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PRESENT: All the Justices
PTS CORPORATION, D/B/A
ALLIANCE BAIL BONDS, ET AL.,
                                                                     OPINION BY
v.    Record No.  011396                                             JUSTICE DONALD W. LEMONS
                                                                     April  19,  2002
LARRY BUCKMAN
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
In this appeal of an action brought by Larry A. Buckman
(“Buckman”) against his former employer, PTS Corporation, d/b/a
Alliance Bail Bonds  (“Alliance”) and Patsy D. Tauro  (“Tauro”)
(collectively  “defendants”) alleging improper use of his name
for advertising or trade purposes, we consider whether the trial
court erred in overruling a motion in limine to exclude evidence
of an investigation of Buckman.    Also, we consider whether the
trial court erred in overruling Tauro’s demurrer concerning his
personal liability under Code  §  8.01-40(A).
I.    Facts and Proceedings Below
Buckman worked as a bail bondsman for Alliance for
approximately seven years before leaving in late March  1998 to
work in used car sales.    Despite his departure, Alliance did not
remove his name from its advertisement in the August  1998  - July
1999 edition of the Bell Atlantic Yellow Pages for South Hampton
Roads, Virginia.
On March  25,  1999, Buckman filed a bill of complaint
against Alliance, Tauro, and Joseph Scott  (“Scott”), seeking




injunctive relief, compensatory damages, and punitive damages.
Tauro and Scott were both officers and owners of Alliance.    The
complaint alleged that  “[t]he actions of the Defendants
constitute[d] a blatant violation of Code of Virginia  §  8.01-40,
which authorizes Plaintiff to pursue a suit to prevent and
restrain the unauthorized use of his name.”    Buckman claimed
that Alliance’s continued use of his name in its telephone book
advertisement after his employment with Alliance ceased
constituted a violation of the statute.    Buckman also alleged
that the named defendants  “told and/or implied to prospective
customers who called by telephone that Larry Buckman did still,
in fact, work for Alliance, when the Defendants knew full well
that he did not.”
Tauro and Scott filed a demurrer to the complaint, claiming
that Code  §  8.01-40(A) allowed for suit  “against the person,
firm, or corporation so using such person’s name” and that
Buckman did not allege that either Scott or Tauro  “used” his
name, but only that Alliance  “used” his name.    Further, Tauro
and Scott maintained that Buckman failed to allege facts to show
that either Tauro or Scott acted  “in any capacity other than as
employees, owners, and officers of Alliance Bail Bonds.”    The
trial court overruled the demurrer.
On January  31,  2000, the trial court entered an order by
consent of the parties transferring the action from the equity
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side to the law side of the court.    In the order, the trial
court enjoined the defendants from committing any of the actions
“complained of in the  [b]ill of  [c]omplaint  .  .  .”
On October  27,  2000, the defendants filed a motion in
limine for entry of an order excluding the testimony of
Detective Gene Eller  (“Detective Eller”) of the Virginia Beach
Police Department.    In the motion, they represented that
approximately one year after Buckman ceased working for
Alliance, Tauro initiated a complaint with the State Corporation
Commission Bureau of Insurance  (“Bureau of Insurance”) after he
found a completed power of attorney that Buckman  “checked out”
but had never returned, and which had been reported as lost.1
Upon the advice of the Bureau of Insurance, Tauro reported the
matter to the Virginia Beach Police Department, and Detective
Eller subsequently conducted an investigation.    Ultimately, no
criminal charges were initiated against Buckman as a result of
the investigation.    In the motion, the defendants argued that
the testimony of Detective Eller  “ha[d] absolutely no bearing on
the underlying lawsuit,” and was irrelevant to an alleged
violation of Code  §  8.01-40(A).
1 Powers of attorney authorize bail bondsmen to sign bail
bonds on behalf of the surety company.
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Immediately prior to the commencement of the jury trial on
November  6,  2000,2  the trial court heard arguments on the
defendants’ motion in limine.    In response to the motion in
limine, Buckman argued that Code  §  8.01-40(A) allowed punitive
damages, and that evidence of the investigation was relevant to
the degree of punishment.    Buckman claimed that Alliance and
Tauro planned to argue that they acted in good faith toward
Buckman, and that he wanted to demonstrate that both the
unauthorized use of his name and the investigation were part of
“their desperate effort to keep him out of the business” and
demonstrated their lack of good faith in dealing with him.    The
trial court decided to  “allow Detective Eller to testify for
whatever relevance his testimony might have.”    Buckman’s counsel
elicited testimony about the investigation from Tauro, Scott,
Detective Eller, and Buckman himself.
To support his claim for compensatory damages, Buckman
presented the testimony of various individuals who testified
that when they telephoned Alliance asking for Buckman, they were
led to believe that Buckman still worked for Alliance.    Dean
Dayton  (“Dayton”) testified that he telephoned Alliance in March
1999 and when he asked for Buckman, the person who answered the
telephone said that Buckman  “wasn’t on duty.”    Another bondsman
2 The claim against Scott was nonsuited on the day of trial
and an order was entered on November  20,  2000.
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from Alliance wrote the  $7000 bond for Dayton.    Similarly, Garth
Cooper testified that when he called Alliance looking for
Buckman in October  1998, he was told that Buckman  “wasn’t in the
office that day.”    A third witness, Kevin Hall, testified that
when he called Alliance looking for Buckman he was told that
Buckman  “[was] busy.”    Buckman testified that he called Alliance
himself, using another name, to see what kind of response he
would get after asking to speak to Larry Buckman.    The woman who
answered the telephone told him that she would page Buckman and
that  “[a]s soon as we hang up, the page will go out and he’ll
call you back.”    Buckman asserted that this conduct by Alliance,
which led at least three callers to believe that Buckman still
worked for the company, constituted a violation of Code  §  8.01-
40(A).
The jury returned a verdict in favor of Buckman for  $490 in
compensatory damages and  $175,000 in punitive damages.    Alliance
and Tauro moved to set aside the verdict, arguing that the
compensatory damage award was without evidence to support it and
that the award of punitive damages shocked the conscience.    The
trial court took the motion under advisement.
The parties submitted written memoranda in support of their
positions on the motion to set aside the verdict and for a new
trial.    Alliance and Tauro argued that the compensatory damage
award was contrary to the evidence and that the punitive damage
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award was excessive under state law and unconstitutional under
federal law.    Alliance and Tauro also alleged that the evidence
of the investigation  “was what drove the jury’s award” and
reiterated their argument that the investigation was irrelevant
to the violation of Code  §  8.01-40(A).    In his memorandum in
opposition, Buckman argued that the evidence supported both the
compensatory and punitive damage awards.    Buckman further argued
that the trial court properly overruled the defendants’ pretrial
motion in limine regarding the relevance of evidence of the
investigation.
By order entered April  2,  2001, the trial court denied the
defendants’ motion to set aside the verdict and for a new trial,
and entered judgment against the defendants, jointly and
severally, in the amount of  $490 in compensatory damages and
$175,000 in punitive damages, with interest from the date of
trial.    Alliance and Tauro appeal the adverse ruling of the
trial court.
II.    Analysis
On appeal, Alliance and Tauro argue that the trial court
erred in overruling their motion to set aside the verdict and
for a new trial.    They further argue that the trial court erred
in overruling their motion in limine to exclude the testimony of
Detective Eller and evidence of the investigation of Buckman.
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Finally, Alliance and Tauro maintain that the trial court erred
in overruling Tauro’s demurrer to the bill of complaint.
Buckman argues that the record supports both the
compensatory and punitive damage awards and that the trial court
properly allowed the testimony of Detective Eller and evidence
concerning the investigation.    Buckman further argues that the
verdict was properly entered against Tauro personally.
Code section  8.01-40(A) provides:
Any person whose name, portrait, or
picture is used without having first
obtained the written consent of such
person, or if dead, of the surviving
consort and if none, of the next of kin,
or if a minor, the written consent of his
or her parent or guardian, for advertising
purposes or for the purposes of trade,
such persons may maintain a suit in equity
against the person, firm, or corporation
so using such person's name, portrait, or
picture to prevent and restrain the use
thereof; and may also sue and recover
damages for any injuries sustained by
reason of such use.    And if the defendant
shall have knowingly used such person's
name, portrait or picture in such manner
as is forbidden or declared to be unlawful
by this chapter, the jury, in its
discretion, may award exemplary damages.
In Town & Country Prop. Inc. v. Riggins, we held that it was
unnecessary to prove  “wilful, wanton and/or malicious conduct”
in order to support an award of punitive damages under Code
§  8.01-40(A).                                                     249 Va.  387,  399,  457 S.E.2d  356,  365  (1995).
All that is necessary under the statute to support an award of
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punitive damages is proof that the defendant  “knowingly used”
plaintiff’s name, portrait, or picture without consent for
advertising purposes or for the purposes of trade.    Id.
While holding that the statute does not require proof of
“wilful, wanton and/or malicious conduct,” we did not state that
such evidence was inadmissible.    Nothing in the statutory
language of Code  §  8.01-40(A) suggests a restriction upon proof
of damages.    To the contrary, the statute expands the
circumstances in which punitive damages can be awarded.    We
believe that it would be an unreasonable interpretation of the
intent of the General Assembly to expand the scope of punitive
damages while limiting the proof of the quantum of damages
awarded.    See Catron v. State Farm Mutual Auto. Ins. Co.,  255
Va.  31,  38,  496 S.E.2d  436,  439  (1998)  (recognizing that when
statutory language is clear, the plain meaning and intent of the
enactment will be given to it); see also Vaughn, Inc. v. Beck,
262 Va.  673,  677,  554 S.E.2d  88,  90  (2001)  (explaining that the
Court determines the intent of the General Assembly from the
words contained in the statute, unless a literal construction of
the statute would yield an absurd result).    Accordingly, we hold
that proof of  “wilful, wanton and/or malicious conduct” is not
necessary to support an award of punitive damages under Code
§  8.01-40(A), but such proof is admissible in support of a
determination of the quantum of punitive damages awarded.
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However, it is axiomatic in the law that proof of damages
must be related to the wrong suffered.    The proof required for
punitive damages is subject to the same causal connection.
Here, Buckman’s cause of action was based upon a statutory
provision prohibiting the use of a name, portrait, or picture,
without permission, for advertising purposes or for trade
purposes.    The statutory cause of action is premised upon the
concept that a person holds a property interest in his or her
name and likeness. Lavery v. Automation Mgmt. Consultants, Inc.,
234 Va.  145,  154,  360 S.E.2d  336,  341-42  (1987).    Such a
property interest has value.    A conversion occurs when another
exercises dominion and control over such intangible personal
property and uses it without the owner’s consent.    Town &
Country,  249 Va. at  397,  457 S.E.2d at  364.
The trial court denied the defendants’ pretrial motion in
limine seeking to exclude testimony concerning the investigation
of Buckman by the Bureau of Insurance or the Virginia Beach
Police Department and the role played by Alliance or Tauro in
causing such an investigation.    Alliance and Tauro argue that
such evidence was  “wholly collateral and irrelevant to any
issue” in the case.    Buckman maintains that such evidence is
proof of  “wilful, wanton and/or malicious conduct” that is
relevant to the quantum of punitive damages.    Alliance and Tauro
reply that even if such evidence is relevant, it should have
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been excluded because its probative value is far outweighed by
its prejudicial effect.
As we stated in Spurlin v. Richardson,  203 Va.  984,  990,
128 S.E.2d  273,  278  (1962):
Evidence of collateral facts, from which
no fair inferences can be drawn tending to
throw light upon the particular fact under
investigation, is properly excluded for
the reason that such evidence tends to
draw the minds of the jury away from the
point in issue, to excite prejudice and
mislead them.
The determination that proffered evidence is collateral is, in
essence, a determination of relevance.    See Seilheimer v.
Melville,  224 Va.  323,  327,  295 S.E.2d  896,  898  (1982)
(recognizing that the  “collateral facts” rule is purely a
question of relevancy); see also Charles H. Friend, The Law of
Evidence in Virginia  §  11-4 at  392  (5th ed.  1999).    The evidence
of the investigation in May  1999 was irrelevant to the issue of
the use of Buckman’s name in the Yellow Pages in August  1998 and
the four misleadingly handled telephone calls, all of which
occurred before April  1999.    The defendants’ complaint to the
Bureau of Insurance and the Virginia Beach Police Department was
prompted by the discovery of a power of attorney form in
Buckman’s former desk at Alliance, a matter unrelated to the use
of Buckman’s name in the Yellow Pages or during telephone calls.
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As such, it could not have been relevant to support an award of
compensatory damages.
Additionally, the evidence concerning the investigation was
irrelevant to the award of punitive damages for  “knowing” use of
Buckman’s name.    The premise underlying the use of someone’s
name, portrait, or picture in advertising or for trade purposes
is that it has value.    Surely, causing an investigation of
Buckman for allegations that could have resulted in criminal
charges and conviction was inconsistent with usurpation of such
an asset.    Simply stated, the evidence of use of his name and
the evidence concerning the investigation were at cross-
purposes.    As such, the evidence admitted in support of the
award of punitive damages was irrelevant to the underlying
statutory cause of action.    Perhaps such evidence could support
a different cause of action, but it was inadmissible for any
purpose in this action pursuant to Code  §  8.01-40(A).
Therefore, we hold that the trial court erred in denying the
defendants’ motion in limine.
At trial Buckman’s counsel asked him,  “what are you asking
this jury to do?”    Buckman replied:
It’s real hard to put an economic figure
on what I feel that ya’ll should award me.
It’s real tough.    But I think that the law
allows for punitive damages.    I think that
when somebody puts you through a lot of
[undue] stress and aggravation and
sleepless nights because you’re being
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investigated for something you didn’t do,
I feel that you’ve got to hit them in the
pocketbook.
The impact of the improperly admitted evidence of the
investigation and Buckman’s direct request for damages
predicated upon it undoubtedly influenced the jury’s award of
both compensatory and punitive damages.
Because a new trial may produce a different verdict, it is
unnecessary to address any of the remaining assignments of error
except one that will, of necessity, arise again.    We find no
error in the trial court’s overruling of Tauro’s demurrer.
Tauro maintains that only the corporate defendant may be liable
on this proof.    However, the express terms of the statute impose
liability upon  “the person, firm, or corporation so using such
person’s name.”    We have previously held corporate officers
liable for their tortious conduct.    See Miller v. Quarles,  242
Va.  343,  347-48,  410 S.E.2d  639,  642  (1991); see also Sit-Set,
A.G. v. Universal Jet Exch., Inc.,  747 F.2d  921,  929  (4th Cir.
1984).    It is inconsequential that the cause of action is based
on statutory rather than common law.    The tort is one of
conversion, recognized at common law.    Town & County,  249 Va. at
397,  457 S.E.2d at  364.
Additionally, we have previously noted the similarity
between Code  §  8.01-40(A) and  §§  50 and  51 of the New York Civil
Rights Act. Town & Country,  249 Va. at  394,  457 S.E.2d at  362
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(citing N.Y. Civ. Rights Law  §§  50-51  (McKinney  1992)).
Accordingly, we find the holding in Anderson v. Strong Memorial
Hospital particularly persuasive.                                      531 N.Y.S.2d  735  (N.Y. Sup.
Ct.  1988), aff’d,  542 N.Y.S.2d  96  (N.Y. App. Div.  1989).
In Anderson, the plaintiff brought an action against
several doctors, a newspaper, and newspaper employees for
invasion of privacy and breach of the doctor-patient privilege.
While the patient was in an examination room at the doctors’
office, a newspaper photographer took a photograph of him and
assured him that he would not be recognizable in the photograph.
Id. at  737.    The photograph was published in a local newspaper
two days later, and the plaintiff claimed he was identifiable
and that the publication caused him significant stress and
turmoil.    Id.    The court held that a plaintiff could only
maintain an action for invasion of privacy against the doctors
under  §  51 of the Civil Rights Law if he demonstrated that the
doctors  “used” the photograph.    Id. at  738.    The court defined
the term  “used” in the statute and stated that although the
plaintiff alleged that the doctors encouraged him to have his
photograph taken, there were no allegations that they  “took the
photograph, sold it, published it, or otherwise exercised any
control over it, to give rise to the conclusion that they  ‘used’
the photograph.”    Id.
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Code  §  8.01-40(A) similarly requires that a  “person, firm,
or corporation” must use the name, portrait, or picture of the
plaintiff in order for the plaintiff to recover.    Under our
statute, any one or more of the three named entities can be
liable for  “so using” the plaintiff’s name, portrait, or
picture.    The demurrer as to Tauro’s individual liability was
decided prior to the trial of the matter.    Of course the
evidence at trial must support individual liability and
sufficiently demonstrate that the individual defendant  “used”
the plaintiff’s name.    Because Tauro did not object to jury
instructions permitting the imposition of individual liability,
we will not, in this appeal, review the sufficiency of the
evidence to support such an instruction.
Accordingly, we will reverse the judgment of the circuit
court and remand for a new trial.
Reversed and remanded.
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