Hodges v. Gibson Products Co.

HODGES, Plaintiff F. Shauna Appellee, COMPANY, dba PRODUCTS

GIBSON Center, a Utah cor Discount

Gibson's Crosgrove,

poration, an indi and Chad

vidual, Appellants. Defendants

No. 20929.

Supreme Court of Utah.

April receipts, daily report,

ed the filled out the deposit slip. and made out a bank When completed, her tasks were she went home. Company policy called for deposit receipts by p.m. day. However, p.m. Murray, around Glen manager, daily assistant store looked at the Alcabes, Bayle, F. Andrea C. Salt Robert report prepared by and noticed City, Lake for Gibson Products Co. receipts that it showed no for cash Crosgrove, Karrenberg, Chad Thomas R. No. 4. He reg- checked to make sure that City, Hodges. Lake Salt for Shauna F. ister No. 4 previous day had been used the Crosgrove discrepancy. and told the Af- STEWART, Justice: being ter missing money, informed of the Company and Gibson Products Chad store, company officials came to the and Crosgrove, manager of Gibson’s West Val- Crosgrove Hodges called her and told ley County, appeal Lake store Salt Crosgrove return to store. stated judgment holding them liable for malicious room, when he first went to the secure he employee, of a former Gibson tape register found from 4 in No. Hodges. appeals Shauna F. Gibson also Later, tapes, the wastebasket. additional judgment holding Hodges it liable to slips register void from No. and torn employ- for termination of her deposit slips Hodges’ personal for Mrs. ment. garbage bag. bank account were found in a missing register checks from No. I. FACTS bag register were found in the for No. Crosgrove Because Gibson and attack empty register bag and the for No. 4 was sufficiency evidence, rely on found at the ini- service desk. the facts most favorable to the verdict. tially upon returning testified that to the manager, Crosgrove As store closed out room, secure he found some checks from registers the cash every the end of busi- register bag No. 4 in No. 2. Unless he had placed checks, cash, day ness and and time, however, laboriously had sufficient register tapes cash register from each register tape by check the for No. 2 line separate money bags marked with the bag line to determine which checks in No. 2 register they number of the from which register, had not been taken at that he closed, were taken. After the store Cros- previous knowledge must have had about grove placed bags money in a safe near misplacement of the checks. Cros- service desk the first floor for over- testified, grove also somewhat inconsistent- night keeping, morning, and the next he ly, identify that he could not which checks bags retrieved the from the safe and took register came from 4No. until after a upstairs them to a secure room where corporate performed accountant an audit. Hodges, part-time bookkeeper, counted The audit revealed that the checks that receipts bag from each and checked the bag register should have been reg- sum the amount shown on the put bag register No. had been tape register. ister for each cash She then No. 2 and an equaled amount cash that receipts reg- recorded the total from each those checks had been withdrawn. ister, grand reg- entered the total from all daily form, report prepared isters on a Hodges When returned to the store on deposit Crosgrove. bank be made September she was confronted Cros- grove charged stealing with the mon- morning September On the ey. receiving room, bag She denied for the Hodges went secure where receipts register from No. 4 and prior day's receipts she obtained the steadfast- which placed ly stealing money. money bags togeth- denied She been insisted then, thereafter, er the cash tapes. consistently She count- that she resign on the reg- permitted he was condition sack had not received Crosgrove. 14, 1982, repay ister No. from that he Gibson. On March Hodges’ scheduled trial seven weeks before days later, management Gibson Several date, Crosgrove resigned. meeting and another called Once explanation. again asked for an prose- officials did not inform the Gibson explained not taken again she that she had cuting attorney Hodges’ case of Cros- money. Notwithstanding protesta- her grove’s until the eve of the sched- thefts innocence, stated Gibson officials tion trial, uled almost two months after they resign her rather would allow company Crosgrove’s became aware missing paid fired if she Gibson the than be Crosgrove’s light thefts. admitted asserting money. Again her amount of thefts fact he was and the Gibson’s innocence, resign. she declined against Hodges, prosecu- chief witness Sep- suspended her work on from immediately charge tor dismissed theft 9, 1981, 8, 1981, September tember against Hodges. eight May after auditor, Harris, Crosgrove, Ron Gibson’s suspension, months on after the formal Cornett, manag- general and Bob Gibson’s charges against dismissal of the criminal er, police to and made an accusa- went her, Hodges fired for Gibson the stated Although against Hodges. of theft tion proper reason she “failed to that follow money Crosgrove had had access to all procedures.” receipts during bags containing night morning of September Crosgrove and both and Hodges sued Gibson given September they were to of before prosecution and intentional for malicious Hodges, apparently and other was distress and Gibson infliction of emotional to person to have had such access wrongful termination. Gibson alone for possi- bags, investigate not Gibson did jury for conversion. The counterclaimed might bility Crosgrove have stolen the mali- Crosgrove and liable for found Gibson finger pointed and of instead prosecution, liable inten- cious but not for had Hodges. at Because Gibson not blame distress, and tional infliction emotional Crosgrove time at that discovered that was wrongful for termination. Gibson liable stealing money and merchan- in fact both Hodges apparently found that jury The not, Gibson, Crosgrove from did dise psychological trauma significant suffered course, police inform the or other Gibson and initiation of from the accusation stealing had been substan- officials he to charge, unable find criminal period during a tial sums from Gibson result, a and suffered a loss employment as September month of which included the during suspension her and after wages arrested, handcuffed, Hodges was 1981. The discharge. jury returned a verdict her Following a charged pre- theft. and with $70,000 compensatory against Gibson liminary hearing, over a she bound $7,000 damages damages punitive and May 12, scheduled for trial $10,000 Crosgrove a and verdict held, Hodges’ Before trial could be a $1,000 and compensatory damages company audit discovered that Gibson Hodges damages. jury found punitive $9,000 Crosgrove had embezzled some con- counterclaim for not liable Gibson’s during goods period and that includ- cash version. Hodges. ed the loss attributed Cros- Crosgrove appeal, and On this Gibson scheme of utilized a grove’s embezzlement the evidence was insufficient contend that deposits “lagging” known as method bank pros- of a malicious support the elements receipts, he retained a cash day’s which addition, con- action. Gibson ecution deposit, making refrained from and bank erro- jury instructions were tends that deposit up made out subse- then respect prose- the malicious neous with receipts. quent charge Gibson not did claim, termination theft, cution his Crosgrove despite confes- taken; claim, rather, damages. large sion and amount people that reasonable would not conclude II. MALICIOUS PROSECUTION supports the evidence the verdict. court instructed the The trial Heppner, v. 777 P.2d Cottam proving the the burden of fol (Utah 1989); Corp., 700 v. BMG Scharf the tort of mali lowing four elements of (Utah 1985). (1) prosecution: defendants initiated cious pro procured the initiation of emphasize profes- that it is counsel’s We (2) plaintiff;1 ceedings against an innocent duty analyze the evidence with sional probable did not have cause to defendants provide every record citations for care (3) prosecution; defendants ini initiate the proposition. It is asserted factual primarily pur for a proceedings tiated the appellate duty of an court a civil case to bringing an pose other than that of offend canvass the record on its own to determine (4) proceedings justice; er to termi sufficiency the evidence. Gibson nated in favor of the accused. See Kenne reargue basically the evi- 497, 500-01, P. dy Burbidge, 54 Utah they presenting dence as if were (Utah 1919); Progres Callioux written, argument. arguments their As Ins. Ct. sive persuasive are reasonable and have effect. App.1987); Torts point appellate proce- From the of view of Keeton, (1977); see also W. Prosser § dure, however, they ignore the rules de- and Keeton on the Law Torts signed give stability verdicts. (5th ed. sufficiency analyzing Before deciding Gibson’s and Cros- the evidence on the various issues raised grove’s that the evidence was contentions Crosgrove, we shall first find insufficient for the principles agency address of law because claims, them on the malicious they provide in the context which the suffi the evaluate the evi we defer to and ciency of the evidence determination must light in the verdict. dence favorable to recently made as to Gibson. We have accept evidentiary We inferences that general principles governing reviewed the support tend to the verdict rather than liability employer employ of an for an contrary support appel inferences that acts, negligent ee’s tortious for and both facts, might version of the even if we lants’ intentional acts. See Birkner v. Salt Lake judged differently have those inferences (Utah 1989); County, 771 P.2d 1053 see deciding in the had we been the matter Co., Barney v. Tea 104 Utah also Jewel instance, appellate an first and not as (1943). 139 P.2d held Birkner Dalton, Corp. court. See Cambelt Int’l employer that an is liable for the torts of (Utah 1987). 745 P.2d When the employees committed its that are within conflict, testimony in of witnesses is scope employment, of even if the tor- accept testimony supports which tious acts were intentional and not done verdict, inherently im jury’s unless it is solely to further the interests of the em plausible, ignore the evidence which ployer. in The law established Birkner is verdict, support does not even if we employer vicariously that an liable for an convincing. might think it more See Cott employee’s employ intentional tort if the Co., rell v. Tea 5 Utah 2d Grand Union performing ee’s in the acts was 187, 194, (1956). For the wholly part in verdict, either or to further the appellants to overturn the business, therefore, briefs, employer’s employee even if the they in their must set out references, misguided respect. in See also with record all the evidence verdict, Keeton, including and Keeton supports all valid W. Prosser effect, (5th inferences to that and demonstrate Law Torts at 505 ed. § of ond) (1977). authority § 1. There is that the innocence of the Torts 657 comment b Because raised, plaintiff should be an affirmative defense rather this issue has not been we do not consid- appeal. plaintiff’s than an element of the Keeton, claim. See W. er it on If there were error in the defendants, instruction, Hodges, Prosser and Keeton on the Law Torts rather than (5th (Sec- 1984); party at 885 ed. Restatement was the harmed. § liability usually great importance. an This is Thus, there is no vicarious entirely employee negligence acts true in cases of employer particularly when which, the em- personal unrelated in like motives torts deceit mali- 506; see also id. ployer’s upon interests. See prosecution, are based cious Ward & Montgomery Combes v. improp- fact that the defendant has acted Utah erly knowledge in which he view has. liability rule of vicarious ap torts stated Birkner also Thus, intentional knowledge which Gibson’s ser- agent or an is autho plies when a servant initiating prose- had in the malicious vants legal initiate a action. The Re rized to against Hodges the re- cution action (1958) Agency statement § the initiation of the action sponsibility for precise on the issue: focuses law, imputed, as a matter of itself Gibson, a servant or if principal who authorizes servants acted within Gibson’s agent scope authority institute or conduct such the of their and were moti- legal proceedings judgment carry are his vated either whole or out protection lawful and desirable purposes. Gibson’s subject principal’s interests is to lia- officials, Crosgrove and other Gibson bility person proceed- to a whom Harris, clearly Birch Ron such as Ron ings adapted accomplish reasonably authority delegated acted within their tortiously principal’s purposes are indeed, bringing charges Hodges; agent. brought express Crosgrove acted under directions Thus, applies law stated Birkner corporate officials and also from employee legal proceeding files a when an if his authority manager. Even au- agent if “in even the servant or acts manager thority as a were sufficient part” carry purposes out prosecu- him to initiate a criminal authorize principal. Agen- tion, he it is clear that in this case acted cy 253 comment a. under approval the direction Furthermore, knowledge personal higher officials. materia] has liability that a servant supporting to the evidence We turn now acting in matter as to which the

when a of specific elements of the cause action the empowered the act is master has servant to in light of the malicious for 272 imputed also to the master.2 Section principles particular- and more above (Second) Agency of the Restatement of principles as below agency ized stated capsulizes the rule: specific of the upon bear elements which subject to the In accordance and with of cause action. of Topic, liability rules the stated this knowledge the principal

a affected Proceedings A. Initiation Criminal of concerning matter as to agent of an a Against Who is Innocent One power to which he acts within his bind duty it is principal upon the which his Harris, company Crosgrove, Ron a give principal information. receipts cash and who checked the auditor knowledge money missing, imputing The rule a servant’s determined Cornett, manager particular importance general of the master is of Bob a negligence, Gibson, Valley malicious on to the West Police tort cases based went c of reported missing money, and deceit. Comment prosecution, Department, part: Hodges. 272 clearly states These three and accused § authority. of scope within the their liability, the knowl- acted determining In tort undisputed. point have This edge or should the actor has which (1985). Imputed knowledge is relevant 2126 § made between 2. is sometimes distinction corporation's concept. corporation” and a We need not make that “tort imputed the liability to the former of respon- purposes opinion. under doctrine of this distinction for Corporations superior. 18B Am.Jur.2d deat See 158 innocence, probable cause determined as of Hodges’ jury ex- based

As to pressly special verdict time the action was filed. Restate- found See funds, and Hodges did not convert Gibson 662 comment e ment Torts § finding. jury’s supports the evidence (1977).3 The accuser must have sufficient First, Hodges testified that she was inno- adequate information on an investi- based cent, and the was entitled to believe gation justify the conclusion that there her and refuse to credit circumstantial pro- probable cause to initiate a criminal contrary. testimony Her evidence to the ceeding. See Potter v. Utah Driv-Ur-Self evidence, by itself was sufficient but there Inc., 133, 135, System, 11 2d Utah points was much more evidence 714, (1960). have a The accuser must guilty party. He admit- Crosgrove as the believing the accusa- reasonable basis $9,000 stealing approximately ted to subjectively tion and must also believe the money and merchandise from Gibson dur- accusation to be true. Sweatman v. ing period that included the critical month Linton, 208, 218, 241 P. 66 Utah September and the scheme he em- (1925); Canning, McKenzie v. Utah ployed not incon- to steal (1913); 530-31, 1172-73 P. sistent the scheme used in the theft 480, 491, Ascheim, Wright 5 Utah 17 P. charged against Hodges. j Comment Furthermore, Crosgrove was the provides Torts of definition of actually person other than who probable following cause: possession register receipts cash summary, may said that the it possession all question. He had probable defendant has cause when register bags night September position would a reasonable man his morning September he and the when believe, and does in fact the defendant alone with them would have been before believe, that he has sufficient informa- Also, they Hodges. were turned over applica- tion as to both the facts and the empty bag register No. was found justify initiating him in ble law at the service desk where would in- proceeding without further bags. have taken exclusive control of the vestigation or verification. Thus, clearly opportunity he had an to take bag place component prob- No. 4 Because an essential the cash from the bag person responsible checks therefrom in No. addi- cause is that able tion, concerning the con- initiating his statements personally the action must garbage tapes tents of the can where guilty, the accused to be believe be- Hodges’ de- from No. bank cause the could have found from Cros- posit slip were found were inconsistent grove’s own admission that he did not be- that he could have led the to believe theft, Hodges guilty lieve Perhaps telling, most Hodges. framed reasonably could have found that Cros- privately expressed Crosgrove himself grove probable lacked cause. Restatement guilty. Hodges doubt that was (Second) pro- comment c Torts § of private prosecutor vides: “A can not have Initi- B. Absence Probable Cause for probable initiating pro- for cause ating a Prosecution ceedings against another if he does not guilty that the accused was of the leading to the initi believe An accusation charged against him.” prosecution must be crime ation of a criminal (a) person that the whom he accuses has § Torts 3. The Restatement manner, (1977) three-part particular deter- provides standard for acted or failed to act in a a probable mining has cause whether a defendant prosecu- (b) initiating an action for malicious acts or those omissions constitute charges against tion: the offense that he the ac- cused, and pro- or continues criminal One who initiates ceedings against (c) sufficiently that he is informed as to the probable cause another has justify initiating reasonably the doing correctly law and facts to him in or or so if he continuing prosecution. the believes subject liability A to for the to find that master is jury was also entitled legal tortious institution or conduct of cause. probable did not Cros- Gibson have acting servant within proceedings by a during embezzling funds grove admitted scope employment. in ques- here period that included the date tion; possession only people two had actual princi- makes clear that these Section 253 it had been re- money the stolen after apply ples special force in malicious Septem- from the moved cash prosecution cases: i.e., Hodges. Crosgrove and Cros- ber principal authorizes a servant who stolen grove possession had other agent to institute or conduct September morning night of 3 and legal proceedings judg- such as in his 4; manager September store assistant ment for the are lawful desirable brought Murray, Crosgrove, not to Glen principal’s protection of the interests receipts reg- fact from light person that the subject liability to a to missing; Crosgrove 4 were proceedings reasonably adapted ister No. whom to embezzling accomplish principal’s scheme that are employed purposes was by the tortiously brought agent. not unlike method used take $580. a, however, principal Under comment “The is, agent if conduct of the is liable Furthermore, jury could have found least, carry part purposes out the strongly implicating that the evidence most Birkner, 771 principal.” See also slips in Hodges, deposit gar- the torn P.2d at 1057. room, bage can in the was either secure Although may acted Crosgrove have placed placed innocently there or was there partly suspicion himself to deflect from frame-up. by Crosgrove as At scope Hodges, also acted within the he least, was entitled find acting to authority by his further Gibson’s investigation inadequate was Gibson’s prior con- interest. not provide probable insufficient to a basis for sent, direction, manage- if from not Gibson justify failed to cause therefore such proceedings, but he ment to initiate the felony initiating prose- action as serious by offi- accompanied was also two Gibson cution. See Cottrell v. Grand Union Tea department police to make cers 2d 5 Utah clearly purpose was accusations. Gibson’s probable pre- The issue of cause is accusation, as evidenced served eminently jury question, and the attempt leverage to use Gibson’s clearly support had sufficient evidence her prosecution against to induce the conclusion that did have Gibson money. strategy pay missing That cause. probable the accusation continued after recited, just In addition to the facts Cros- Hodges made and even after Cros- was knowledge imputed to grove’s theft, or at least grove’s termination law, a matter of and Gibson liable Thus, the have so found. could conduct, Crosgrove’s under the black Crosgrove did could found that have agency principles explained above. letter own and was solely not act his interest Agency See Restatement to find he acted to legitimately entitled c; also Birkner comment see § further interest. Sweatman Gibson’s Cf. 1053, 771 P.2d 1056 County, Lake 208, (1925). v. Salt Linton, 241 P. 309 v. 66 Utah was argues its conduct because, Furthermore, prose relying deals agency law even vindicated charge initiating liability judgment the vicarious cutor’s specifically with more valid af against Hodges, it established a acts of a servant in master law, rea firmative defense. Under Utah gener- cases than malicious the advice of counsel sonable reliance on principles stated above. Section 246 al (Second) defense when the issue Agency an affirmative the Restatement ele- particular conduct meets the whether states: 160 unreasonable, especially light of the evi-

ments of some crime. See Perkins v. Ste- 436, 437, phens, defendants/appellants 28 Utah 2d 503 dence that relied on (1972); prosecutor evaluating Potter v. Utah the advice of the Driv-Ur-Self Inc., 133, 135, 355 P.2d System, Utah 2d sufficiency of the evidence.” (1960); v. Union Cottrell Grand Instruction No. 34 followed this Court’s 187, 189, 2d 299 P.2d Tea 5 Utah 193-94, Cottrell, language in 5 Utah 2d at Linton, (1956); 66 Utah Sweatman Although agree that 299 P.2d at 626.4 we 218, 241 P. at at 312. instruction, the first sentence of the which rely may justifiably An accuser “entirely stated that to be fa- Gibson had the advice of counsel as to the existence miliar with the facts and circumstances probable only cause if the advice is surrounding allegations,” inappro- was sought good faith and after a full disclo absolute, priately that sentence was mod- knowledge accuser’s sure to counsel of the required ified the second sentence which on a reasonable in and information based sufficiently that Gibson “be informed Potter, vestigation by accuser. facts_” The instruction was cer- 134-35, 716-17; Utah 2d at 355 P.2d ideal, tainly entirety, but read its Jacobson, 2d Utah Wendelboe it do not think reversible error. (1960); Sweatman, 662(c) (Sec- Section of the Restatement 2i3, 312; 241 P. at 66 Utah at see also ond) Torts states that the defendant Torts § correctly reasonably must or believe that (1977). Reliance on advice of counsel sufficiently he or she is informed as to the prosecuting includes reliance on a attor initiating justify law and the facts to ney’s prima conclusion that a facie case continuing prosecution. rea- exists. sonably could have believed Gibson’s supports jury’s rejec- The evidence investigation inadequate because it tion of Gibson’s reasonable reliance de- investigate possibility failed to fense. The entitled to believe Crosgrove, person who had a adequate that Gibson failed to make an money, might opportunity clear to take the investigation and also failed to a full make guilty person. Because have been the presentation prosecutor the facts Crosgrove money bags had access to the charged that it knew and was with know- before received them from Cros- ing agency under law. grove, subjected he should have been Gibson contends that instruction scrutiny, especially some in view of his high No. 34 set a standard that was too suspicious inconsistent and statements respect duty investigate with to its tapes deposit slip about the torn found its reliance on That counsel. instruction garbage reg- the checks from stated: bag ister No. 4 found in the agents The officers and of Gibson 2.No. entirely Products should have Co. been

familiar facts and circumstances Improper Purpose C. surrounding allegations they made to Valley concerning the West Police plaintiff prove must also that the crim- They plaintiff. required were to be suf- proceedings a defendant initiates inal must ficiently informed facts initiate primarily have been initiated for a proceedings the criminal without fur- bring justice. other than to an offender to investigation. ther See Restatement Torts argument Gibson’s the instruction is Gibson and contend that “unsupported by reasonably case law and is totallv could not have found language 4. The Court’s in Cottrell was not in- of the result reached in the case. As shown case, language using language appellate tended to serve as an instruction. The this from such an opinion opinion may risky of the Court’s relied the on for instruc- for an instruction busi- reasoning support tion was of the Court's ness. Torts, 668 com purpose than Restatement they that acted of justice. g, to states: who initiates the bringing an offender ment that of “[O]ne proceedings pay force to the accused to jury the could respect Crosgrove, to With to turn over to money or land or chattels one from the evidence that have concluded accuser, proper pur not a the does act for up Crosgrove’s purposes was to cover of pose. although money This true the is is suspicion to and deflect his own theft lawfully to the owed accuser....”5 Although was Hodges. that individual, Crosgrove as an attributable to jury entitled to find that The Gibson Gibson, evi- not there was other prosecution to the criminal improperly used the independently justified that dence her to Hodges pressure pay to Gib- against improper an finding that Gibson had jury’s money. missing son the Crosgrove’s from ulterior purpose, apart

motive. in Favor Accused D. Termination of prose- criminal the threat of Gibson used Finally, plaintiff prove a that the must Hodges pay leverage as to force to cution in fa- proceedings were terminated criminal missing money. the Gibson offi- the favorable termi- of accused. A vor not Hodges told that Gibson would cial occurs, prosecution in- nation criminal pay missing the her if she would prosecute alia, proceedings the the ter when Hodges pay, to Gib- When refused $580. are “the formal aban- accused dismissed presented police son its accusation proceedings by public the donment later, day day. Eight next months the the prosecutor....” of prosecutor the criminal after the dismissed (1977). 659(c) Torts § against Hodges six weeks after case argue that the trial court Defendants to Crosgrove’s light, defalcations came Gib- instructing the that “the crim- erred following proper fired her “for not son plaintiff action was dis- inal procedures.” Not did Gibson use it was by the court and that there- missed a threat of criminal an extor- favorably terminated on behalf of fore fashion, had tionate but even after Gibson essence, in- the instruction plaintiff." Crosgrove might have clear notice that well court ruled formed it left responsible person, still been of issue. The trial a matter law embarrassment, Hodges to live did Even if the issue were court not err. dread, expense criminal trial for fact, dispute no there is whatsoever one lengthy time. against Hodges was dis- the action only proper purpose for initiat prosecuting The motion missed ing proceedings bring is to an of facts, only criminal attorney. On one conclu- these justice. policy to The declared fender permissible applicable under the sion keep is imperative this state is that it law. “inviolate.” Haas v. Em

criminal law See mett, 2d Utah III. DAMAGES (1969). proceedings to To use criminal Liability A. Direct and Vicarious unjustifiable, pay money is force another (1) one lawfully if assert even the accused Defendants is so id.; al- was flawed because it accuser. instructions owes special damages award Utah lowed Union Tea Cottrell Grand 187, 193, pleaded in the excess of the dollar amount 2d especially imply employer process, and that is true that an resort civil 5. We do not mean legitimate factually issue as may present employee who when there is some to wheth- possession returning possession guilty the one has lawful with the choice of sto- er theft being payment property subject pros- when a debt the issue. to a criminal or len or law, Clearly, use, employer, use or threat of its or someone else in ecution. But an position, inappropriate in cases. In the in- must on the issue of such similar be correct case, jury expressly guilt. Ordinarily, found that one seeks recover stant who money. property improperly must did not take Gibson’s obtained detained 162 (2)

complaint, proved, did not though that evidence even than more the amount awarded, (3) support damages alleged by that complaint. See Utah punitive damages 54(c). the issue of should not damages R.Civ.P. The amount of jury. have been submitted to the justified awarded by the evidence. complaint alleged “plaintiff The that has Special damages particu are injured damages been and suffered includ- type damages lar which are a natural to, ing, wages, loss medi- but not limited consequence injury caused but are expenses, distress, cal severe emotional type damages necessarily not the anguish requiring professional and mental flow from the harmful act. See Cohn suffering therapy, pain and further 306, Co., (Utah Penney J.C. 537 P.2d $75,000.00_” least in the amount of 1975). claiming special damages One must complaint prayed judgment The as plead type damage each specifically so follows: opposing party adequate that the has an $75,000.00 1. In the and such sum opportunity against plain defend plaintiff by other sum shall as establish tiffs claims. trial; proof at time of complaint The sought damages for damages Exemplary at least wages, expenses, lost medical and severe $100,000.00; amount of allegations emotional distress. Those satis herein, 3. For costs of suit incurred requirement 9(g) fied the of Rule including fees; attorneys reasonable Procedure, special Utah Rules of Civil 4. For such other and further relief damages must specifically pleaded. be just. court deems However, require the law does not that the The trial court instructed the in in- special damages exact dollar amount of struction No. 46: specifically pleaded. See Jones United plaintiff alleges The reason of Improvement Corp., F.Supp. Gas her injuries, claimed for which claims she (E.D.Pa.1974); 423 n. United Ins. Co. of liable, the defendants are she has sus- Inc., Rudy, America v. 42 F.R.D. B.W. general damages tained in the sum of (E.D.Pa.1967); Johnston, Cox v. $200,000.00 distress, for severe emotional (Colo.Ct.App.1971); 484 P.2d see anguish pain mental suffering, Co., Penney also Cohn v. J. C. 537 P.2d 306 $26,- and has lost an additional sum of 1975); (Utah Miller, Wright 5 C. A.& Fed 515.00, on account of the costs of the eral Practice and Procedure therapy undergone that she has as a prosecution, result of the malicious loss Finally, defendants contend that wages, legal and cost of fees for de- allowing the trial court erred in fense of the proceeding. punitive damages. argument award Their evidence, allegations These are not but initiating prosecution against is that in merely plaintiffs are the extent of the Hodges, prompted by defendants were claims, and must not be considered belief reasonable had commit you as evidence in the case. ted a theft and that a reasonable belief $80,000 awarded a total of in necessarily negates required state of $70,000 compensatory damages, against necessary support mind puni a claim for $10,000 against Crosgrove. Gibson and It damages. tive Rogers, See Johnson v. $8,000 punitive damages, also awarded (Utah 1988); Atkin Wright & $7,000 $1,000 Gibson and Co., Miles v. Mountain States Tel. & Tel. Crosgrove. (Utah 1985); 709 P.2d Synergetics Instruction No. 46 er Ranching was not v. Marathon permitted roneous because it 1112-13 If defendants were general award more than the guilty only simple negligence, amount of inadvert damages alleged ence, mistake, complaint. Plain judgment, or error of they general damages tiff was entitled would be correct. See Behrens v. Raleigh

163 (Utah (b) Inc., 1179, 1186 agent princi- the unfit and the P.2d was Hosp., Hills 675 managerial agent was 1988). pal or a reckless him, employing retaining or or no evi- argue Defendants that there is (c) agent employed the was in a man- employees acted “will- dence that Gibson’s was in the agerial capacity acting and maliciously” presenting evidence fully or or scope employment, Hodges’ prosecutor terminating or of Crosgrove (d) even if employment managerial agent and that principal the or against Hodges to prosecution approved initiated or principal of the ratified misdeeds, his own malice cannot cover his act. purposes of im- imputed Gibson for be added.) (Emphasis Accord Restatement against punitive damages Gibson. posing 217C Section Agency § of however, That, not the law.6 909(c), (Second) Torts, Restatement and of 2170(c), (Second) Agen- Restatement puni may be liable for master rule that a or cy, accepted state the master damages under certain conditions. See tive principal punitive liable for other can be P.2d 776-78 763 Rogers,

Johnson damages based on the conduct of a mana- (Utah Coopera Terry v. Zions gerial agent. punitive damage award Institution, P.2d 314 tive 605 Mercantile against Gibson must therefore sus- 1979), (Utah grounds, overruled on other tained, prosecu- at least to the malicious Inc., Companies, Skaggs McFarland v. claim, could have tion because (Utah 1984), 298 this held Court Crosgrove acted with actual found that, respondeat su under the doctrine did malice toward so his punitive liable perior, employer an scope managerial capacity and within the damages employee’s a low-level based on employment. of his officer’s) (i.e., security and mali tortious punitive ruling this case dam Our impris acts of and false cious false arrest only by prior our ages supported own onment. cases, also courts but a number above, entitled As discussed similar this case. in factual contexts knowingly find that acted See, Stores, Barrack, Inc. v. e.g., Safeway maliciously Hodges. toward Because Cros- (1956); 210 Md. A.2d 457 Moore v. grove manager was a and acted his Stores, Inc., (Okla.Ct. P.2d 1236 Target liable, managerial capacity, Gibson also Annotation, App.1977). generally through Crosgrove, punitive damages. Liability Punitive Dam Principal’s Rogers, P.2d Johnson Imprison Arrest or ages Because False (Utah 1988), in most on the we relied Prosecution, ment, By Malicious or 909(b) Torts, §§ (1979 A.L.R.3d Agent Employee, or (e) puni- availability to sustain the Supp.1990). & damages on the employer tive an liability. of vicarious Section basis Damage Wrongful For Liability B. For states: Discharge damages properly can be award- Punitive principal master or other ed awarding puni- Because the verdict if, agent an but because of act damages make did not clear whether tive punitive damages were based on ¾ (a)the agent claim or on the principal managerial or a malicious claim, the issue doing and the manner termination authorized the act, punitive damage award arises whether others, plaintiff probability Security Utah v. J.B.J. Feed lives of In First Bank of misconduct, Inc., 1982), we future recurrence of such yards, 598-99 relationship parties, relative fact finder between identified number of factors the defendant, awarding punitive damages, circum of the the facts and must consider in wealth misconduct, misconduct, i.e., alleged surrounding the nature of the stances damages awarded. of the amount of actual extent effect misconduct tions, why portions relevant clarity, explain and other For may stand. record. needs to be addressed. this issue (Citations omitted.) opinion, of this In the next section that jury verdict Gibson hold that of the The nature and amounts discharge a wrongful based on liable strongly damages by jury indi awarded employment- policy exception to the public damages only jury cate that the awarded be affirmed. How- at-will doctrine should The prosecution on the malicious claim. ever, the issue whether we do not address Crosgrove damages against awarded exception to the at-will public policy only on the malicious to have been awarded contract, in tort or because doctrine sounds compensatory The dam prosecution claim. not raised in either the trial that issue was ages against Crosgrove were assessed A decision on that court or this Court. $10,000. jury also the amount of presentation proper issue should await $1,000 punitive damages, or ten awarded Nevertheless, the answer to the issue. damages, percent compensatory course, would, ordinarily question that Crosgrove. Significantly, jury against damages may punitive determine whether $7,000 against punitive damages awarded employment in an termination be awarded Gibson, percent of which amounted to ten exception to the at-will on an case based $70,000 compensatory damages as specify jury did not doctrine. Because against We think that the sessed Gibson. damages punitive on whether it awarded reasonably can be drawn from conclusion prosecution the malicious claim the basis of proportionality compen the obvious claim, we wrongful termination damage satory punitive that awards Gibson, must, assume for out of fairness against both those awards of this case that the on the same claim were based discharge claim sounds contract and that relief, i.e., prosecution the malicious damages may punitive not be awarded claim, only which was the claim Therefore, analyze we now that claim. Furthermore, Crosgrove. real damage punitive issue whether the award malice that could be found related to may notwithstanding our as- be sustained claim, malicious sumption. Thus, rea wrongful discharge claim. it is punitive that the dam sonable to conclude general principles concern Several ages awarded on the malicious were sustainability give ing the verdicts prosecution claim. First, “every guidance. we exercise rea authority another line of that There is validity in favor of the presumption sonable requires sustaining punitive damage general Leigh verdict.” Furniture & Leigh Gibson. In Furni- award Isom, 657 P.2d 301 Carpet v. Co. Isom, Carpet ture & Co. v. 657 (Utah pre give To effect to (Utah 1982), we held: evidence, pleadings, sumption, we look [Wjhere more than one cause of action instructions, forms, and the manner verdict has submitted to a and where been the case was tried to determine in which of action was error- one of those causes possible error the verdict is whether evidence, free, supported by substantial Associates, In Inc. reversible. Cook appropriate general basis for the (Utah Warnick, 1983), verdict, verdict judgment will we stated: affirmed, though even the evidence verdicts are to be construed General was insufficient to sustain verdict sustaining the verdict and with a view to of the other causes of action sub- one effectuating the intention of the if mitted. intention is not possible. Where itself, (Citations omitted.) Rodgers v. clearly apparent from the verdict See also Cal.App.3d may Kemper the evi- inferences be drawn from Constr. dence, Cal.Rptr. pleadings, instruc- Ltd., v. Fashion Centre sufficiency of Berube not the Here the issue is 1989), justices of three in 771 P.2d 1033 claims as of two evidence on one the at-will agreed this Court dictum Furniture, the assumed rather Leigh but from an that arises employment doctrine damages for punitive inappropriateness of is lim difference, employment contract indefinite-term claims. That one of two case, public policy exception. See ited is not the facts of this least on Durham, J., joined (opinion prosecu- P.2d at malicious Because the distinction. J.); Stewart, (opinion P.2d at 1051 proper under claim was submitted tion Ford, Zimmerman, J.). Caldwell supported by sub- of damage instructions Utah, Inc., 777 P.2d 483 evidence, Bacon & Davis the entire and because stantial (Utah 1989), of this Court Gibson, four members damages against both award of pub principles of that at least some stated punitive, is sustainable compensatory and exercise policy limit the unbridled alone, re- lic Leigh Furniture that claim discharge an in the employer discretion damage awards. affirm the quires that we opinion employee. The lead

indefinite-term “public recognized that the term in Berube TERMINATION IV. WRONGFUL in need vague and elastic term policy” is a in our decision was tried before This case argua an provide not to of limitation so as Centre, Ltd., Fashion Berube v. every time an indefi lawsuit basis for a ble 1989), limited (Utah signaled a which discharged. employee is Cald nite-term employment doc departure from the at-will public policy held that the squarely well in Bihlmaier was restated trine that broadly read so exception could not be (Utah 1979), and Carson, 603 P.2d “good requirement of cause” impose a re years has in recent been sometimes every indefinite-term discharge of for the The doctrine. ferred to as the Bihlmaier at 485 & 485 n. 777 P.2d employee. See recognized a cause presciently trial court good for the cause requirement discharge as an ex wrongful of action for provides employ- employee discharge of an that had not ception to the at-will doctrine many collective bar- security under In ment recognized in Utah. been theretofore employment agreements and gaining No. 43 stated: struction all, many, if not civil provisions of security quit employ- her free to Plaintiff was Although the need systems. service time, any at defendant ment with employment that kind of justification plaintiff discharge was free to defendant accepted under such generally security is However, if cause. any time without needs and systems, those agreements and preponderance of you find from a compelling, and in less are far justifications plaintiff was dis- evidence quite inappropriate, some instances criminal of a false charged on basis private em- many non-unionized respect to to defendant Gibson known accusation private-sector In non-unionized ployers. false, may you then Products Co. be place, at legitimate there is employment, Co. Products find the defendant Gibson instances, employer for broad in some least plain- discharge of guilty wrongful terminating employment rela- discretion tiff. legitimate is also tionships, and there that the instruction contends being employees in interest correlative reason, one reason one in error for all, no reason at quit any able to cause recognizes no only: law Utah consider- constitutional apart from relevant discharge of an em- of action for ations. under indefinite term ployee hired for an event, not the it is also in Bihlmaier. the law stated em- on the at-will policy restrictions public Dahle, P.2d 870 Crane Co. employers of deprive Co., doctrine to ployment 1978); Supply v. Am. Linen Held indefinite- discharging an (1957); all discretion Williams Utah 2d point, it is suffi- (10th At this employee. term 714 F.2d City, v. West Jordan policy that public law). cient to declare Cir.1983) (applying Utah specify public wrongful discharge struction failed to a valid may the basis for a policy in the first in- limitation to the at-will doctrine. action should be defined by legislative object enactments and consti- stance Nor did Gibson to the instruction on “protect pub- appro standards which that it ground tutional failed to state Berube, interest.” promote public exception lic or priate public policy rooted in a addition, relevant P.2d at 1043. statutory provision. Defendants’ judicial policy may also be found public specify any particular objection failure to id. decisions. See on the the trial court to the limitation right discharge constitutes waiver. pro- statutory prohibitions Most criminal See, Elecs., e.g., Beehive Medical Inc. v. definitions vide narrow and clear-cut (Utah 1983). Square D 669 P.2d 859 protect public policy designed specific compounded by That waiver defen large specific individu- society at both objection failure to dants’ raise such an ought antisocial acts. The law als from appeal.7 on this the briefs prohibitions to be circum- to allow those by employers seek to secure an vented who Ordinarily, we would not discuss objective prohibited by the law any possible in the instruction further error violation of the avoiding while a technical respect particular public policy to the with used. When the law because of the means doctrine, exception to the at-will but be end, prohibited accomplish to means used cause this is first case which we have is, discharge employee, an runs that public policy sustained a limitation to the public policy, to an action for counter doctrine, will, employment never at-will discharge appropriate way an wrongful is theless, analyze the instruction for the protect public to interest and the both guidance of the bar and to show what employer’s oppressive employee from an error there was did not cause manifest ever power. use of resulting injustice. error a fundamental Instruction No. 43 made clear R.Civ.P. 51. See Utah general proposi the first sentence that as a sponte address is The issue we sua Hodges quit employ tion free to her incorporated instruction No. 43 an whether any ment at time and that Gibson was free public im- appropriate policy of sufficient discharge any her at time “without portance limiting right warrant Gibson’s general correctly cause.” That stated the instruction, discharge at will. The al- The rule under the Bihlmaier doctrine. might though complete not as as it have on, however, instruction then went to state been, public policy in effect rested on the exception could an to that rule. criminal statutes. embodied two relevant discharge guilty find Gibson statute, The false criminal accusation Utah Hodges “discharged on if it found that (1990), provides: Ann. Code 76-8-506 § criminal accusation the basis of a false B person guilty A of a class misde- defendant Products Co. to known to Gibson ” if meanor he: false.... (1) Knowingly gives or causes to be objected solely instruction Gibson any given false information to law en- ground on the that there was no limitation purpose forcement with a officer right discharge its an indefinite-term inducing the officer to believe that an- has no merit in employee. objection That other has committed recognition public policy offense[.] view of our exception doctrine. to the at-will statute, by The theft extortion Utah Code (1990), provides perti- object to instruction No. Ann. 76-6-406

Gibson did not part: in- ground, generally, 43 on the that the nent (1988). Although public poli- N.C.L.Rev. 631 It is not too much to there was no established tried, expect cy exception that counsel should have at least some in Utah when this case was thirty-seven recog- general familiarity widely jurisdictions such established some other have with Leonard, exception. nized such an See A New law. Waiver under such circumstances not Termination, unduly Employment or unreasonable. Common Law burdensome (1) if he when it found the person guilty of theft ob- elements the malicious above, prop- prosecution over the action. As noted one tains or exercises control erty bringing extortion and with the the elements of that action is the another purpose deprive him thereof. improper of an action for an unlawful or essence, purpose. had to find section, (2) oc- As used in this extortion proceedings against the criminal person threatens to: curs when Hodges were initiated for a other bringing justice. than an offender to (d) any person of a crime or Accuse Torts § hatred, contempt, him ridi- expose or instance, paying In this that meant cule; missing money. Gibson the (i) Again, would not in Do other act which evidence is uneontested him substantially charge, itself benefit but of a criminal substantially any sought Hodges pay which would harm Gibson to induce it person respect per- to that money that had been stolen from the health, business, safety, calling, son’s undisput- bag. cash The record is career, condition, reputation, financial ably clear that told it would personal relationships. prosecute paid her if she charges against and that Gibson initiated incorporated Although instruction No. 43 pay her her after adamant refusal to statute, gist accusation it of the false unwaivering based on her assertion of inno requirement did not include the short, undisputed cence. evidence giv- jury find that the false information be case, necessary finding and the of the “any en to law enforcement officer with a jury improper purpose of an under the ma purpose inducing the officer believe claim, licious filled whatever that another has committed an offense.” in hiatus existed instruction No. 43 Whether the failure to include that lan- respect to the exortion and the false both guage would reversible error constitute criminal accusation statutes. Under the proper objection in had there been a raised Associates, holding of Cook Inc. v. War pursued appeal, the trial court and on the nick, (Utah 1984), P.2d 1161 that there need decide. The is question not now presumption validity is a in favor of the solely whether under Rule 51 of Utah verdicts, that, in we hold when viewed the failure consti- Rules of Civil Procedure necessary light undisputed facts and that it tuted manifest error. We hold produced jury findings, instruction No. 43 undisputed are that does not. The facts injustice. no manifest against Hodges, the false accusation made Gibson, by for and on behalf of policy state is that it The declared of this purpose inducing was for the the officer keep the criminal law invio- imperative Hodges had committed an to believe that may late and that it used for achiev- be undisputed a crimi- offense. It is also that ing purposes bringing than an of- charge nal was filed. justice. proceed- To use criminal fender to Likewise, pay money is un- ings instruction No. 43 did not in- to force another to if every justifiable, element that even the accused owes corporate each and v. Em- proved under 76-6-406 to the accuser. See Haas would have to be 138, 139, mett, 459 P.2d of the crime of theft 23 Utah 2d to convict a defendant or, instance, (1969); attempted v. Grand Union Tea by extortion this Cottrell 187, 193, the in- 2d 299 P.2d by Specifically, theft extortion. Utah g of the Re- require to find Section 668 comment struction did not Torts states that that the accusation of a crime statement proceedings to force purpose done for the of de- “one who initiates was Nevertheless, property. pay money the accused to or to turn over priving her of her accuser, does not act clearly required to find that land or chattels to the was proper purpose. This is true al- that of Gibson’s actions for a punitive damages that it concludes lawfully owed to the money is though the against Gibson under sec- were awardable weighty and policy is a That accuser....” S)09(c)of the Restatement tion policy of this public significant part of Crosgrove’s conduct. Torts for employer violates state, especially when accusation by of a false it means III subpart part B of join I attempted extortion. an act of upholds punitive damage that it extent ground on the award Affirmed. to a a case submitted “[w]hen general grounds alternative and a several DURHAM, J., concurs. returned, affirm if the we will verdict (concurring): HOWE, Chief Justice pre for the jury properly could have found concur, except I concur I theories com vailing party on the part IV part IIIB result prehended by general verdict.” Cam objection ground jury, the' without Dalton, P.2d Corp. Int’l v. belt defendants, permitted any of the (Utah 1987)(citing E.R. 1241-42 Barson v. explained by As general verdict. render a Sons, Inc., Squibb & Zimmerman Justice 1984); Justice Stewart (Utah Leigh Carpet & Furniture (Utah we have held separate opinion, Isom, in his 657 P.2d 301-02 v.Co. 1982)). in such circum three cases least general verdict stances, we will affirm join I do not IV. As noted above action the causes of though one of even separate opinion af- and as Justice Howe’s Leigh Furni may infested with error. firms, pro- there is no reason to reach Isom, 657 P.2d 293 Carpet ture & Co. priety of the verdict under the (Utah 1982); Squibb E.R. & Barson v. claim since it is otherwise sus- termination (Utah 1984);

Sons, Inc., Cam issue, I I to address the tainable. Were Dalton, 745 P.2d 1239 Corp. belt Int’l points disagree- would have numerous to that rule in the I dissented discussion of ment with Justice Stewart’s cases, acquiesced to it in first but legal principles two well as the general However, Cambelt, it recognizing particular that was now to this case. issues rule, point the award of discussion on this Under that since his law Utah. court, majority I choose sustained, joined by a damages punitive must be appropriate case to wait for a more No. 43 must any error in instruction poli- public the so-called which to deal with as harmless. viewed exception to the at-will doctrine. cy ZIMMERMAN, (concurring in Justice HALL, C.J., concurring in the concurs result): ZIMMERMAN, opinion of J. opinion part I I of the of Jus- concur A, II, join part subparts I tice Stewart.

C, join portion in that and D. I do not part II that discusses

the introduction agency law and states that the

principles of im-

knowledge all servants is Gibson’s join in NATIONAL Similarly, I sub- CONTINENTAL ILLINOIS puted to Gibson. AND OF II, portion BANK TRUST COMPANY part except that part B of CHICAGO, Plaintiff, Appellee, states, on the earlier discussion of based Cross-Appellant, law, knowledge agency “Crosgrove’s imputed to Gibson....” damages, join I sub- question On ALLEN, Allen, Sue A. Don R. Robert J. that it part A of III to the extent Bingham, Myrle Bingham, N. Marriner it in instruction No. finds no error Maralyn Bingham, Bingham, F. B. Wal support finds the evidence sufficient Brown, Brown, L. Merril lace Patricia against Crosgrove punitive damage award Bryan, Bryn Bryan, Wallace F. Susan conduct, their own and Gibson each for er, Bryner, J. Bonnie Sandra Christen-

Case Details

Case Name: Hodges v. Gibson Products Co.

Court Name: Utah Supreme Court

Date Published: Apr 3, 1991

Citation: 811 P.2d 151

Docket Number: 20929

Court Abbreviation: Utah