No. 86-543
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
GREG J. STARK,
Plaintiff and Respondent,
-vs-
THE CIRCLE K CORPORATION,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Milodragovich, Dale & Dye; Kim L. Ritter, Missoula,
Montana
Streich, Lang, Weeks & Cardon; Lawrence A. Katz argued,
Phoenix, Arizona
For Respondent:
Lynch & Best; John F. Lynch argued, Great Falls,
Montana
Submitted: October 21, 1987
Decided: March 1, 1988
MhR 1
' 1986,
Filed :
Clerk
6 . Justice John C. Sheehy delivered the Opinion of the
Court.
Circle K Corporation appeals from a jury verdict from
the Second Judicial District, Silver Bow County. The jury
awarded Greg Stark (Stark) $200,000 compensatory and $70,000
punitive damages for breach of the implied covenant of good
faith and fair dealing relating to his termination. We
affirm.
Circle K presents the following issues for our review:
1. Was there sufficient credible evidence to support a
jury verdict finding a breach of the covenant of good faith
and fair dealing in the termination of Stark's employment?
2. Was there substantial credible evidence for the jury
to properly award $200,000 of compensatory damages?
3. Did the District Court improperly allow the economic
damages summary to be submitted into evidence after
settlement of instructions?
4. Was there sufficient credible evidence to support
the award of punitive damages?
Stark graduated from Butte High School in 1973. He had
no other vocational or educational training. Following two
years of military service, Stark held several jobs, including
two in the retail grocery business.
On December 22, 1981, Stark applied for a job with
Circle K in Butte. The application provided:
I further understand and agree
that . .. subsequent to being employed, 1 may be
dismissed with or without cause.
Circle K subsequently hired Stark at minimum wage as a.
clerk on December 29, 1981. Circle K's opinion of Stark's
ability was manifested by a number of promotions and salary
increases. On April 24, 1982, he was promoted to assistant
manager in Butte and received a wage increase. On June 14,
1982, he received another wage increase because he " [worked]
hard on the job and is an asset to the company." On July 19,
1982, he was promoted from assistant manager to acting
manager in Butte and later, Anaconda. He was promoted to
"exempt" status manager and given another raise to $1,000 per
month on Novenlber 1, 1982, because Stark had been "doing a
good job" and had "good inventory." Positive job evaluations
resulted in continued pay increases until he was promoted to
zone manager on November 1, 1983.
As a zone manager, Stark was responsible for supervising
eight stores located in Butte, Helena, Townsend, and
Anaconda. He held the position of zone manager up to the
date of his termination from Circle K on August 22, 1984.
His earnings had increased to approximately $17,000 per year
at that time. In addition, Stark also received a company car
which he valued at approximately $3,000 per year.
During the course of Stark's employment, his job
performance was regularly evaluated. He was consistently
rated as very good to superior in the company's performance
review appraisals. Stark's rating as the number one zone
manager in the district reflected his abilities and
achievements.
On April 1, 1984, Don Herring was promoted from zone
manager to district manager of the Great Falls district. As
such, he supervised four zone managers and was responsible
for 25 stores. Herring performed the evaluations of his zone
managers. He rated Stark as his best zone manager.
However, Herring soon became alarmed about inventory
shortages reported by the district stores. During
conferences in Great Falls with the four zone managers,
inventory control was discussed. Herring also brouqht in, at
some point, a new inventory person he had formerly worked
with in Oregon.
Preliminary inventory data for the month of August
indicated a significant inventory loss at three Butte stores
in Stark's zone. Herring requested that Stark meet him in
Helena on August 14, 1984. Prior to the meeting, Herring
prepared a written document entitled "Employee Counseling
Report." This document, dated August 15, 1984, stated:
Your inventory's [sic] in three stores are over
S4,000 short, this is totally unacceptable. You
are being put on 30 day probation, during this time
I would expect you to make every effort to correct
the situation.
Herring had Stark read the report and requested that he
sign. Stark refused to sign because he felt the report was
unfair and inaccurate. Stark stated the report was
inaccurate because the new inventory person brought in by
Herring was not conducting the inventories properly. Stark
also informed Herring that the report was unfair because
other managers in the district had similar shortages and were
not written up. Herring indicated he would look into the
matter. The meeting ended at this point.
A few days later, Stark attended the usual manager's
meeting in Great Falls. Herring did not mention the report
or the inventory shortage at this time. On August 22, 1984,
Herring and Stark again met in Helena and Herring once more
offered the report to Stark to sign. Stark again refused and
was terminated for insubordination relating to his refusal to
accept responsibility for the inventory shortage.
The parties disagree as to whether Herring had planned,
prior to the refusal on August 22, 1984, to fire Stark.
Herring testified he had no intention of firing Stark unless
Stark refused to sign the report the second time. The
evidence showed that Herring had Stark's final pay check with
him. In addition, Herring brought another zone manager with
him from Great Falls to drive Stark's company vehicle. The
other zone manager was dropped off at a near-by coffee shop
just prior to the Stark-Herring meeting.
At trial, the amount of inventory shortage was strongly
contested. Although Herring had indicated at the August 14,
1982, meeting, that he would check into the figures, he
failed to do so. Stark indicated at trial that he had
rechecked the figures and found significant discrepancies.
Large inventory overages in the three Butte stores for
September tend to support Stark's allegation.
The parties also contest whether the termination was in
accord with Circle K policy. At the time in question, Circle
K had published a pamphlet setting forth company policy
entitled "Zone Manager's Guide." The guide required, inter
alia, consistent discipline, progressive discipline, and
written rules which are well-known to the employees. This
type of discipline was designed to "provide guidelines for
conduct and a set of expectations which an employee may rely
upon." Punishment should "accurately reflect the nature and
seriousness of the proven offense znd the employee's prior
record. "
Herring admitted the policy guide also applied to a
district manager disciplining a zone manager. Concerning
termination, the guide provides:
Termination - - Issue - "Just Cause"
and the of -
Unemployment compensation is often rewarded because
the employer has failed to produce evidence of
"just cause". That is, was this employee
terminated for a reason related to misconduct,
negligence on his or her part, which despite
efforts by the employer could not be corrected?
When you have decided to terminate the employee,
consider the following question:
* Was the employee informed in writing of the rule
or policy related to this offense?
* Has the employee been warned previously?
* Was this warning in writing?
* Do I have all the facts?
* Was a final warning issued?
* Should I check with the District Manager before
taking action?
* Have all employes guilty of this violation
received the same penalty?
Documentation
Employees are legally entitled to fair treatment.
In the event of an arbitration dispute, it is
frequently the employer who must present evidence
to support their actions. This evidence comes in
the form of written warnings, reviews, and/or
termination reports. Without written support,
judgments frequently are rendered in the employee's
favor .
Make certain that you document. any disciplinary
actions taken or problems experienced with your
employees. Be specific. "Failure to follow
company policy" is not sufficient. What policy?
Was the employee warned? Are your warnings signed
by the employee as well as the Zone Manager?
Be thorough, be fair, and be professional.
Disciplining for results is a skilled activity.
Although Herring indicated that he had counseled Stark
on prior occasions, the August 15, 1984 employee counseling
report indicates that it was the initial counseling session.
Stark denied that there was prior counseling.
Herring also testified that an employee does not have
the right to refuse to sign a counseling report he or she
deems incorrect. Stark indicated that company policy allowed
an employee to refuse to sign an inaccurate or unfair report.
The testimony of Alan Brown, Circle K's personnel expert, and
Jim Estes, a Circle K employee and Stark's former supervisor,
tends to support Stark's position.
Stark also testified that other zone managers had
inventory shortages in excess of $2,000 for two or more
months without receiving an employee counseling report. The
evidence confirmed Stark's testimony. Those managers were
also located within the G r e a t F a l l s District.
Near the end of Stark's case in chief, Joseph Kasperick,
a business and economics professor at Montana Tech, testified
concerning Stark's damages. Professor Kasperick testified,
inter alia, that his calculations were based on national and
state data concerning average work life, interest rates,
price increases, and cost of living increases; that he had
interviewed Stark; that he had examined Stark's tax records
and pay slips; that his calculations were based on the
assumption that Stark would live to the end of his expected
work life and that he would have held a job with similar pay;
that the present value of the future difference between what
Stark would have made and what he would make based on his
current earnings is approximately $146,000; that Stark had
suffered approximately $40,000 in foregone income to date;
and that economic predictions were not exact. Counsel for
Circle K did not object to Professor Kasperick's conclusions.
Professor Kasperick was cross-examined by counsel and damages
were argued during closing argument. Stark also presented an
employment expert who testified similar jobs were not
available in the Butte area.
Following the adverse jury verdict, Circle K moved for a
judgment notwithstanding the verdict and a new *.rial. Both
motions were denied. This appeal. followed.
Circle K contends that there was insufficient evidence
to support a finding of breach of the implied covenant of
good faith and fair dealing. Thus, it is alleged the
District Court improperly denied the motion for a judgment
notwithstanding the verdict.
The standard of review is stringent. "The courts will
exercise the greatest self-restraint in interfering with the
constitutionally mandated processes of jury decision."
Barmeyer v. Montana Power Co. (19831, 202 Mont. 185, 191, 657
P.2d 594, 597. A judgment notwithstanding the verdict is
proper only where the evidence presented demonstrates a
complete absence of proof in support of the prevailing party.
Jacques v. Montana National Guard (1982), 199 Mont. 493, 504,
649 P.2d 1319, 1325. When examining the sufficiency of the
evidence, the evidence and all inferences therefrom will be
considered in a light most favorable to the prevailing party.
Kukuchka v. Zien~et (Mont. 1985), 710 P.2d 1361, 1363, 42
St.Rep. 1916, 1917. A court will not substitute its judgment
for that of the jury. Evidence may be inherently weak and
still be sufficient to uphold the jury verdict. Anderson v.
Jacqueth (Mont. 1983), 668 P.2d 1063, 1064, 40 St.Rep. 1451,
1453.
Circle K contends the contractual provision providing
that Stark could be terminated "with or without cause"
overcomes this heavy burden and precludes a finding of breach
of good faith and fair dealing. It is alleged that the
written contractual provision allowing termination without
cause cannot be modified by oral representations which would
give rise to a reasonable expectation of anything but "at
will" employment. Circle K misunderstands the nature of good
faith and fair dealing.
In Gates v. Life of Montana Insurance Co. (1982), 196
Mont. 178, 638 P.2d 1063 (Gates - , we recognized that the
I)
covenant of good faith and fair dealing is applicable to
employment contracts. The covenant is implied as a matter of
law based on the public policy of this State. It does not
depend on contractual terms for its existence, nor is the
covenant of good faith and fair dealing subject to
contractual waiver, express or implied. See S 28-2-701 (2),
MCA. "The duty arises out of the employment relationship yet
the duty exists apart from, and in addition to, any terms
agreed to by the parties." Gates v. Life of Montana
Insurance Co. (Mont. 1983), 668 P.2d 213, 214, 40 St.Rep.
1287, 1289 (Gates - 11). Despite the express contract, the
question of whether the "covenant of good faith and fair
dealing is implied in a particular case depends upon
objective manifestations by the employer giving rise to the
employee's reasonable belief that he or she has job security
and will be treated fairly." Dare v. Montana Petroleum
Marketing Co. (Mont. 1984), 687 P.2d 1015, 1020, 41 St.Rep.
1735, 1739.
The record demonstrates Stark experienced objective
manifestations reasonably giving rise to a belief of job
security. Circle K repeatedly acknowledged Stark's positive
input to the company. Stark received several promotions; his
wages increased from minimum wage to $20,000 per year
including benefits; he consistently received positive job
evaluations; he was deemed "an asset to the company"; the
company guide book indicated that generally employees should
be terminated only after attempts to correct deficiencies;
and Alan Brown indicated that Stark was a permanent employee.
We find the evidence considerably more than sufficient for
the jury to find that Stark had an objectively reasonable
belief that he would be fired only for good cause.
In the alternative, Circle K argues that good cause did
exist to fire Stark. Implicit in Circle K's argument is the
contention that an employer's determination of "good cause"
is not subject to review by the jury. Circle K argues that
the jury cannot decide "whether Herring's instructions [were]
fair or unfair, necessary or unnecessary;" that Stark must
blindly obey the commands of a superior. We disagree.
The implied covenant of good faith and fair dealing is
designed to prevent the abuses of unfettered discretion
inherent in a situation of unequal bargaining power. Dare,
687 P.2d at 1020, 41 St.Rep. at 1740. An employee is not
required to leap at his masters every command. See Delaney
v. Taco Time International (Ore. 1984), 681 P.2d 114
(employee wrongfully terminated for refusal to sign false
report concerning fellow employee); Wagenseller v. Scottsdale
Memorial Hospital (Ariz. 1985) , 710 P. 2d 1025 (hospital
employee stated cause of action following discharge for
refusal to take part in skit in which buttocks are exposed);
Tameny v. Atantic Richfield Co. (Cal. 1980), 610 P.2d 1330
(employee who refused to participate in gasoline price-fixing
wrongfully discharged); OISullivan v. Mallon (N.J. 1978), 390
A.2d 149 (x-ray technician cannot be discharged for refusal
to perform catheterizations when the law requires such
procedures be performed by a registered nurse or doctor);
Trombetta v. Detroit, Toledo & Ironton R. Co. (Mich. 1978),
265 N.W.2d 385 (recognizing potential cause of action for
wrongful discharge resulting from refusal to falsify
pollution control reports); and Peterman v. International
Brotherhood of Teamsters (Cal. 1959), 344 P.2d 25 (employee
cannot lawfully be discharged for refusal to commit perjury).
We will not require an employee to sign a written statement
he believes to be false so that an employer can later justify
termination. An "employee is entitled to some protection
from injustice." Gates I, 196 Mont. at 184, 638 P.2d at
1067. Although an employer is entitled to latitude in making
business decisions, that latitude cannot be used as a facade
to justify a breach of the covenant good faith and fair
dealing. To rebut Stark's allegation, Circle K need only
have shown a fair and honest reason for termination.
Flanigan v. Prudential Federal Savings and Loan Assoc. (Mont.
1986), 720 P.2d 257, 43 St.Rep. 941.
Circle K apparently failed to do so, however. Contrary
to Circle K's assertion, the jury, as the trier of fact, does
determine whether good cause existed. Flanigan, 720 P.2d at
261, 43 St.Rep. at 946, Dare, 687 P.2d at 1019, 41 St.Rep. at
1739. The jury is not bound by the employers explanation.
See Flanigan, supra (employee allegedly terminated as part of
reduction in force); Crenshaw v. Bozeman Deaconess Hospital
(Mont. 1984), 693 P.2d 487, 41 St.Rep. 2251 (employee
allegedly terminated for disrupting continuity of care,
continually getting in the way of patient care, disorderly
conduct, breach of confidentiality, etc.); Dare, supra
(employee allegedly terminated for refusing to clean
designated areas, having men hang around the station, closing
the station early, coming in late, and lack of
responsibility). The cases above indicate that the proffered
reason does not always conform to the evidence.
In the instant case, Herring's apparent lack of candor
may have caused the jury to disbelieve Circle K's entire
explanation. The record demonstrates that Herring was
impeached on several matters, that his testimony conflicted
with prior testimony given at an unemployment compensation
hearing, and that his testimony conflicted with the
documentary evidence. This situation led Judge Davis to
comment :
[Herring] was not a very good witness. I was
restless and twisting in my chair at the way he
responded. I am wondering how that may have
affected the jury.
Circle K contends that the inconsistencies in Herring's
testimony were only matters of opinion and not fabrication.
We need not reach the issue. The jury as trier of fact,
determines the credibility of a witness and the reason for
termination. Flanigan, 720 P.2d at 261, 43 St.Rep. at 946.
Herring's "apparent" lack of credibility is sufficient for
the jury to find Circle K did not have a "fair and honest
reason for termination." Flanigan, supra. The jury also
could have found that Circle K failed to follow company
policy as set forth in the Zone Managers Guide. We hold
there is sufficient credible evidence to support the jury
verdict.
Circle K also contends the award of compensatory damages
is excessive and speculative because Professor Kasperick and
the jury improperly assumed Stark would have remained with
Circle K the remainder of his work life. We disagree.
The standard of review for reversal requires a finding
that the jury award is so grossly out of proportion as to
shock the conscience. Frisnegger v. Gibson (1979), 183 Mont.
57, 598 P.2d 574. Where it appears that the jury did not act
arbitrarily or capriciously, its decision on the amount of
damages must stand. The litigants agree that the jury
determined the amount of damages based on the testimony of
Professor Kasperick. We do not find such a method of
determination to be arbitrary or capricious.
Section 27-1-203, MCA, provides that "damages may be
awarded ... for detriment .. . certain to result in the
future." However, no person can foretell the future. In
Frisnegger, we construed 5 27-1-203 to require that damages
need only be reasonably certain.
While no case in Montana has construed this
statute, it has always been the practice in Montana
to instruct juries that future damages need only be
reasonably certain, and not absolutely certain as
the statute seems to imply. In holding, as we do,
that future damages need only be reasonably certain
under the evidence, it must be granted that in
determining an award for future damages, a jury, or
an expert testifying on the subject, must to some
degree engage in conjecture and speculation. When
the conjecture and speculation is based upon
reasonably certain human experience as to future
events, the jury or trier of fact is entitled to
rely on that degree of reasonable certainty in
fixing and awarding future damages.
183 Mont. at 71, 598 P.2d at 582.
The record demonstrates that compensatory damages, as
awarded by the jury, were "reasonably certain" within the
meaning of Frisnegger. Professor Kasperick properly relied
upon state and national data, Stark's records and interviews
with Stark to derive input for his calculations. See Rule
703, M.R.Evid. (expert may base opinion upon facts or data
made known to him at or before the hearing). Professor
Kasperick then stated his conclusions and engaged in an
exhaustive explanation of his methodology. The fact that
Professor Kasperick relied upon Stark's hearsay statement
that he planned to stay with Circle K is not dispositive.
See Azure v. City of Billings (1979), 182 Mont. 234, 596 ~ . 2 d
460 (expert may rely upon facts that would not be admissible
by themselves because they constituted hearsay) . It is not
unusual for a person who has found success in a chosen
profession to remain with a company until retirement. The
jury, as trier of fact, apparently agreed.
Circle K argues, in effect, that an award of 28 years
lost income is per se excessive. We disagree. It is
self-evident that the purpose of damages is to make an
injured party whole. Stark presented evidence that similar
work was not available in the Butte area and the amount of
income he had lost as a result. Stark ' s evidence went
substantially unrebutted.
Circle K did not object to Professor Kasperick's
conclusion nor did it present its own expert on damages or
employment opportunity. Circle K had the opportunity to
cross-examine Professor Kasperick and to argue the amount of
damages in closing argument. Jury instructions 7, 25 and 26
informed the jury they were not to speculate and should only
award reasonable damages. Under these circumstances, we do
not find 28 years to be per se excessive. Stark presented
sufficient credible evidence for the jury to find he would
not be able to find comparable employment in Butte. We will
not substitute our judgment for that of the jury. As the
District Court indicated, "it would be the height of judicial
arrogance [for the court] to substitute its own findings and
beliefs for those [of the] tried and true women of the jury."
The third issue before the Court concerns the admission
into evidence of an economic damages summary. Following
settlement of instructions, counsel for Stark moved to reopen
his case-in-chief and offered an economic damages summary
into evidence. The document was admitted over Circle K ' s
objection that testimony had closed.
It has long been the rule in Montana that the propriety
of a motion to reopen the case is left to the sound
discretion of the trial court. Alderson v. Marshall (1888),
7 Mont. 288, 16 P. 576; Cole v. Helena Light & Railway Co.
(1914), 49 Mont. 443, 143 P. 974; Brange v. Bowen (1920), 57
Mont. 77, 186 P. 680. No rigid nor fixed formula can or
should be employed to determine when a motion to reopen is
proper. The trial court, which has a feel for the case, can
best determine what is necessary and appropriate to achieve
substantial justice. Absent a clear abuse of discretion, the
determination of the trial court will be upheld. Alderson,
supra.
In the instant case, the material contained within the
economic damages summary had been thoroughly presented during
Stark's case-in-chief. Circle K was not unduly surprised by
its contents. We find no abuse of discretion. See Brange,
supra.
Finally, Circle K contends there is an absence of proof
to support a verdict granting Stark punitive damages against
Circle K and therefore a judgment notwithstanding the verdict
should have been granted. We find there is sufficient
credible evidence to uphold the jury verdict.
At the time in question, 27-1-221, MCA, (1983),
provided that punitive damages may be awarded where "the
defendant has been guilty of oppression, fraud, or malice,
actual or presumed ..." In Flanigan, we recognized that
the jury can infer malice from a lack of candor on the part
of the employer. 720 P.2d at 265, 43 St.Rep. at 951. The
apparent lack of candor on the part of Herring is sufficient
for the jury to have inferred malice.
The judgment of the District C-ourt is affirmed.
/
i
We Concur:
Chief Justice
Mr. Justice L. C. Gulbrandson, dissenting.
I respectfully dissent.
The majority, in affirming the award of $200,000
compensatory damages to include 28 years of lost income in
the future, and $70,000 punitive seems to rely mainly on (a)
objective manifestations of job security for Stark, (bl
evidence of inaccurate inventory figures used by Herring, and
( c ) lack of candor by Herring to infer malice sufficient to
justify the punitive damage award.
Any objective manifestations of job security given
Stark by way of positive write-ups, promotions and salary
increases were prior to the inventory shortages arising in
the spring of 1984. From that time, until termination on
August 22, 1984, there were no positive write-ups,
commendations, or salary increases for Stark, but there were
meetings, counsellings, and discussions regarding the serious
matter of major inventory shortages in the district. The
inventory shortages supplied to Herring, as District Manager,
indicated that Stark had the worst inventory shortages of any
zone manager in Herring's district. The actual inventory
figures, for Stark's zone, supplied to Herring were: April
-- $3,469.19 short; May -- $608.70 overage; June -- $1,340.44
short; July -- $3,244 short; and preliminary August figures
-- $6,750 short. The September overages obviously were not
available until after Stark's refusal to sign the employee
counseling report and subsequent termination on August 22.
The majority opinion overlooks the fact that Stark was
present during the inventories, made no objection to the
figures, signed the inventories, and failed to implement the
control inventory procedure if he thought the inventory
figures were incorrect, even though he had participated in
twenty-three inventories as a manager. The manner in which
Stark was discharged, in my opinion, did not indicate any
basis to submit the issue of punitive damages to the jury.
The record is clear that both meetings between Herring and
Stark took place in a private, secluded place with no other
persons present. The discussions were limited to control of
inventories and the request that Stark sign the counselling
report. Herring testified that no other Circle K employee or
manager had ever refused his request to sign the counselling
report and the evidence is clear that Stark drafted similar
reports and required that his subordinates sign them. The
fact that Herring had Stark's final. paycheck with him at the
second meeting cannot, in my opinion, be used to infer malice
justifying punitive damages. Herring testified that had
Stark signed the counselling report upon the second request,
Stark would not have been terminated, but, in anticipation
that Stark might again refuse to sign, he had the check
prepared because he thought he had to deliver an employee's
final check within 24 hours. Section 39-3-205(2), MCA, is as
follows:
(2) When an employee is separated for
cause from employment by the employer,
all the unpaid wages of the employee
shall become due and payable immediately
upon such separation.
Section 39-3-206, MCA, provides the following penalties for
failure to comply with S 39-3-205:
Any employer, as such employer is defined
in this part, who fails to pay any of his
employees as provided in this part or
violates any other provision of this part.
shall be guilty of a misdemeanor. A
penalty shall also be assessed against.
and paid by such employer and become due
such employee as follows: a sum
equivalent to the fixed amount of 5% of
the wages due and unpaid shall be
assessed for each day, except Sundays and
legal holidays, upon which such failure
continues after the day upon which such
wages were due, except that such failure
shall not be deemed to continue more than
20 days after the date such wages were
due.
It seems that a Catch-22 situation has been created
when an employer, attempting to comply with a statute to
avoid a misdemeanor conviction and a doubling of wages due an
employee, can have evidence of said attempts at payment used
against him to justify an award of punitive damages.
The transcript of the final oral argument of
plaintiff's counsel includes the following:
[Llike Mr. Milodragovich said, you've got
to send a message to Phoenix, you've got
to tell these people that in Butte,
Montana, you've got to follow your
policies because that is what the law
says. These people only understand
money. That is all they understand is
money. That is the bottom line. That is
why they are in business. There is an
exhibit in here that says that the gross
sales of Circle K Corporation is 1.6
Billion Dollars. Big, big company. It
says here that the net worth is 122
Million Dollars. Now, I would think that
if a Million dollars was had to be paid
by this company that they would get it
right the next time. That they wouldn't
push people around. That they would
admit that they did things wrong. That
is the only way that you are ever going
to teach these people what they are
doing. It's like sending a message to
Phoenix just like Mr. Milodragovich said.
You know what the crowning glory is in
this case? It's that Cheryl Wellnitz
came down from Great Falls with Mr.
Herring on the 22nd to drive Greg Stark's
car back. He knew he was going to
terminate Greg Stark on the 22nd. It
wasn' t that he gave him another
opportunity to sign that report. He was
getting rid of him. He didn't want to
check into any information. He was
getting rid of him. His final pay check
was made out. He had that with him. If
he didn't intend to fire him, what did he
have the final pay check for? . . .
In my opinion, the issue of punitive damages should not
have been allowed, over objection, to be considered by the
jury, and the trial judge should have so ruled, based upon
the evidence presented.
The failure of the trial judge to dismiss the punitive
damages claim, and the subsequent refusal to enter judgment
n.o.v., or to grant a new trial, in my view, constitutes
reversible error.
By allowing evidence of the defendant's company's gross
sales of over 1.5 billion dollars and a net worth of over 122
million dollars, the entire trial was contaminated with
highly prejudicial, but wholly irrelevant, evidence.
I would therefore reverse the judgment entered and
would remand for a new trial on the issue of breach of the
covenant of good faith and
Mr. Justice John Conway Harrison joins in the forgoi,ngdissent
of Mr. Justice L. C. Gulbrandson.
"
dk
u
Mr. Chief Justice J. A. Turnage co curs in the foregoing dissent
of Mr. Justice L. C. Gulbrands n.
ef Justice