MICHAEL E. LILLIG, Petitioner, v. BECTON-DICKINSON, Respondent.
No. 50912-3
En Banc. April 17, 1986.
April 17, 1986
After modification, further reconsideration denied May 13, 1986.
653
The deputy prosecutor then asked the witness a few more questions and terminated his cross examination. Defense counsel did not object to the abоve question or move to strike the witness’ response. It is unlikely that this reference to a polygraph examination prejudiced the defendant‘s case. The defendant‘s alibi, as presented by this witness, was on shaky ground long before the witness mentioned the polygraph examiner.
Lastly, the defendant claims error with respect to the trial court‘s decision to allow the jury to recess overnight during its deliberations. Since the record provides no basis for review, we cannot consider this issue.41
The evidence of the defendant‘s guilt was sufficient to sustain his conviction of murder in the first degree.
Affirmed.
DOLLIVER, C.J., UTTER, BRACHTENBACH, DORE, PEARSON, CALLOW, and GOODLOE, JJ., and HAMILTON, J. Pro Tem., concur.
After modificatiоn, further reconsideration denied May 13, 1986.
Perkins, Coie, Stone, Olsen & Williams, by Dieter G. Struzyna and David E. Wagoner, for respondent.
DOLLIVER, C.J. - We accepted this case for review to
I
Michael Lillig worked fоr Becton-Dickinson (B-D) as a medical supply salesman. In addition to salary, B-D offered an incentive bonus plan. B-D reserved the right to make adjustments in the bonus plan in cases of windfall volume, adverse economic factors, or new product sales. The plan provided that “[n]o bonus will be paid to any sales representative who is not on roll on December 1, 1979.”
In the fall of 1979, Regional Sales Manager James Krachenfels asked Lillig to resign. Unwilling to forgo his bonus, Lillig said he would resign before December 1, 1979, if given written assurance his resignation would not affect his 1979 bonus. On November 9, 1979, Krachenfels gave Lillig the following handwritten assurancе: “Be advised that you will not be underpaid on your 79’ bonus because of resigning before the Dec. 1st guideline.” Lillig tendered his resignation before December 1, 1979. On December 13, 1979, B-D sent Lillig a check in the amount of $3,950. By way of an attachment, B-D explained that this “Incentive Compensation Check . . . represents 25% of your $15,800.00 base salary.”
On May 19, 1980, Lillig commenced this suit for breach of contract. In the course of pretrial discovery, Lillig discovered a memorandum in his B-D personnel file in which Krachenfels set forth the reasons behind the decision to ask for Lillig‘s resignation. Among other things, Krachenfels wrote that “[Lillig] lied to a dealer . . .” After finding this memo, Lillig amendеd his complaint to add a claim for libel.
The trial court granted Lillig‘s motions for partial summary judgment on several issues. The court found the 1979 plan and Krachenfels’ written assurance were both enforceable contracts, that B-D had breached these contracts, and that the amount of bonus moneys to which Lillig wаs entitled was to be computed according to the formula set forth in the plan. The court also found Krachenfels had the apparent authority to make the written assurance concerning the effect of Lillig‘s resignation on his 1979 bonus.
The amount of the bonus due under the plan was contested. At trial, counsel for B-D admitted, in opening and closing statements, that Lillig ought to have been paid a bonus of $9,854.23. Lillig asserted he was entitled to a bonus of $14,556. B-D contended this latter figure failed to account for numerous adjustments to the bonus pool amount for variables such as windfall sales volume and sales attributable to managers and other nonsales personnel.
As to the libel claim, testimony revealed Krachenfels’ statement about Lillig‘s lie stemmed from a conversation he had overheard between Lillig and a dealer. Krachenfels testified that, when he confronted Lillig about the matter, Lillig responded, in effect, that it was of no cоnsequence. Krachenfels interpreted this as an admission and did not investigate further. Lillig asserted he did not lie and that his remarks to the dealer were misunderstood by Krachenfels. He also testified he thought he had cleared up the misunderstanding to Krachenfels’ satisfaction.
The jury determined Lillig was entitled to a bonus in the amount of $14,556; it awarded him $12,685 for special damages as a result of B-D‘s breach of contract; it also returned a $50,000 verdict for Lillig on his libel claim.
B-D moved for a new trial or judgment notwithstanding the verdict. Lillig moved for exemplary damages under
B-D appealed the judgment for libel. Lillig cross-appealed the trial court‘s denial of statutory exemplary damages and attorney fees on his bonus claim. On B-D‘s appeal, the Court of Appeals concluded Lillig‘s proof failed to overcome thе employer‘s qualified privilege. The court reversed the judgment fixing damages for libel and dismissed that cause of action. On Lillig‘s cross appeal, the Court of Appeals determined Lillig was entitled to attorney fees under
II
LIBEL
Lillig challenges the Court of Appeals dismissal of his libel award. The Court of Appeals reversed the trial court‘s award stating there was no evidence presented in the record to overcome B-D‘s qualified privilege.
In reviewing a trial court‘s record, the reviewing court must take great care not to substitute its own judgment. State v. O‘Connell, 83 Wn.2d 797, 523 P.2d 872 (1974).
As we have said on so many occasions, this court will overturn a jury‘s verdict only rarely and then only when it is clear that there was no substantial evidence upon which the jury could have rested its verdict. . . . The credibility of witnesses and the weight to be given to the evidence are matters within the province of the jury and even if convincеd that a wrong verdict has been rendered, the reviewing court will not substitute its judgment for that of the jury, so long as there was evidence which, if believed, would support the verdict rendered. (Citations omitted.) State v. O‘Connell, at 839.
It was undisputed that Krachenfels had a qualified privilege. To overcome this privilege, at the time of this trial, the plaintiff hаd the burden of proving the defendant made the statement in bad faith or without an honest belief in the statement. Gem Trading Co. v. Cudahy Corp., 92 Wn.2d 956, 603 P.2d 828 (1979). The defendant‘s honest
To uphold the trial court, there must be substantial evidence upon which the jury could have rested its verdict. The test in Washington for substantial evidence requires it to be in “sufficient quantum to persuade a fair-minded person of the truth of the declared рremise.” Ridgeview Properties v. Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231 (1982).
Plaintiff offered no evidence to show defendant Krachenfels was without reasonable grounds in his belief of the lying incident. The thrust of the plaintiff‘s evidence went to establish the falsity of the libelous statement; this is not enough to overcome the privilege. Gem Trading Co. v. Cudahy Corp., supra; Moore v. Smith, 89 Wn.2d 932, 578 P.2d 26 (1978).
The record before us is devoid of any evidence to persuade a “fair-minded” person under either the Gem Trading Co. negligence standard or the actual knowledge or reckless disregard standard of Bender that the defendant abused its qualified privilege. The Court of Appeals properly reversed the jury‘s libel verdict under either “abuse” standard.
III
EXEMPLARY DAMAGES
The pertinent statutes on this issue read:
Any employer or officer, vice principal or agent of any employer, whether said employer be in private business or an elected public official, who
(2) Wilfully and with intent to deprive the employee of any part of his wages, shall pay any employee a lower wage than the wage such employer is obligated tо pay such employee by any statute, ordinance, or contract;
. . .
Shall be guilty of a misdemeanor.
Any employer and any officer, vice principal or agent of any employer who shall violate any of the provisions of subdivisions (1) and (2) of
RCW 49.52.050 shall be liable in a civil action by the aggrieved employee or his assignee to judgment fоr twice the amount of the wages unlawfully rebated or withheld by way of exemplary damages, together with costs of suit and a reasonable sum for attorney‘s fees . . .
For the purposes of this case we will assume the bonus in this case did constitute wages within the meaning of the statutes.
Plaintiff argues this court cannot refuse the statutory remedy of
While the trial court did not enter written findings with regard to the plaintiff‘s request for exemplary damages, its oral observations offer some insight. State v. Eppens, 30 Wn. App. 119, 126, 633 P.2d 92 (1981). The trial court found
We affirm the Court оf Appeals and remand to the trial court for determination and award of attorney fees pursuant to
BRACHTENBACH, PEARSON, CALLOW, and DURHAM, JJ., and CUNNINGHAM, J. Pro Tem., concur.
DORE, J. (dissenting)—The majority holds that the plaintiff should not receive exemplary damages pursuant to
The majority correctly states that in order for the penalty provisions of
The majority holds:
The trial court found
RCW 49.52.070 to be inapplicable because there had been a bona fide dispute prior to the summary judgment as to whether Krachenfels’ written assurance constituted an enforceable contract. The court also noted that the amount of bonus due under the plan was subject to some discretion and the final amount owing to plaintiff remained subject to considerable dispute at trial. There is sufficient evidence in the record to show a bona fide dispute as to the actual amount owed. Our review is limited to this determination.
(Italics mine.) Majority opinion, at 660. This аnalysis is legally and factually flawed.
First, the majority states that the question of whether the dispute is or is not bona fide is a question of fact. The majority also holds that the judge‘s decision not to give a jury instruction is correct because sufficient evidence exists
To the contrary, the uncontroverted evidence and the $14,556 jury verdict indicate that the jury did not believe that Becton-Dickinson acted pursuant to a bona fide dispute. This verdict implies: (1) Lillig was paid $3,950 pursuant to the Incentive Compensation Plan (Clerk‘s Papers, at 217), (2) after a partial summary judgment order it was established that Lillig should receive his full bonus, (3) Becton-Dickinson did not pay him any additional funds despite its ability to do so, and (4) Becton-Dickinson, by its own repeated admissions at trial, owed Lillig at least $9,854. These facts would lead to the conclusion that after the partial summary judgment order, Becton-Dickinson acted in bad faith toward Lillig by refusing to pay the additional bonus.
Prior case law supports my position that even if only a part of the salary is in dispute, failure to pay the money owed which is not in dispute warrants exemplary damages. In Brandt v. Impero, 1 Wn. App. 678, 463 P.2d 197 (1969), the Court of Appeals upheld an exemplary damage award under
I would remand this case for a determination of whether the dispute was bona fide. Whatever the trier of fact finds was not withheld pursuant to a bona fide dispute would be subject to the exemplary damage provisions of RCW 49.52-
UTTER and GOODLOE, JJ., concur with DORE, J.
Reconsideration denied September 3, 1986.