Flanigan v. Prudential Federal Savings & Loan Assoc.

No. 85-380
IN THE SUPREME COURT OF THE STATE OF MONTANA.

1986

MILDRED FLANIGAN,

Plaintiff and Respondent,

PRUDENTIAL FEDERAL SAVINGS & LOAN
ASSOC. , a federally chartered banking
corporation, and FRED OGOLIN,
Defendants and Appellants.

APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver BOW,
The Honorable Mark Sullivan, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
David J. Wing argued, Butte, Montana

For Respondents:
Poore, Roth & Robinson; Donald C. Robinson argued,
Butte, Montana

Submitted: April 24, 1986
Decided: June 5 , 1986

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Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Plaintiff brought this action in the First Judicial
District Court to recover damages based upon wrongful
termination from employment. The jury returned a verdict in
favor of plaintiff, awarding her $94,170 in economic damages,
$100,000 for emotional distress and exemplary damages in the
amount of $1,300,000. Defendants appeal. We affirm.
Mildred Flanigan (respondent) was hired as a teller on
January 28, 1952, by Prudential Federal Savings and Loan
Association. She worked in various capacities until April
15, 1-980, at which time Fred Ogolin, Vice President and
Manager of Prudential Federal Savings and Loan, Butte Branch,
fired her. Hereafter, the two defendants will be referred to
jointly as the appellants unless it is necessary to
distinguish them by specific reference.
The issues presented for review involve substantial
credible evidence questions. We therefore will detail the
facts and, as we must, in a light favorable to respondent.
First National Bank in Libby v. Twombly (Mont. 1984), 689
P.2d 1226, 1230, 41 St.Rep. 1948, 1952; Jacques v. Montana
National Guard (Mont. 1982), 199 Mont. 493, 503, 649 ~ . 2 d
1319, 1325.
Following commencement of her employment, respondent
worked as a teller for approximately 14 years, performing in
a satisfactory fashion. In 1966 she became branch office
bookkeeper. That position was eliminated because of a change
in technology and in 1973, the respondent moved into the
mortgage loan department where she became branch general
clerk. She maintained this position until 1976, when she
became assistant loan counselor. Respondent performed
satisfactorily in all positions.
 On December 7, 1979, prior to respondent's termination,
the president of Prudential prepared an interoffice
memorandum entitled "Personnel Information and Policy
Change". This memorandum was distributed to all employees
formally advising them of economic turndowns and the
resulting need of Prudential to reduce its work force. The
memorandum was discussed at the staff meeting in Butte,
Montana, on December 13, 1979. Respondent was present. In
the latter part of January, 1980, respondent was advised by
Fred Ogolin that her position as assistant loan counselor was
to be terminated as of June 1, 1980. After discussion,
Ogolin advised respondent of a teller training program in
Salt Lake City, Utah, and asked her if she desired to broaden
her job slcills. Respondent accepted the offer and on March
2, 1980, she attended the week-long program. On March 18,
1980, after her return to Butte, respondent began working as
a teller. Less than one month later, respondent was
terminated without notice and without hearing. She was given
six months pay as a severance benefit and paid her
accumulated profit sharing benefits of $48,428.02. After
respondent was terminated, she was offered, by letter dated
June 9, 1981, a part-time position as teller. After
consultation with counsel, the offer was rejected.
Within two weeks following her termination, respondent
filed an age discrimination complaint with the Human Rights
Commission. She received a "right to sue" letter and filed
this complaint on April 13, 1983.
After consolidating several of appellants' issues, we
find the following questions govern the outcome of this
appeal :
 1. Was there substantial credible evidence to support
submission of respondent's case to the jury based upon breach
of the implied covenant of good faith and fair dealing?
2. Did the District Court err in its treatment of the
negligence issue? As sub-issues we determine whether it was
error for the trial court to allow amendment of the
pleadings; whether the negligence count was barred by the
statute of limitations; whether comparative negligence was
applicable; and whether workers' compensation was the
exclusive remedy?
3. Did the District Court err in allowing opinion
testimony from expert witnesses about the covena.nt of good
faith and fair dealing?
4. Was it error to refuse admission of defendant's
Exhibit U.U.?
5. Did the District Court err in failing to reduce
damages by $ 2 6 , 2 9 0 . 5 3 , the amount the plaintiff would have
received had she not refused to accept the position as a
part-time teller following her termination?
6. Was there substantial credible evidence to submit
punitive damages to the jury? We include within this issue
the question of whether punitive damages were excessive as a
matter of law.
ISSUE ONE

Was there substantial credible evidence to support
submission of respondent's case to the jury based upon breach
of the implied covenant of good faith and fair dealing?
The principal argument advanced by appell-ants is that
Prudential was experiencing severe economic conditions and
terminated the respondent in a legitimate reduction-in-force
move designed to curb costs. Appellants argue that a Montana
jury should not be a silent partner in every decision made to
terminate employees. Reliance is placed upon the language of
Professor Gary Murg and Clifford Scharman, in an article
titled "Employment at Will: Do the Exceptions Overwhelm the
Rule?" 23 Boston College L.R. 329, 372 (1982), wherein it
was said:
... A jury should not be entitled to second guess
an employer's policy or practices to determine that
they are insufficient justifications for a
discharge. Such an approach would leave virtually
all personnel practices open to communal comment.
A personnel practice that is justifiable to one
jury may be found pernicious to another. The
likely result would then be to subject employers to
the threat of suit in every instance of a discharge
as the employee attempts to find a jury sympathetic
to his cause. Thus, the only issue that should be
posed to the jury is whether the personnel practice
was applied equally to all employees. It is
submitted that if an employer's promise of
continued employment is to be given contractual
force courts must limit the discretion of the jury
in determining what constitutes good cause.
Respondent disputes that she was terminated as part of a
reduction-in-force program. She points to the testimony of
Ogolin, who fired her. Oqolin testified at trial that, but
for the respondent's alleged poor performance as a teller,
she would have remained employed by Prudential. In earlier
testimony Ogolin had said that under no circumstances would
the respondent have remained with the company.
Respondent argues that the dual and contradictory
reasons for termination advanced at trial by the appellants
reveal an arbitrary, capricious and bad faith firing.
Respondent notes the following Ogolin testimony which is
supportive of a reduction in force:
Q. (By Mr. Robinson) ... Would Mildred have
been let go if in the three weeks she worked as a
teller she had appeared to be performing as well as
any other average teller in your operation?
A. (By Mr. Ogolin) Yes. I had already made the
decision that Mildred's job was going to he, or
position was going to be eliminated ....
 Q. So, how well she performed in that three-week
period had nothing - - -
to do with your decision to
terminate - - April - - - - - true?
her on 15, 1980, is that
A. That's correct. That decision was made before
she performed as a teller trainee in the Butte
office.

Q * - you wouldn't have considered
So, - - stay-
her for
ing no matter - - - performed
how she had - - teller,
as a
oodor -
L- bad, --- true?
is that
A. That's right, yes.
Q. That would be true even if she had performed as
well as Connie Selon who had worked as a teller for
4 years?
A. Yes, that's true.
(Tr. pp. 437-438) (Emphasis supplied-)

Several days later Ogolin, testifying in his own
defense, gave this contradictory testimony:
Q. You put in a 1-ot of testimony today about the
fact that she didn't perform well according to your
opinion but it's true, is it not, - - testified
as you
last week that it wouldn't have made any difference
--
how she had performed, - still would - -
she have lost
- job, isn't that true?
her

A. -
Yes, I testified to that. . ..

Q. Are you changing your testimony from last
Wednesday?
A. I'm saying that the facts were not that.
Q. My question again one last time, - - -
if she had
performed - - - as another teller, could --
as well she have
kept her job?
A. Yes.
-
Q. Oh. So, you have changed your testimony from
last Wednesday, - -
is that correct?
Yes.
A. -
(Tr. pp. 1058-1059) (Emphasis supplied-)

Additionally, respondent argues that the employer
violated its own written policies regarding job security and
job rights by terminating the respondent without notice and
without hearing. Further, respondent maintains that she was
entitled to be recalled to fill vacant positions but that she
was not recalled except insofar as she was offered a
part-time teller position.
Respondent offered evidence that her discharge was
motivated by vindictiveness on the part of Ogolin. Because
of seniority, respondent had a superior right to vacation
time, even before Ogolin. She testified that when she asked
the reason for her termination, Ogolin stated that she was
"not making it as a teller" and that she was "vindictive"
because she had used her seniority to select her four weeks
of vacation during the month of August.
The reason for discharge was disputed by Prudential.
Several months later, Prudential's president informed
respondent, for the first time, that she was discharged as
part of a company wide reduction in force. The president
stated that "seniority or past performance was not
considered" in the decision to discharge.
Implicit throughout the respondent's case is the
allegation that she was terminated because of her age and
because of a desire on the part of the employer to cut costs
associated with respondent's pension. Younger and less
experienced employees, who had lower composite performance
evaluations and who occupied positions respondent previously
held, remained working after respondent's firing. Ogolin
admitted that any errors respondent made as a teller were not
sufficient to warrant discharge. Ogolin further admitted
that respondent was never warned, reprimanded or counseled
about her performance as a teller, all prerequisites to
termination according to Prudential's own policies.
Prudential supervisors admitted that 60 days to six months
were normally required before one could become proficient as
a teller. The decision to discharge respondent, however, was
made after respondent worked less than three weeks in the
teller position.
A long-term employee has an expectation of continued
employment provided that the employee's work performance is
satisfactory. Dare v. Montana Petroleum Marketing Co. (~ont.

course, this does not foreclose an employer from engaging in
legitimate reductions in force necessary to maintain the
economic vitality of the company. However, there is evidence
in this record, from the lips of Ogolin himself, that
respondent was fired for poor work performance. The jury
could have relied upon this latter testimony and therefore
concluded there was no reduction in force.
The standard for ascertaining whether factual issues
exist in a wrongful discharge case were articulated by the
majority opinion in Dare, supra. We there said:
The record discloses remaining genuine issues of
material fact regarding Dare's wrongful discharge
claim. The parties relate widely divergent
versions of Dare's work performance and reasons for
her termination. It therefore remains for the
trier of fact to resolve these issues, includinq
the reason for Dare's termination and whether - she
was fired for cause. (Emphasis supplied.)

The cause referred to in Dare is different from the
"good cause" applicable in determining the propriety of an
employee's termination under a contract for a specified term.
In Pugh v. See's Candies, Inc. (Cal.~pp. 1981), 116
Cal.App.3d 311, 171 Cal. Rptr. 917, the California Appeals
Court for the First District, Division 1, noted the
distinction as follows:
By what standard that burden is to be measured will
depend, in part, upon what conclusions the jury
 draws as to the nature of the contract between the
parties. The terms "just cause" and "good cause,"
"as used in a variety of contexts ... have been
found to be difficult to define with precision and
to be largely relative in their connotation,
depending upon the particular circumstances of each
case." - - Cardinal Co. v. Ritchie (1963) 218
(R. J.
Cal.App.2d 124, 144,3 2 Cal.Rptr. 545.)
Essentially, they connote "a fair and honest cause
or reason, regulated by good faith on the part of
the party exercising the power." (Id., at p. 145,
32 Cal.Rptr. 545.) Care must be taken, however,
not to interfere with the legitimate exercise of
managerial discretion. "Good cause" in this
context is quite different from the standard
applicable in determining the propriety of an
employee's termination under a contract for a
specified term. (Footnote omitted.)

In Dare, supra, the heightened expectations resulting
from long-term employment were the primary basis for
reversing summary judgment in favor of the employer. Justice
Weber, writing for the majority, said:
The presence of such facts [long-term employment]
indicates that the term of employment has gone
beyond the indefinite period contemplated in the at
will employment statute, section 39-2-503, MCA, and
is founded upon some more secure and objective
basis. In such cases, the implied covenant
protects the investment of the employee who in good
faith accepts and maintains employment reasonably
believing their job is secure so long as they
perform their duties satisfactorily.

Closely allied with Justice Weberls reasoning in Dare is
the California case of Cleary v. American Airlines, Inc.

wherein the Second District Court of Appeal, Division 1,
stated:
Two factors are of paramount importance in reaching
our result that plaintiff has pleaded a viable
cause of action. One is the longevity of service
by plaintiff - 18 years of apparently satisfactory
performance. Termination of employment without
legal cause after such a period of time offends the
implied-in-law covenant of good faith and fair
dealing contained in all contracts, including
employment contracts. As a result of this
covenant, a duty arose on the part of the employer,
Arnerj-can Airlines, to do nothing which would
 deprive plaintiff, the employee, of the benefits of
the employment bargain - benefits described in the
complaint as having accrued during plaintiff's 18
years of employment.

The covenant, in a long-term employment situation, only
requires the employer to have a fair and honest reason for
termination. An employee's incompetence or lack of loyalty
certainly constitute sufficient reasons under this standard.
However, as in this case, an employer may recognize by
company policy an obligation to provide warnings and an
opportunity for change. Respondent's evidence, if believed,
proves that appellants failed to give respondent any
opportunity to correct mistakes or otherwise conform her
conduct.
Appellants' motivation for the termination was rendered
suspect by Ogolin's inconsistent testimony on the witness
stand. The jury may well have chosen not to believe
appellants' whole case, in light of Ogolin's lack of
credibility.
Respondent's 28 years of employment by Prudential gave
her a secure and objective basis for believing that, if her
work was satisfactoril-y performed, her employment would
continue. From the evidence presented, the jury could have
found that appellants had no fair and honest cause for
discharge and, in fact, had ulterior motives. A case for

jury deliberation was presented on the issue of wrongful
termination.
ISSUE TWO
Did the District Court err in its treatment of the
negligence issue? As sub-issues we determine whether it was
error for the trial court to allow amendment of the
pleadings; whether the negligence count was barred by the
statute of limitations; whether comparative negligence was
applicable; and whether workers' compensation was the
exclusive remedy?
Appellants argue that the negligence count was added
five years after termination and was thus barred by the three
year statute of limitations. This argument was recently
disposed of in Sooy v. Petrolane Steel Gas, Inc. (Mont.
1985), 708 P.2d 1014, 1017, 42 St.Rep. 1702, 1705-1706. A
complaint can be amended to include a new theory of recovery
where the basis for the new claim is the same occurrence
involved in the old claims. In this case, respondent argues
that the negligence claim and the claim for breach of implied
covenant of good faith and fair dealing arise out of the same
occurrence, include the same fa.cts and only involve different
legal theories. We agree. The amendment was proper.
Negligence has been recognized by this Court to be a
proper basis for recovery in wrongful termination cases.
Negligence was approved by this Court in Crenshaw v. Bozeman
Deaconess Hospital (Mont. 1984), 693 P.2d 487, 493, 41
St.Rep. 2251, 2259, wherein we said:
The allegation of negligence was clearly
established in respondent's complaint. We hold the
trial court committed no error in issuing the
instruction to the jury.
In Crenshaw, this Court relied upon the fact that
plaintiff's expert on personnel ma.nagement testified that the
discharge was made without a proper investigation by the
hospital administrator. Likewise, in this case, expert
testimony revealed that appellants committed 13 different
violations of Prudential firing policies. We find the
precedent of Crenshaw compelling and hold the negligence
theory was proper.
 Appellants argue that workers' compensation is the
exclusive remedy for negligence. However, appellants cite no
authority for the argument that there is a workers1
compensation remedy available for wrongful termination in
employment. In fact, the tort of wrongful termination does
not occur until the employment is terminated. The plaintiff
could hardly be injured in the course and scope of employment
by a tort that occurred subsequent to the existence of the
employment itself.
Finally, appellants contend that they were entitled to
an instruction on comparative negligence. Again, no
authority is cited to support this proposition. Ordinarily,
comparative negligence must relate to the same occurrences
which are the subject of the negligence alleged against
defendant. Blair v. Eblen (Ky. 1970), 461 S.W.2d 370;
Ferrara v. Leventhal (N.Y.App.Div. 1977), 56 A.D.2d 490, 392
N.Y.S.2d 920. The negligence relied upon in the case before
us involves negligent failure to review prior performance and
work history. Appellants do not contend that respondent
violated any duty in this regard. Any negligence of
respondent during the course of employment, such as work
mistakes, would go to the question of whether there was a
reasonable basis for the firing. That question was submitted
to the jury.
In awarding punitive damages the jury found appellants'
conduct to be llwil.lfulll.
Even if the trial court should have
submitted respondent's negligence to the jury, any error in
that regard would be harmless. Negligence is not a defense
to willful conduct. Simonson v. White (Mont. 1986), 713 P.2d
983, 987-988, 43 St.Rep. 133, 139.
ISSUE THREE
Did the District Court err in allowing opinion testimony
from expert witnesses about the covenant of good faith and
fair dealing?
Appellants claim error in the District Court's admission
of opinion testimony from expert witnesses about the covenant
of good faith and fair dealing. Again, this issue was
resolved in Crenshaw v. Bozeman Deaconess Hospital, supra.
The rationale for our holding in Crenshaw was stated by
Justice Harrison:
The instant case is not a scenario of simple facts.
Fault arising from breach of implied. covenant of
good faith and fair dealing is not easily
comprehensible to the average person. [The
expert's] testimony was based on professional
expertise and experience which the individual jury
members were unlikely to possess. Her testimony
assisted the trier of fact by providing the jury
with information and a prospective (sic) beyond the
common experience of a lay juror. (Citations
omitted. )

As noted previously, the experts who testified on behalf
of respondent found 13 different violations of Prudential
policies and personnel practices. Appellants complains that
one expert was permitted to evaluate whether Prudential
followed its policy as established in one of Prudential's own
memoranda. However, appellants failed to object at time of
trial. It is fundamental that a party may not raise, for the
first time on appeal, alleged errors pertaining to the
introduction of evidence or testimony that was not objected
to at the time of trial. Scofield v. Estate of Wood (Mont.

In Crenshaw, supra, this Court approved expert testimony
interpreting written employment policies. We said:
The trier of fact's experience does not extend to
Hospital disciplinary guidelines, much less the
ability to evaluate the propriety of such
 guidelines. ...
The trial court in its broad
discretion admitted the expert testimony. The
trial court's order will not be disturbed on appeal
in the absence of a clear showing of a manifest
abuse of discretion. (Citations omitted.)

Pursuant to the precedent established by Crenshaw,
supra, respondent was justified in utilizing expert
testimony. In permitting the expert witnesses to interpret
employment policies, the trial court acted within its
discretion.
ISSUE FOUR
Was it error to refuse admission of defendant's Exhibit
U.U.?
Appellants contend that the trial court erred in
refusing to admit a summary of teller transactions performed
by various tellers during the few days that respondent worked
as a teller prior to her termination. The exhibit was
objected to and the objection was sustained on the grounds
that it was a compilation of after-acquired evidence
regarding respondent's performance; that the information was
not known to appellants at the time of termination; and that
Ogolin had not examined the compilations for the purpose of
making a decision about firing respondent. Therefore, the
after acquired-evidence could not be used to support
termination at time of trial. See Swanson v. St. John's
Lutheran Hospital (1979), 182 Mont. 414, 422, 597 P.2d 702,
706-707. The trial court ruling was correct. In any event,
Ogolin was allowed to testify as to the essence of the
information contained in the exhibit. Any error on the part
of the trial court in refusing the exhibit was harmless in
light of Ogolin's testimony.
ISSUE FIVE
Did the District Court err in failing to reduce damages
by $26,290.53, the amount the plaintiff would have received
had she not refused to accept the position as a part-time
teller following her termination?
Appellants contend that respondent's award for loss of
wages, that sum being $94,170, should have been reduced by
the trial court in the amount of $26,290.53, based on
respondent's alleged failure to mitigate da.mages by accepting
Prudential's offer of part-time employment'.
There was abundant evidence that the respondent sought
to mitigate her damages by seeking other employment.
However, the law does not require respondent to mitigate
damages by accepting inferior employment from her former
employer. The rule was stated by the California Supreme
Court in Parker v. Twentieth Century-Fox Film Corp. (Cal.
1970), 474 P.2d 689, wherein the court said:
[Rlefore projected earnings from other employment
opportunities not sought or accepted by the
discharged employee can be applied in mitigation,
the employer must show that the other employment
was comparable, or substantially similar, to that
of which the employee has been deprived; the
em~lovee's reiection of or failure to seek other
& z

available empioyment of a different - inferior
or
kind may not be resorted to in order to mitigate
damages. (Emphasis supplied. ) (Citations
omitted. 1

Appellants requested, and were given, a. complete and
accurate mitigation instruction. The instruction reflected
the case law, above cited, stating that a wrongfully
terminated person has a duty to reasonably seek and maintain
other employment, but no duty to accept inferior employment.
We find the trial court did not err in its handling of this
issue.
ISSUE SIX
Was there substantial credible evidence to submit
punitive damages to the jury? We include within this issue
the question of whether punitive damages were excessive as a
matter of law.
We have detailed the evidence presented by respondent in
support of her claim for breach of implied covenant of good
faith and fair dealing. That evidence need not be restated
here. In addition to the evidence previously set forth,
testimony from appellants' president revealed a calloused
attitude toward older employees. Prudential's Donovan
referred to older employees as "dead wood", "old dead wood",
and "ballast". He reiterated at time of trial that he
considered Mildred Flanigan to be "ballast".
The jury could have inferred malice from the lack of
ca.ndor on the part of appellants. Appellants' position at
time of trial was that respondent was terminated for
inadequate performance yet, 14 months later, appellants
offered respondent a part-time job. Further, Ogolin first
testified that respondent was terminated because of a
reduction in force and then later testified that she was
terminated because of inadequate work performance. The jury
may have chosen to believe she was terminated because of
Ogolin's resentment stemming from respondent depriving him of
the choicest vacation times.
Appellants argue that they had no notice that their
conduct would be subject to punitive damages. However, the
punitive damage statute, S 27-1-221, MCA, was in effect at
the time appellants committed the subject acts. Appellants
were fully apprised that malicious or oppressive conduct on
their part could lead to the imposition of punitive damages.
Our decisions in First National Bank in Libby v. Twombly
(Mont. 1984), 689 P.2d 1226, 41 St.Rep. 1948, and rib by v.
Northwestern Bank of Great Falls (Mont. 19851, 704 P.2d 409,

42 St.Rep. 1133, support this result.
Appellants complain that the punitive damages are
excessive and based upon passion or prejudice. Section
25-11-102(5), MCA, provides that a verdict or a decision may
be vacated and a new trial granted "on the application of the
party aggrieved. for . . . excessive damages appearing to have
been given under the influence of passion or prejudice."
Appellants failed to raise the issue of excessiveness in
post-trial motions. This Court need not now consider that
contention on appeal. In Mitchell v. Thomas (1932), 91 Mont.
370, 8 P.2d 639, defendant claimed damages were excessive,
showing passion and prejudice on the part of the jury. The
Supreme Court stated:
A motion for a new trial was not made, and the
trial judge was not given an opportunity to pass
upon this feature of the case. If he had been
asked to reduce the amount of the verdict, he might
have done so. We have no substantial basis for
changing it.
91 Mont. at 383, 8 P.2d at 643.
This Court has long adhered to the principle that "[tlhe
amount to be awarded as damages is properly left to the jury
and this Court will not substitute its judgment for that of
the jury . . ." Salvail v. Great Northern Railway Co.
(1970), 156 Mont. 12, 31, 473 P.2d 549, 560. While the
punitive damages in this case are large, they are within the
discretion of the jury and were not raised as error in
post-trial motions.
Judgment for the plaintif all respects.
We concur: /

ief Justice
 Mr. Justice Fred J. Weber dissents as follows:

I dissent from that portion of Issue Six of the majority
opinion which concludes that the punitive damages awarded in
this case were not excessive. The jury returned the verdict
for the plaintiff giving her economic damages of $94,170,
emotional distress damages of $100,000 and punitive damages
of $1,300,000. I conclude that under the factors hereafter
described, the award of punitive damages in the amount of
$1,300,000 was excessive.
Section 27-1-221, MCA, contains the statutory provisions
with regard to punitive damages. Until the 1985 amendment
which is not pertinent in this case, that statute provided
for the award of punitive damages where the defendant has
been guilty of oppression, fraud, or malice, actual or pre-
sumed, and allowed the award of damages for the sake of
example and by way of punishment. No additional factors were
set forth. In 1927 this Court described what a jury should
consider in setting the amount of a punitive damage award:

"The jury should take into consideration the atten-
dant circumstances, such as the malice or wanton-
ness of the act, the injury intended, the motive
for the act, the manner i n which it was committed
and the deterrent effect upon others ... Accord-
ing to the general rule, ii is proper for the jury
to-considerdefendant's wealth and pecuniary abili-
ty in fixing the amount of damages." 17 C. J. 994,
995. ... "The public good in the restraint of
others from wrongdoing, as well as the punishment
of the offender, is to be considered in estimating
exemplary damages. " Ward v. Ward, 41 Iowa, 686.
Based on those determinative factors and seneral
principles, in this state - - - - -
the rule is that the
amount of exemplary damages - -be reasonable.
must
.
( ~ m p h a s isupplied)
s

Ramsbacher v. Hohman (1927), 80 Mont. 480, 489, 261 P. 273,
 In the case of Butcher v. Petranek (1979), 181 Mont.
358, 361, 593 P.2d 743, 744, this Court restated the rule in
Montana that a jury award of punitive damages would not be
disturbed unless the amount, considered in connection with
the facts, indicates the jury was influenced by passion,
prejudice, or corruption. My research indicates that there
is a great difference of opinion in the various states on the
manner and extent of review of punitive damages, both by the
trial court and the appellate court. However, I do note that
many courts have concluded that it was appropriate to set
aside punitive damage awards on the basis of passion and
prejudice, or similar rationales.
I approve the factors to be considered in reviewing
punitive damages as set forth in Mallor and Roberts, Punitive
Damages: Toward a Principled Approach, 31 Hastings L.J. 639
(1980). These factors are essentially as follows:

1. the severity of the harm likely to occur from
defendant's conduct;
2. the degree of reprehensibility of defendant ' s
conduct;
3. the profitability of the conduct;
4. the financial position of the defendant;
5. the amount of compensatory damages;
6. the costs of litigation;
7. potential criminal sanctions; and
8. other civil actions against the defendant based
on the same conduct.
Because this is a dissent, I will not extensively ana-
lyze the facts as they apply to each of these factors. I do
suggest that a clear contradiction is shown if we apply
factor (5) to the present case. The amount of the compensa-
tory damages totals $194,170. This factor alone raises a
significant question as to the punitive damages award of
$1,300,000. As I seek to apply the above factors in my
review of the facts of this case including the outrageous
conduct on the part of the defendant, I conclude that an
award of $1,300,000 as punitive damages is excessive.
This case tends to suggest the very real interplay which
is possible on the jury's part with regard to the various
categories of damages. We speak of economic damages and
emotional distress damages as being compensatory in nature
and different in character from punitive or exemplary damag-
es. I'm not certain tha.t the jury made that distinction. As
an example, had the jury not been allowed to award punitive
damages in excess of one million dollars as was done in this
case, the facts would seem to warrant an award for emotional
distress in excess of $100,000.
I would therefore reverse the judgment and remand for
new trial so the plaintiff would have an adequate opportunity
to recover all types of damages which she may prove.