Lead Opinion
We granted a hearing in this case for the purpose of considering whether certain jury instructions on respondeat superior and damages for intentional infliction of emotional distress were prejudicially erroneous. After reviewing the record, we conclude that the opinion by Presiding Justice Taylor for the Court of Appeal in all other respects correctly treats and disposes of the issues involved; that the judgment of the trial court should be affirmed; and that with certain changes, the opinion of the Court of Appeal is adopted as the opinion of this court. The opinion, with appropriate deletions and additions, follows:
Defendants, Leonard W. Johnson (Johnson), Max French (French), and Arthur G. McKee & Company (McKee), appeal from a judgment entered on a jury verdict in favor of plaintiff, Anand P. Agarwal (Agarwal), in his action for compensatory and punitive damages for defamation and intentional infliction of emotional distress. The major contentions on appeal concern the sufficiency of the evidence of malice and intentional infliction of emotional distress, and the correctness of the jury instructions on an employer’s liability for intentional torts of his employees and the proper measure of damages for intentional infliction of emotional distress. For the reasons set forth below, [] [the judgment is affirmed].
Viewing the record most strongly in favor of the judgment, as we must, the following pertinent chronology of facts appears: In May 1969, Agarwal, a native of East India, received his masters degree summa cum laude in systems engineering from West Coast University, which was then rated No. 1 in this field. He was one of three students graduating with distinction in a class of 82. He accepted an offer for employment from McKee in its San Francisco office rather than one from Lockheed because of the management status and potential. His title with McKee was that of scheduling engineer and his beginning salary was $1,000 per month.
During the 16-month period of his employment, Agarwal worked primarily for Johnson on a variety of assignments, including: development and implementation of variable budgets for project services; implementation of computerized personnel information systems; preparation of computerized schedules on several projects; preparation of manpower forecasts; preparation of computerized concrete estimating data and preparation of engineering progress reports. He also designed a sophisticated comprehensive computerized system for costs control and scheduling that had a potential projected annual savings of $70,000 to $80,000. Agarwal performed all these assignments in a competent manner. Agarwal was never told by anyone that any aspect of his work was unsatisfactory or that he had any problems in working or cooperating with other employees. Both Johnson and French admitted that Agarwal’s work on specified projects was good and that he had not been criticized until the last two days of his employment.
In January 1970, when Agarwal received a $50 a month merit increase, Johnson indicated that Agarwal had been doing a good job. McKee’s policy required annual performance reviews by the immediate supervisor and one other person familiar with the employee’s work. Agarwal had a single performance review conducted by Johnson and French in June 1970. He received the lowest possible rating of “marginal” on this review, but was never informed of this fact, given any suggestions for improvement or given any field assignments to train him in certain practical aspects of McKee’s work with which he was not familiar.
Beginning in September 1969, Agarwal became aware of certain instances of neglect or unfairness in the manner in which he was treated
Subsequently, in October 1969, Johnson moved Agarwal out of the office that Agarwal had been sharing with Thomas. Johnson stated to Agarwal that he was being moved because Thomas needed more space. Johnson indicated that, in fact, the move was the result of personality problems between Agarwal and Thomas [and the latter’s] annoyance at some of Agarwal’s personal habits; however, these matters likewise were never mentioned to Agarwal. The smaller office into which Agarwal was moved had a lighting fixture without a shade which made it difficult for Agarwal to work. He mentioned this matter to Johnson, but Johnson did nothing about it. Agarwal subsequently found a broken shade lining and put it on the fixture, but someone kept removing it. Several months later, after R. Geronim was moved into the office with Agarwal, there were no more problems with the light fixture.
Agarwal had been unsuccessful in obtaining an appointment with Johnson for a period of three or four months. Accordingly, in June 1970, Agarwal wrote a memo to Johnson requesting an opportunity to discuss the computerized system for scheduling and cost control that he had been developing. Johnson refused to give him any time, but told him to consult with Scully, the person in charge of McKee’s computer department. Scully had a positive response to Agarwal’s program. In July 1970, Agarwal orally asked Johnson for permission to attend a computer application seminar sponsored by the University of California on August 28, 1970. Johnson responded that the seminar appeared an interesting and appropriate one for Agarwal to attend and that permission would be granted in response to a written request. Agarwal then wrote a detailed request, but was denied permission to attend, without explanation.
The following morning, September 17, 1970, Johnson asked Agarwal to check for errors in the time sheets of some employees. After going through the time sheets and making the necessary corrections, Agarwal returned the time sheets to Johnson. Johnson then told Agarwal to give the time sheets to French. Agarwal did so and was asked by French to take the time sheets around to each of the individual employees to obtain approval of the changes. Agarwal indicated that he had no objection to doing so, but suggested that it would be more efficient to send a secretary around to perform this task because he was in the middle of making the report that he had been assigned. French became outraged and said: “You black nigger, member of an inferior race, get out and do it.” Agarwal exercised great self control, asked French to watch his words, but French proudly repeated the above statement.
Agarwal then finished the cost progress report that he had been assigned and gave it to the department secretary to type so that it could be sent to French. During the lunch hour, he noticed that the secretary, instead of typing his handwritten report, was copying it on the xerox machine. When he inquired as to why she was not typing it, she indicated that French had instructed her to xerox it, and further had instructed her not to tell Agarwal about it. Agarwal then contacted French by telephone and confirmed this information but French told
On Saturday, September 19, Agarwal telephoned Johnson at home, and told him French had been very abusive. Johnson indicated that he had heard something about the matter but gave no indication that he knew Agarwal had been terminated. The following Monday, September 21, Agarwal again talked to Johnson and indicated that he was not yet able to return to work. In response to Agarwal’s question, Johnson replied that he had not yet had an opportunity to talk to French but promised to let Agarwal know as soon as he had done so. On Tuesday, September 22, Agarwal telephoned Regh and made an appointment for the following day. Sometime on September 22, the United States Immigration Service telephoned Regh to inquire about Agarwal in connection with his citizenship papers. After Regh indicated that Agarwal was no longer employed by McKee, the immigration agent asked why and Regh replied that he had been terminated for refusing to work for and report to French and because he was not fit for the job he was to do.
The following morning (Wednesday, Sept. 23), when Agarwal talked to Regh, the latter did not mention the conversation with the immigration officer.
When Agarwal arrived at home, a check from McKee was in the mail. No explanation came with the check. The following day, September 24, Agarwal wrote a letter to Regh asking for an explanation of the check and indicating that he felt depressed because of his mistreatment by Johnson and French, and wanted to use his sick leave to recuperate. At that time, Agarwal did not know that he had been terminated by McKee.
Several days later, Agarwal received a letter from Johnson dated September 25, indicating that he had been terminated for lack of cooperation and lack of job knowledge. This was the first time Agarwal had ever been told that he lacked job knowledge and had failed to be cooperative. The letter was accompanied by a payroll authorization slip indicating the above stated reasons for termination. On September 26, Agarwal wrote to Aufmuth outlining his grievances and requested assistance.
Agarwal unsuccessfully sought employment for a period of 13 months. He sent out about 250 resumes and had about 30 interviews. Two potential employers indicated that McKee had given him a bad recommendation. In October 1971, Agarwal was hired by the City of San Mateo at $3 an hour; after five months, he received a substantial raise but still earned less than he had earned at McKee. Several
Agarwal suffered extreme emotional distress at the time of his termination by McKee in September 1970. At the time, he was in the process of bringing his three children over from India. After they arrived, he could not afford to send his son to the University of California when he had been accepted. As a result of his inability to find other employment for such a long period of time, the family was forced to live in a small apartment and his wife had to go to work and do manual labor.
On September 16, 1971, Agarwal filed the instant complaint against Johnson, French, Regh, Aufmuth and McKee, alleging defamation, infliction of emotional distress, and interference with business relationships. The jury returned a verdict in favor of Agarwal against Johnson, French and McKee for general damages of $16,400; the jury also awarded punitive damages of $1,000 as to Johnson and French, and $45,000 as to McKee.
Johnson, French and McKee first contend that as to the cause of action for defamation, the evidence was insufficient to indicate that the statements concerning Agarwal’s “lack of job knowledge and cooperation” were malicious. The trial court limited the defamation cause of action to this statement and also properly instructed the jury on qualified privilege, as this statement was published only within the McKee organization and to the immigration officer.
The applicable statute, Civil Code section 47, subdivision 3, provides, so far as pertinent: “A privileged publication or broadcast is one made—. ..
“3. In a communication, without malice, to a person interested therein (1) by one who is also interested, or (2) by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or (3) who is requested by the person interested to give the information.”
The malice referred to by the statute is actual malice or malice in fact, that is, a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person. (See Davis v. Hearst,
There is, of course, conflicting evidence in the record. The jury’s verdict can be sustained if the record contains any substantial evidence upon which the jury could make a finding that the communication was malicious. Here, Agarwal’s evidence indicated that there had been no dissatisfaction with, or criticisms of, his job knowledge and cooperation until the last two days of his employment with McKee. French admitted that he had never before terminated an employee who had been in his department for such a short time and so shortly after a new assignment. The termination was ratified by Johnson, Regh and Aufmuth. French’s deposition contradicted his testimony that Agarwal refused to work for him. Johnson, French and others indicated that while there had been problems with both the quality of Agarwal’s work and his personality and ability to work with others from the start, no criticisms or negative comments on his job performance had ever been communicated to him. Agarwal had also not been informed of the “marginal” rating that he had received in the June 1970 evaluation report. Thomas’ memo bore a date after Agarwal’s termination. French, Johnson, Regh and Aufmuth all indicated that, in fact, Agarwal was terminated for insubordination, but that ground was not stated in order to protect his severance benefits. These facts, coupled with Agarwal’s testimony concerning French’s racial epithet which he reported to Regh, and his consistent denials of the charges of poor performance and insubordination, could lead the jury to believe that the statements of lack of job knowledge and lack of cooperation were maliciously motivated for the purpose of terminating Agarwal.
Thus, assuming the jury believed Agarwal’s evidence, we conclude that there was substantial evidence of actual malice that eliminated the privilege (Toney v. State of California,
Johnson, French and McKee next contend that the evidence was insufficient to support the verdict on intentional infliction of emotional distress, and punitive damages against McKee. This contention is primarily based on their view of the evidence, namely, that French never
The applicable law was recently summarized [] in Newby v. Alto Riviera Apartments,
“The modern rule is that there is liability for conduct exceeding all bounds usually tolerated by a decent society, of a nature which is especially calculated to cause, and does cause, mental distress. (See Prosser, Law of Torts (4th ed. 1971) p. 54.) , Ordinarily mere insulting language, without more, does not constitute outrageous conduct. The Restatement view is that liability ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.... There is no occasion for the law to intervene .. . where some one’s feelings are hurt.’ (Rest.2d Torts, § 46, com. d.) Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. (Prosser, Law of Torts, supra, at pp. 57-58; Rest.2d Torts, § 46, corns, e, f; Fletcher v. Western National Life Ins. Co., supra, at p. 397 (insurance agent’s threatened and actual refusals to pay; threatening communication in bad faith to settle nonexistent dispute); Alcorn v. Anbro Engineering, Inc., supra, at p. 496
Agarwal here presented substantial evidence that French’s use of the racial epithet was outrageous and that French acted knowingly and unreasonably with the intention to inflict mental distress and abused his position to humiliate Agarwal and also to recommend Agarwal’s termination for reasons that were not true. The uncontroverted evidence indicated that until the last two days of his employment, Agarwal had not received any criticisms of his work or working relationship with others at McKee. Here, Regh, as personnel manager, did not insist on an apology from French; Johnson refused to provide a reason for the termination to Agarwal. Aufmuth subsequently ratified the termination for the stated reasons that he knew were not true. Even assuming no ratification or authorization by McKee, the rule in this state is that the employer is liable for the wilful misconduct of his employees acting in a managerial capacity (Kuchta v. Allied Builders Corp.,
We turn next to Johnson, French and McKee’s complaints concerning the instructions to the jury on an employer’s liability for the intentional torts of employees and the proper measure of damages for intentional infliction of emotional distress.
The record indicates that after the jury was given the instructions, quoted below,
At the outset, we note that on this issue Little v. Stuyvesant Life Ins. Co. (1977)
Although Little is both clear and persuasive, neither party relies upon its applicability. Their respective arguments focus on whether Johnson, French, and McKee have waived their right to raise the objection on appeal and on the merits of whether McKee is liable for punitive damages under the doctrine of respondeat superior.
Agarwal contends Johnson, French, and McKee are precluded from attacking the instruction by their failure to offer an alternative instruction on the subject. It is settled that a party may not complain on appeal that an instruction correct in law is too general or incomplete unless he had requested an additional or qualifying instruction. (Ornales v. Wigger (1950)
However, it is equally settled, as Johnson, French, and McKee maintain, that they are deemed to have excepted to every instruction given and are therefore not barred by their failure to offer an alternative instruction from asserting error in the instruction as given. (Code Civ. Proc., § 647; Griesel v. Dart Industries, Inc. (1979)
Our task is thus to determine whether the instruction as given contained an incorrect statement of law; only then may Johnson, French, and McKee now be heard to complain of error. Although they vigorously urge the instruction should have been qualified, if it was otherwise correct they have waived their right to such objection by their failure to have offered to the trial judge any qualifying language.
In Carr v. Wm. C. Crowell Co. (1946)
Johnson, French, and McKee assert the instruction was “both erroneous and prejudicial,” “only partially correct,” and “wholly inadequate.” Nowhere, however, do they refute Agarwal’s contention that the instruction was itself a correct statement of the law governing liability. Instead they complain the jury was misled because, the instruction
The applicable law was set forth in Merlo v. Standard Life & Acc. Ins. Co.,
[] [It does not follow, however, that an instruction on vicarious liability must subsume the applicable law on damages. A court is not required to embody all the law that may be gleaned from the instructions read together as a whole in any one instruction (Westover v. City of Los Angeles (1942)
In light of the foregoing we conclude that Johnson, French, and McKee have waived their right to complain that a qualified instruction distinguishing between McKee’s vicarious liability for compensatory and for punitive damages should have been given. Neither have they provided authority that would impose on the court a duty to instruct on its own motion. As noted above, there ordinarily is no duty to instruct in the absence of a specific request by a party; the exception is a complete failure to instruct on material issues and controlling legal principles which may amount to reversible error. (See, e.g., Herbert v. Lankershim (1937)
Although there is some indication of the existence of a duty to instruct sua sponte on the proper measure of damages (see Pepper v. Underwood (1975)
Johnson, French, and McKee next assert the court committed error in its] refusal of a proffered instruction [allegedly] based on Fletcher v. Western National Life [Ins. Co.],
“In addition to general damages, a Plaintiff is also entitled to compensation for any special damages suffered by him resulting from the Defendants’ outrageous or defamatory acts.
“Such special damages in this action includes the Plaintiff’s loss of income from employment and all damage suffered by him in respect to his profession proximately caused by the acts of the Defendant.”
[There is no substance whatever in the contention that the court “erroneously directed the jury to award damages for economic loss resulting from the intentional infliction, in violation of Fletcher. ...” Our reading of Fletcher leads us to conclude the instruction given was not error and, moreover, was explicitly permissible. Although the court in that decision noted the tort of intentional infliction of emotional distress is not chiefly aimed at redressing economic losses, it clearly stated com
Although inartfully articulated, the essence of the challenge to the instruction appears to be that it was erroneous because it misled the jury into awarding general damages for “economic loss not causally related to emotional distress.” The contention, however, disregards the plain language of the instruction that any special damages, including loss of income from employment, must have “resulted] from the Defendants’ outrageous or defamatory acts.” The jury awarded Agarwal general damages in the amount of $16,400. We do not deem the award excessive as compensation for harm suffered from the intentional infliction of emotional distress, which may include humiliation, anxiety, and mental anguish. (Crisci v. Security Ins. Co. (1967)
The certified copy of the federal judgment
[] [Under one aspect of the doctrine of res judicata, “A valid final judgment on the merits in favor of a defendant serves as a complete bar to further litigation on the same cause of action.” (Slather v. Blackwood (1975)
Title VII vests employees with independent federal statutory rights against discriminatory employment practices. It does not supplant state remedies. Accordingly, “Since monetary damages under title VII are limited to recovery of back pay, alternate causes of action under state law may be particularly important where the discriminatee might recover damages other than back pay.” (Fn. omitted.) (Schlei & Grossman, Employment Discrimination Law (1976) p. 678.) Defamation and intentional infliction of emotional distress are specifically recognized as potentially available causes of action under state law. (id. at p. 680.)
In the present case the federal court action proceeded to trial only on the individual and class claims of discrimination under title VII. Our review of the district court’s findings of fact discloses that its attention was primarily directed to McKee’s employment practices and the corresponding impact on racial minorities, and to statistical analyses of the McKee employee population. Although Agarwal’s state court claims for defamation and intentional infliction of emotional distress arose in conjunction with the alleged violation of title VII, the fact remains that in the present action he was awarded damages for harm distinct from employment discrimination. (Cf. Alexander v. Gardner-Denver Co. (1974)
The motion to dismiss based on res judicata is denied. The judgment is [affirmed].
Bird, C. J., Tobriner, J., Manuel, J., and Newman, J., concurred.
Notes
Brackets together, in this manner [], without enclosing material, are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than editor’s added parallel citations) are, unless otherwise indicated, used to denote insertions or additions by this court. (See Chicago Title Ins. Co. v. Great Western Financial Corp. (1968)
This conversation occurred in French’s office and was not overheard by anyone.
This statement also was not overheard by any other person.
When Agarwal arrived home that afternoon, his wife indicated that immigration had called and wanted him to come down and fill out some documents.
The major conflicts in the evidence concern: 1) French’s racial epithet, whether it ever occurred and was mentioned by Agarwal to Regh; 2) whether Agarwal knew or had been informed that he was being terminated on September 17 for insubordination.
The letter specifically mentioned the incidents of September 16 and 17, 1970, and also referred to the September 1969 organization chart, the moving of Agarwal’s office, and Agarwal’s lack of opportunity for overtime.
“Now Arthur G. McKee & Company is a corporation, and as such can act only through its officers and employees. Any act or omission of an officer or an employee within the scope of his employment is in law the act or omission of such corporation.
“It is established that Leonard W. Johnson, John L. Regh, Max French, R.D. Aufmuth and L. P. Argenbright were the agents of Defendant, Arthur McKee & Company. Therefore, any act or omission of such agents was in law the act or omission of Defendant, Arthur McKee & Company.
“It is not necessary that a particular act or failure to act be expressly authorized by the principal to bring it within the scope of the agent’s authority or employment. Such
“Conduct for the benefit of the principal which is incidental to, customarily connected with or reasonably necessary for the performance of an authorized act is within the scope of the agent’s authority or employment.”
[The assertion that the decision in Ebaugh v. Rabkin (1972)
[That Bradford is a criminal case does not foreclose its applicability. It has been observed that the duty to instruct sua sponte in civil cases is less demanding than that imposed in criminal cases. (See 4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 195, p. 3015; Robinson, A Proposal for Limiting the Duty of the Trial Judge to Instruct the Jury Sua Sponte (1974) 11 San Diego L. Rev. 325, 348.)]
“If proved by a preponderance of the evidence and you find that defendants or any of them have inflicted intentional emotional distress on plaintiff, plaintiff is entitled to recover damage only for the emotional distress and not economic loss resulting therefrom unless such loss actually results from the intentionally caused emotional distress.”
[In light of our conclusion that the claim of prejudicially erroneous instructions is without merit, we need not consider Agarwal’s contention as to the standard of review we should apply.]
In part, the motion takes advantage of the federal rule under which a judgment once rendered is final for purposes of res judicata until reversed on appeal, modified or set aside in the court of rendition []. [Calhoun v. Franchise Tax Bd. (1978)
Concurrence Opinion
I concur in the judgment, under the compulsion of Egan v. Mutual of Omaha Ins. Co. (1979)
Clark, J., concurred.