied all post-trial motions in its January 31, 1977, order. Both parties appeal from that final order.

II. CONTRACT ISSUE

The Eagles principally contend that, as a matter of law, the three "standard player contract" forms executed by the parties on June 16, 1969, plainly constituted on their faces three separate, consecutive, one-year contracts and that this unambiguous construction should have been given effect by the trial court without resort to parol evidence of the parties' intent and understanding. The district court concluded that the three written contract forms signed by Chuy and the Eagles' General Manager, Pete Retzlaff, were properly construed together, that they were reasonably susceptible to ambiguity and that the jury should resolve the ambiguity on the basis of pertinent parol evidence. We must decide whether the district court erred as a matter of law in submitting to the jury the task of determining the meaning of Chuy's contract with the Eagles.

The cardinal rule of construction of contracts is that the intent of the parties at the time of the making of the contract is controlling. Kennedy v. Erkman, 389 Pa. 651, 655, 133 A.2d 550, 552 (1957). Under Pennsylvania law, the intent of contracting parties is exclusively determined from the written instrument if its words are "clear and unambiguous." Kennedy v. Erkman, supra. See East Crossroads Center, Inc. v. Mellon-Stuart Co., 416 Pa. 229, 205 A.2d 865 (1965); United Refining Co. v. Jenkins, 410 Pa. 126, 189 A.2d 574 (1963). When the language of the written contract is ambiguous, extrinsic or parol evidence is admissible to resolve the ambiguity. In re Herr Estate, 400 Pa. 90, 94, 161 A.2d 32, 34 (1960); Kennedy v. Erkman, supra; Castellucci v. Columbia Gas, Inc., 226 Pa.Supper. 288, 292, 310 A.2d 331, 333 (1973). While the court is to construe and give legal effect to an unambiguous written contract, see Pines Plaza Bowling, Inc. v. Rossview, Inc., 394 Pa. 124, 145 A.2d 672 (1958), once the court determines that parol evidence is relevant to the construction of an ambiguous contract, the jury must resolve the ambiguities and determine the parties' intent. Easton v. Washington County Insurance Co., 391 Pa. 28, 35-36, 137 A.2d 332, 336 (1957); Castellucci v. Columbia Gas, Inc., 226 Pa.Super. 288, 294, 310 A.2d 331, 334 (1973).

The "standard player contract" adopted by the professional football leagues details the respective rights of the player, club and league. The only non-standardized provisions requiring individualized negotiation and agreement are the term of the contract*fn1 and the amount of compensation.*fn2 On the standard form contract, blanks appear where the parties must fill in the termination date of the contract and the amount of compensation payable for each football season during the term of the contract. Don Chuy and the Philadelphia Eagles Football Club executed three standard player contract forms, each dated June 16, 1969. On one form, the termination date in paragraph 1 was the 1969 football season (App. 1026a). On the others, the years 1970 and 1971 were typed in, respectively (App. 1030a, 1034a). On each form the amount of $30,000. was entered in the blank space in paragraph 3 (App. 1026a, 1030a, 1034a).

The term of coverage and compensation per season are determinative of Chuy's entitlement under paragraph 14 of the standardized player contract (1028a):

"14. In the event that Player is injured in the performance of his services under this contract . . . the Club will . . . (2) continue, during the term of this contract, to pay Player his salary as provided in P 3 . . . if and so long as it is the opinion of the Club Physician that Player, because of such injury, is unable to perform the services required of him by this contract."

Injured during the 1969 football season and forced to retire for medical reasons, Mr. Chuy claimed compensation under paragraph 14 through the 1971 season. The Eagles, having construed each contract as a single year agreement, argued that only the 1969 season's contract was in effect at the time of Mr. Chuy's football-related injury.

The plain meanings of paragraph 1 of the contracts, as executed, were to create respectively a one-year contract for the 1969 season, a two-year contract for the 1969 and 1970 seasons, and a three-year contract for the 1969-1971 seasons. Such overlapping terms of coverage rendered highly ambiguous the meanings of paragraph 14 in the executed contracts. Thus, the district court did not err in admitting parol evidence to clarify the intent of the parties as to the duration of their contract and the applicability of paragraph 14's provision for complete compensation for football-related injuries. Moreover, under well-settled Pennsylvania law, the jury, was properly called upon by the trial court to determine the intent of the parties.*fn3

The jury heard testimony from Mr. Chuy and Eagles' officials concerning the negotiations conducted on the day of the signing of the contracts. Chuy recounted that he had requested a three-year, no-cut no trade contract for $100,000. total (N.T. 32-33; 297a-98a). He also testified that Retzlaff responded by offering a three-year contract for $90,000., including a $15,000. advance, but not including the no-cut no-trade provision. Chuy recalled that Retzlaff repeatedly described the Club's offer as a "$90,000 package" (N.T. 36; 301a). Retzlaff, in his testimony, denied ever having offered a three-year contract or characterizing his offer as a three-year package (N.T. 10-13; 577a-80a). The jury, after hearing all the testimony, answering in response to the special interrogatories that both Chuy and the Eagles' General Manager manifested an intent and beliefs that if Mr. Chuy sustained a football-related injury in 1969 and as a result was unable to play in 1970 and 1971, the Eagles would be liable to him for salary for 1970 and 1971 (special interrogatories 1, 4; 965a-67a).

On an appeal from denial of a motion for judgment notwithstanding the verdict, this court must view all the evidence and inferences reasonably drawn therefrom in the light most favorable to the party with the verdict. Kademenos v. Equitable Life Ins. Soc'y, 513 F.2d 1073, 1074 (3d Cir. 1975). After reviewing the pertinent trial testimony, we find sufficient evidence from which the jury could have found that the parties intended that Chuy would be compensated for three years for any football-related injury crippling his career.*fn4 Thus, we find no error in the trial judge's denial of defendant's motion for judgment n.o.v. on Chuy's contract claim.*fn5

III. LIABILITY FOR TORT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

A.

Chuy's recovery of damages for his emotional distress, stemming from reading Dr. Nixon's statement that he was suffering from polycythemia vera, was predicated upon the principle contained in § 46 of the Restatement (Second) of Torts of the tort of intentional infliction of emotional distress. Section 46 defines this tort as follows:

"One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm."

Although the Pennsylvania Supreme Court has not as yet specifically adopted in its entirety the Restatement's formulation and comments, the Pennsylvania courts have clearly signalled their acceptance of this evolving tort. Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970);*fn6 Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963);*fn7 Jones v. Nissenbaum, Rudolph & Seidner, 368 A.2d 770 (1976).*fn8 In light of the extant case law, we believe that the blackletter rule of § 46 of the Restatement (Second) of Torts, along with the interpretive comments, may be applied as the basis in Pennsylvania law of the tort of intentional infliction of emotional distress.*fn9

The Eagles first assign as error the district court's submission to the jury of the matter of whether Dr. Nixon's statements were "extreme and outrageous conduct."*fn10 The Eagles contend that characterization of an actor's conduct is to be made as a matter of law by the court in limine. Comment h to § 46, upon which the Eagles rely, divides the functions of court and jury in a conventional manner.*fn11 The court must determine, as a matter of law, whether there is sufficient evidence before the jury for reasonable men to find extreme or outrageous conduct. If the plaintiff has satisfied this threshold evidentiary requirement, the jury must find the facts and make its own characterization. The district court followed precisely the Restatement's procedure.*fn12

In regard to the application of the legal standard of the sufficiency of the evidence establishing extreme and outrageous conduct, the district court correctly ruled that Dr. Nixon's statements to the sportswriter, Hugh Brown, asserting that Donald Chuy suffered from polychthemia vera, knowing that he did not have the disease,*fn13 could be reasonably regarded as extreme and outrageous conduct. Comment d to § 46 describes the appropriate legal standard for characterizing conduct as outrageous:

"d. Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'"

Being informed, albeit secondhand, by a doctor who knew the contrary, that you suffer from a fatal disease constitutes intolerable professional conduct. Disseminating the falsehood through the national press compounds the harm. Surely Dr. Nixon's statements, as understood by the jury, went beyond the "mere insults, indignities . . . or annoyances" to which people are expected to become hardened.*fn14 See Restatement (Second) of Torts § 46, comment d.

The Eagles also assert that Dr. Nixon was not proven to have displayed the requisite intent to cause Chuy emotional distress. Section 46 does not recognize liability for mere negligent infliction of emotional distress. See Conway v. Spitz, 407 F.Supp. 536 (E.D.Pa. 1975). However, reckless conduct which causes emotional distress renders the actor as liable as if he had acted with the knowledge or desire to cause such distress. Comment i to § 46 describes the requisite state of mind element:

"i. Intention and recklessness. The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct. It applies also where he acts recklessly . . . in deliberate disregard of a high degree of probability that the emotional distress will follow."

The district court's instructions focused not on the subjective ill-will of either Dr. Nixon or the Eagles management but rather on the evidence that Dr. Nixon's statements to the press exhibited reckless disregard of the probability that Chuy's emotional distress would follow. The Eagles contend that the district court erred in the manner in which it charged the jury as to intent and recklessness and also that there was no evidence to support a finding of the requisite mental state.

To facilitate the jury's answering the interrogatories, the district court instructed them on the elements of the tort of infliction of emotional distress. With respect to requisite intent, the jury was instructed that the plaintiff could prevail only if the jury found (a) that Dr. Nixon's statement was intentional and (b) that the natural and probable consequences of making the statement were that it would become known to Chuy and that such awareness would cause him emotional distress.*fn15 Intentionally to propagate a falsehood, the natural and probable consequences of which will be to cause the plaintiff emotional distress, is equivalent to, in the language of the Restatement's comment i, the deliberate disregard of the high degree of probability that the emotional distress would follow. Thus, the district court's instruction comported with the substance of the Restatement's requirement of recklessness.*fn16

Beyond the characterization of Dr. Nixon's statement as reckless and outrageous, the Eagles contend that Chuy's reaction to the statement was exaggerated and unreasonable and, therefore, that no liability lies. The Eagles point to evidence that Chuy, after reading Dr. Nixon's quote in the local newspaper, refused to undergo tests which he had been advised would disprove the presence of polycythemia vera. Nor did Chuy attempt to contact Dr. Nixon or Dr. Harrell to verify the newspaper account of his illness. Instead, Chuy became despondent and emotionally unstable, and delayed tests for a period of six months. The Eagles assert that Chuy's failure to promptly secure medical verification of his putative illness was unjustified, precluding liability for the tort of infliction of emotional distress.

Comment j to § 46 requires that a plaintiff prove that he or she suffered severe distress that is not unreasonable, exaggerated or unjustified. The same comment further notes that severe distress may encompass mental anguish, fright, horror, grief, worry and other emotional disturbances. The extent or the severity is to be measured by whether any "reasonable man could be expected to endure it." Restatement (Second) of Torts, § 46, comment j. The jury in this case was asked to determine whether the "natural and probable" impact of Dr. Nixon's statements rendered the statements beyond the bounds of decency (interrogatory 9(b), n.11). Thus, implicit in the jury's affirmative answer to interrogatory 9(b) is their determination that a person of ordinary sensibility could not have withstood the distress without severe mental anguish.

Liability for infliction of emotional distress accrues from the point of stress and resultant emotional disturbance. In this case there is no hint that Chuy feigned his mental anxiety. A person of ordinary sensibilities, when informed by a doctor that he or she suffers from a fatal disease striking unexpectedly in the prime of life, reacts reasonably and justifiably by suffering severe emotional distress.

None of the cases cited by the Eagles requires as an element of the cause of action that the victim of an infliction of severe distress seek to alleviate that distress by immediate medical treatment or verification.*fn17 The district court instructed the jury that if they found that Chuy unreasonably failed to minimize his injuries, they could accordingly reduce his damage award (N.T. 615, App. 944a). We believe these instructions correctly distinguished between the severity of distress as an element of liability and the reasonableness of the victim's ameliorative actions as a failure to mitigate damages. Thus, the jury was properly instructed on the significance of Chuy's reluctance to undergo extensive medical testing after becoming inflicted with emotional distress.

Even assuming, arguendo, that Dr. Nixon committed a tort, the Eagles contend they should not have been held vicariously liable as a master responsible for the torts of his servant. Under Pennsylvania law, a master-servant relationship is established if the employer had the power to control and direct the conduct of the employee. A master is liable for the torts of his servant if the latter's tortious conduct was within the scope of his employment, i.e., conduct performed to further the business of the employer and not for the servant's personal purposes. Norton v. Railway Express Agency, Inc., 412 F.2d 112, 114 (3d Cir. 1969); Mauk v. Wright, 367 F.Supp. 961 (M.D.Pa. 1973). The existence of a master-servant relationship and conduct within the scope of employment are factual issues for the jury. Norton, supra; Anzenberger v. Nichols, 413 Pa. 543, 198 A.2d 309 (1964).

The jury in this case specifically found in its answers to interrogatory 6 that the Eagles had the right to control, and actually exerted control over, the substance of Dr. Nixon's statements to the press concerning the physical condition of the team's players. While the Eagles may be correct that Dr. Nixon performed his surgical duties as an independent contractor immune from team control, the jury was properly instructed to focus only on Dr. Nixon's role as press spokesman about players' medical status. There was ample evidence in the record that in regard to that limited function Dr. Nixon was subject to potential and actual control by team officials. Moreover, the frequency of Dr. Nixon's performance of the spokesman's role established that he did so within the scope of his employment (see N.T. 17-18, 32-33, 449-50, 464-68).

We conclude that the district court properly molded a verdict against the Eagles, holding them vicariously responsible for Dr. Nixon's commission of the tort of intentional infliction of emotional distress. In so doing, we reject any suggestion by the Eagles that the master, to be held liable for this tort, must either participate in it or exhibit scienter.*fn18

B.

The author of this opinion would reverse the district court judgment and grant a new trial on the claim of intentional infliction of emotional distress, discussed above in part III-A, as well as on the defamation claim covered in part V of this opinion at pp. 26-32 below, because of the conflict between the wording of special interrogatory 9(b) (see note 10 above) and the language of § 46, Restatement of Torts (Second), particularly comment d of that section (see pp. 13-14 above). Each juror had a copy of the special interrogatories before him or her during the charge and the foreman's copy was taken out to the jury deliberating room with the jury (see 869a-70a). Defendant had objected to this interrogatory (see 885a, where defense counsel stated: " . . . 9 I really don't understand, so I'll object to it. 9A and 9B . . . ").

Special interrogatory 9(b) directed that an affirmative answer be made if any one of these three situations was found by the jury:

1. The statement made by Dr. Nixon to Mr. Brown was "shocking conduct" on his part with respect to its natural and probable impact on plaintiff.

2. Such statement was "outrageous conduct" on his part with respect to its natural and probable impact on plaintiff.

3. Such statement "exceeded the bounds of decency" with respect to its natural and probable impact on plaintiff.

I believe that, at the most, part 2 of the foregoing sentence is consistent with the first paragraph of comment d of § 46 of the Restatement of Torts (Second), which is quoted at pages 13-14 above.

I do not believe that it is reasonable to expect the jury to remember the district court's correct statement of the rule of § 46 in the single sentence of the charge quoted above at note 15 when that group had before it the incorrect statement in interrogatory 9(d) both during the charge and during deliberations in the jury room.

Judges Gibbons and Fisher, observing that the charge was correct and that there was only an unspecific objection to the form of the interrogatory, do not believe a new trial is warranted.

IV. PUNITIVE DAMAGES

The Eagles advance several grounds of resistance to the jury's award of punitive damages in this case. First, the Eagles contend that, as a general rule, punitive damages may not be awarded against a tortfeasor who intentionally inflicts emotional distress upon another. Second, the Eagles argue that punitive damages, on this record, were improperly imposed upon the principal for the torts of its agent. Third, the Eagles contend that the jury was improperly instructed in the measurement of punitive damages and that the resultant amount levied was excessive in comparison to the compensatory award.

Pennsylvania courts recognize the standards governing punitive damages that are set forth in § 908 of the Restatement of Torts. Medvecz v. Choi, No. 77-1240 (3d Cir., Dec. 22, 1977). See Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355, 358 (1963); Hughes v. Babcock, 349 Pa. 475, 480-81, 37 A.2d 551, 554 (1944).

Section 908(1) provides: "'Punitive damages' are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct." "Outrageous conduct" is defined in comment b to § 908 to encompass "acts done with a bad motive or with a reckless indifference to the interests of others."*fn19 The Eagles contend that because outrageous conduct is a prerequisite of liability for the tort of intentional infliction of emotional distress, compensatory damages alone should be recoverable. We reject this contention. There is no inconsistency in awarding punitive damages by the same or similar legal standard used in determining liability for compensatory damages. Under Pennsylvania law, the purposes of the two forms of damages are quite distinct. This court, in applying Pennsylvania law, recently enunciated the purposes of punitive damages in tort actions:

"The question in medical malpractice cases, as in tort actions generally, is whether there has been sufficiently aggravated conduct contrary to the plaintiffs' interests, involving bad motive or reckless indifference, to justify the special sanction of punitive damages. That sanction serves the dual function of penalizing past conduct constituting an aggravated violation of another's interests, and of deterring such behavior in the future."

Medvecz v. Choi, supra at p. 11 of slip opinion. See also Thomas v. American Cytoscope Makers, Inc., 414 F.Supp. 255, 263 (E.D.Pa. 1976). This being so, the fact that compensatory damages are predicated upon a finding of outrageous conduct should not preclude a separate assessment of punitive damages to punish and deter the tortious conduct.

Punitive damages are commonly awarded in cases of intentional torts. There is nothing peculiar about the tort of infliction of emotional distress that should limit victims of it only to compensatory damages. The Restatement of Torts explicitly justifies the award of both punitive and compensatory damages for an analogous tort:

"[In] torts which, like malicious prosecution, require a particular anti-social state of mind, the improper motive of the tortfeasor is both a necessary element in the cause of action and a reason for awarding punitive damages."

Restatement of Torts, § 908, comment c.

Moreover, it would be anomalous to permit plaintiffs to recover punitive damages on a theory of strict products liability, see Thomas v. American Cytoscope Makers, Inc., 414 F.Supp. 255, 264 & n.13 (E.D.Pa. 1976), and yet bar punishment of those who intentionally inflict distress. Thus, where an individual sustains severe emotional distress from an intentional tortious act, punitive damages may be assessed to deter future misconduct and to punish the wrongdoer.

We recognize that not all states that recognize a tort for infliction of emotional distress similarly authorize the award of punitive damages. Compare Eckenrode v. Life of America Ins.Co., 470 F.2d 1, 5 (7th Cir. 1972) (punitive damages not sanctioned under Illinois law), with Fletcher v. Western Nat'l Life Ins.Co., 10 Cal.App.3d 376, 404, 89 Cal.Rptr. 78, 95 (1970) (punitive damages sanctioned under California law). It is our task to anticipate how the Pennsylvania Supreme Court would rule on this matter. In light of the non-compensatory purposes promoted by punitive damages in tort actions generally under Pennsylvania law, we believe Pennsylvania courts will sanction the award of punitive damages in appropriate cases of tortious infliction of emotional distress.

We do not suggest that in every case of proven liability under § 46 of the Restatement of Torts (Second) punitive damages are proper. Although the underlying conduct must be outrageous to sustain liability, the factfinder may conclude, on the record in particular cases, that exemplary damages would not be warranted. IV Restatement of Torts, § 908(2). The factfinder must consider whether the functions of punitive damages would be well served in light of all the circumstances, including the character of the act, the motive of the tortfeasor and the relation between the parties. See Chambers v. Montgomery, 411 Pa. 339, 345, 192 A.2d 355, 358 (1963).

As a general rule, the Eagles argue that punitive damages should not be assessed against a principal or master who does not participate in or approve the tortious conduct of its agent or servant. The rationale suggested is that damages designed to punish wrongdoers, rather than make victims whole, should be assessed only against parties personally responsible for tortious conduct. The Eagles claim that, on the facts of this case, they were innocent of wrongdoing in regard to Dr. Nixon's statements. In the absence of managerial participation in or approval of Dr. Nixon's statements, the Eagles claim that punitive damages in the nature of a penalty were inappropriate.

The Eagles rely on § 909 of the Restatement of Torts, adopted as § 217C of the Restatement (Second) of Agency (1958), which circumscribes the scope of an employer's or principal's liability for punitive damages.*fn20 While no Pennsylvania cases have been cited which apply this provision, we do not write on a clean slate. In Skeels v. Universal C.I.T. Credit Corp., 335 F.2d 846 (3d Cir. 1964), this court, in a diversity action, considered whether Pennsylvania adhered to the rule of § 909 of the Restatement of Torts limiting an employer's exposure to punitive damages for the torts of his employee. Judge Hastie, in reviewing the state court precedents, concluded that Pennsylvania followed the "less restrictive" rule laid down in the venerable case of Lake Shore & Michigan So.Ry. v. Rosenzweig, 113 Pa. 519, 544, 6 A. 545, 553 (1886):

"[A] 'corporation is liable for exemplary damages for the act of its servant, done within the scope of his authority, under circumstances which would give such right to the plaintiff as against the servant.'"

Skells v. Universal C.I.T. Credit Corp., supra at 852. Accord, Philadelphia Traction Co. v. Orbann, 119 Pa. 37, 12 A. 816 (1888); Gerlach v. Pittsburgh Rys., 94 Pa.Super. 121 (1928).

Judge Hastie recognized the potential harshness of this rule and concluded for the court that

"[T]he conduct of the agent who inflicts the injury complained of must be rather clearly outrageous to justify the vicarious imposition of exemplary damages upon the principal."

We are bound to follow Judge Hastie's analysis in reviewing the record in this case.

At the outset, we note that the Eagles did not request, nor have refused, an instruction delineating a narrow compass for the award of punitive damages against an employer for the intentional torts of his employee. The Eagles requested, pursuant to Rule 51, F.R.Civ.P., an instruction on punitive damages which did not mention a special standard for vicarious liability. Rather, the instruction would have required the jury to find that the act of making the statements was done with a bad motive or reckless indifference to others. The instruction did not ask the jury to determine whether the Eagles' management participated in or approved the reckless acts. See P 27 of defendant's requests for charge, App. 1152a. The district court informed the parties that it would cover the defendant's request for a charge on punitive damages in its instructions (N.T. 549). The actual instruction read to the jury accurately reflected Pennsylvania law as described above. The jury was instructed to award in its discretion punitive damages as a penalty and deterrent for "dereliction and malice" (App. 945a).*fn21

In finding that Dr. Nixon's statements were extreme and outrageous, the jury found a basis for the underlying cause of action, as well as a punitive award. In light of this court's prior enunciation of Pennsylvania law in Skeels v. Universal C.I.T. Credit Corp., supra, punitive damages could properly have been assessed against either Dr. Nixon or the Eagles.

In sum, we believe that Pennsylvania courts would adopt a standard of vicarious liability for punitive damages which would embrace the outrageous conduct of Dr. Nixon if found by the jury. The award of such damages is properly left to the jury as factfinder. The jury in this case made such an award on the basis of instructions consistent with those proposed by the defendants and in accord with governing Pennsylvania law.

One further objection to the award of punitive damages concerns their amount. The Eagles contend that the award of $60,590.96 was both excessive and improperly reflective of Chuy's contract claim. Comment e to § 908 of the Restatement of Torts provides that the trier of fact may consider all circumstances, including the motives of the wrongdoer and the relationship between the parties. In addition, Pennsylvania courts require that punitive damages not be disproportionate to the amount of compensatory damages. Hughes v. Babcock, 349 Pa. 475, 481, 37 A.2d 551, 554 (1944).

Although only $10,000. in compensatory damages were awarded, we do not order reduction of the punitive award. The jury had before it evidence concerning the Eagles' management's disdain for Chuy's contractual claims and the team president's remarks about Chuy.*fn22 The contract dispute and the tort claim, while distinct causes of action in the context of liability, are interwoven as regards the relations between the parties at the time the harmful statements were made. Thus, we believe that the jury could have considered the conduct of Eagles' management in resisting Chuy's efforts to receive three years' pay in calculating the award.*fn23 In this light, we do not believe that the amount of the award was either excessive or improperly calculated on the basis of Chuy's contract claim.*fn24

V. DEFAMATION

Plaintiff has appealed the district court's denial of his motion for a new trial on the defamation count of the complaint. On the basis of the jury's answers to pertinent interrogatories, the district court molded a verdict against plaintiff, denying him recovery for injury to his reputation caused by the allegedly defamatory content of Dr. Nixon's statements quoted in Hugh Brown's April 9, 1970, column. The jury found, in answer to interrogatory 7, that the plaintiff proved by clear and convincing evidence that Dr. Nixon intentionally told Mr. Brown that Don Chuy was suffering from polycythemia vera (App. 968a). The jury was also asked to determine whether all of Dr. Nixon's statements quoted in the newspaper article, when taken together, tended to injure Mr. Chuy's reputation (App. 938a). Finally, the jury was asked whether Mr. Brown understood that publication of Dr. Nixon's statements would tend to injure Mr. Chuy's reputation.*fn25 The jury answered affirmatively that dissemination of Dr. Nixon's remarks tended to injure Mr. Chuy's reputation. The jury answered negatively that Mr. Brown personally understood the remarks as tending to cause such injury. The crux of this part of the appeal is whether, based on these answers, the district court erred in denying Chuy recovery for defamation.

In Pennsylvania, defamation claims are governed by long established common law standards, as well as burden of proof rules prescribed by statute, 12 Pa.Stat.Ann. § 1584(a) (Purdon Supp. 1977). Plaintiffs must first prove the defamatory character of particular communications. The Pennsylvania Supreme Court has adopted the definition of a defamatory communication as enunciated in the First Restatement of Torts:

"A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him."

Corabi v. Curitis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971), quoting Restatement of Torts § 559 (1938).*fn26 In the first instance, the trial court must determine whether a particular communication is capable of a defamatory meaning. The jury's function is to find whether the recipient understood the communication as defamatory. Corabi v. Curtis Publishing Co., supra; Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. 314, 318, 182 A.2d 751, 753 (1962).

We must first inquire whether the imputation to another of a grave and possibly fatal disease may be capable of defamatory meaning in certain contexts. We reject plaintiff's contention that polycythemia vera is a "loathesome disease" which should be treated as defamatory per se. The special common law category of "loathesome diseases" has historically been limited to sexually communicable venereal diseases and leprosy. Restatement of Torts (Second) § 572, comments b, c (1977). Such diseases were thought socially repugnant in a manner not applicable to non-contagious, albeit possibly fatal, diseases such as smallpox, leukemia and polycythemia vera.

The question whether in any contexts the imputation of a physical disease with possibly fatal consequences may be defamatory is a close one. Taken without context, A's statement that B has cancer might not seem to implicate B's reputation or standing in the community. Many people suffer from fateful diseases such as cancer or polycythemia vera, and the public's reaction is more likely to be that of sympathy than scorn. Nor in general does the presence of such disease reflect upon one's personal or business character. Defamatory statements are those which discredit or blacken a person's name and standing. As a general matter in this enlightened day, the contraction of a crippling or life-denying illness does not blacken one's reputation or cause others to spurn the afflicted.

The imputation of incurable disease might be thought embarrassing. The Pennsylvania Supreme Court has had occasion to distinguish between embarrassing and defamatory statements. The court particularized the harm associated with defamation as that "which has grievously fractured his standing in the community of respectable society." Scott-Taylor, Inc. v. Stokes, 425 Pa. 426, 428, 229 A.2d 733, 734 (1967). We have serious doubts that the imputation of polycythemia vera or any other blood disease can grievously fracture one's standing in society.

We recognize that however innocuous an attribution of illness may be in general, in particular circumstances the imputation of a fatal disease may be susceptible to defamatory interpretation. Thus, we have examined the newspaper context of Dr. Nixon's statements and the circumstances of Chuy's illness.

Hugh Brown's column in the Philadelphia Bulletin on April 9, 1970, reported that a Dr. Harrell had examined Don Chuy and diagnosed a pulmonary embolism and recommended that Chuy no longer participate in contact sports such as pro football and wrestling. This report of Dr. Harrell's examination was uncontroverted in the record. The truth, which plaintiff did not deny, was that his predisposition to embolisms dictated his retirement from football. In the same article, Dr. Nixon was quoted as confirming Dr. Harrell's diagnosis and recommendation. In addition, the article quotes and paraphrases an assessment by Dr. Nixon that Chuy had polycythemia vera, which was a threat to the formation of emboli. This single statement was false. The issue is whether the untrue remark, set against the backdrop of the accurate information in the article, was capable of defamatory meaning. See Corabi v. Curtis Publishing Co., supra, 411 Pa. at 444-46, 273 A.2d at 906.

Reading the article in its entirety, a reader might have understood that polycythemia vera was the direct cause of Mr. Chuy's forced premature retirement from pro football. Where the imputation of a physical disease is explicitly related in the allegedly defamatory communication to the professional demise of an individual, his professional or economic stature has been badly tarnished. Persons who associated with Donald Chuy for professional reasons by virtue of his careers in pro football and wrestling might have ceased associating with him in his professional capacity. Cf. Cosgrove Studio & Camera Shop, Inc. v. Pane, supra. It is in this context that we conclude that Dr. Nixon's imputation to Don Chuy of a potentially fatal illness might have been understood as conveying a defamatory meaning.*fn27

The jury must be charged with determining whether plaintiff proved that the "recipient" of the communication understood it as defamatory. 12 Pa.Stat.Ann. § 1584a (1)(d) (Purdon's Supp. 1977). The district court charged the jury to consider Hugh Brown as the recipient and to consider whether he personally understood that publication of Dr. Nixon's statements would cause Don Chuy harm (935a, 938a-39a). The interrogatories split into 8(a) and 8(b), distinguished between the jury's understanding and Mr. Brown's understanding of the meaning of Dr. Nixon's statements.

We believe that the district court erred in treating the sportswriter as the relevant "recipient" within the meaning of Pennsylvania law. Defamatory words spoken to a newspaper reporter for attribution in a column should be deemed communicated not alone to the reporter but also to the general readership of the newspaper. The jury in this case should have been asked whether the average reader of the Philadelphia Bulletin understood Dr. Nixon's statements as harming Chuy's reputation.*fn28 See Sellers v. Time, Inc., 423 F.2d 887, 889-90 (3d Cir. 1970).

Clearly Mr. Brown's personal comprehension of the effect of publication of Dr. Nixon's statements need not have corresponded with the average reader's actual understanding. The contrary answers to interrogatories 8(a) and 8(b) indicate that the jury understood the defamatory potential of Dr. Nixon's statements differently from Mr. Brown. The jury's finding that the statements tended to harm Mr. Chuy's reputation may well have implicitly represented the jurors' own understanding as average readers or their perception of how other average readers would have understood the statements. In sum, we conclude that the district court erred in not submitting to the jury a question as to whether the average reader understood Dr. Nixon's statements taken in the context of the article as tending to injure Mr. Chuy's professional reputation. This error necessitates a remand on plaintiff's defamation claim.

In arguing for a remand, the plaintiff also disputed the district court's conclusion that Don Chuy was a "public figure" and that their burden of proof need not have been to produce clear and convincing evidence. We concur in the district court's conclusion that Don Chuy was a "public figure" who must meet a constitutionally mandated higher standard of proof than other defamed plaintiffs.

Beginning with New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the United States Supreme Court has delineated federal constitutional rules protective of First Amendment interests and which limit in various respects state law causes of action for defamation. One constitutional parameter requires characterization of the plaintiff as a public official, public figure, or private person. This characterization is a matter of federal constitutional law and is, therefore, properly reserved to determination by the court and should not be submitted to the jury for a factual finding as an element of plaintiff's cause of action or defendant's assertion of privilege.

In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court described two types of public figures. Some individuals of "pervasive fame or notoriety" are public figures in all contexts. Id. at 351. Alternatively, "an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues." Id. Professional athletes, at least as regards their playing careers, assume a position of public prominence. Their contractual disputes, as well as their athletic accomplishments, command the attention of sports fans. Don Chuy, in particular, was a starting player for the hometown Eagles. He had gained special prominence for being involved in a major and well-publicized trade in which his contract was assigned from his former club to the Eagles. His injury was sustained on the field and led to discovery of a physical condition which forced his retirement. With all this as background, Don Chuy's dispute with the Eagles in the 1970 off-season concerning payment of two years' salary was no mere private contractual matter. Don Chuy had been thrust into public prominence long before Dr. Nixon's statements appeared in the April 9, 1970, Bulletin. The article, which discussed his physical condition, his contractual dispute, and his retirement, clearly concerned a public figure.*fn29

On remand, therefore, Don Chy should be treated as a public figure who must face correspondingly tougher burdens of proof and narrower standards of liability than a private figure would in a defamation action.*fn30

VI. CONCLUSION

In conclusion, we affirm the district court's denial of the Eagles' post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. We reverse the district court's denial of Chuy's motion for a new trial and remand for a new trial limited to the defamation claim of Chuy's complaint. Each party shall bear his or its own costs.


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