Nalley v. Kellwood Co.

RAPP, Presiding Judge. Trial court defendant, Kellwood Company, appeals denial of its motion for new trial following a jury verdict in favor of plaintiff, Raymond D. Nalley. The plaintiff cross appeals the trial court’s grant of remittitur. Nalley injured himself on March 27, 1985, while in the employ of Kellwood. He, without objection, saw his family doctor, who referred him to another doctor, who in turn referred him to a third doctor, a Dr. S. Nalley filed a workers’ compensation claim April 14, 1986. His attorney sent him to another doctor, Dr. E. Dr. E. sent Kellwood a letter dated April 16, 1986, stating Nalley “has reached full benefit from medical treatment” and was temporarily and totally disabled from injury to the date of the letter, April 16, 1986.1 Meanwhile, still being treated by Dr. S., Nal-ley saw Dr. S. on two dates after April 16. Dr. S. released Nalley to return to work on May 26, 1986. Dr. S. communicated this to both Kellwood’s insurance carrier and Nal-ley’s attorney.2 The insurance carrier then communicated this to Kellwood. Nalley did not report on May 26. He reported for work on June 10, without a doctor’s return-to-work slip and was sent for one.3 Nalley left and returned the following day with a slip from Dr. E. On his return, he was informed his position was filled since he had been gone over three days without a valid excuse. Nalley stated he asked his supervisor if his termination was due to his back injury and was told yes.4 Nalley filed a claim for unemployment compensation with the Oklahoma State Employment Commission, which was denied on grounds of employee misconduct based on Nailers failure to “take necessary steps to maintain his job.” Thereafter, Nalley sued Kellwood on February 18,1988, for retaliatory discharge. The matter was tried before a jury and a verdict was returned in favor of Nalley for actual damages in the sum of $5,000 and punitive damages in the sum of $50,000. Kellwood moved for remittitur, which the trial court granted, reducing the punitive damages award to $25,000. The trial court then entered judgment on the modified verdict. Both parties appeal. Kellwood has set out numerous points of alleged error, with Nal1338 ley’s cross appeal presenting a single issue involving remittitur. Nalley’s cross appeal is disposed of by the disposition of Kellwood’s appeal and is thus not set forth separately. Kellwood asserts two principal propositions of error, each containing multiple, separate sub-allegations. Prior to reaching the principal allegation of error considered, it is noted that Kellwood’s proposition 1 and its sub-propositions of error were not contained in its motion for new trial presented to the trial court. This failure is fatal to the alleged allegation of error and prevents its consideration by this court. See Faulkenberry v. Kansas City Southern Ry. Co., 661 P.2d 510 (Okla.1983). This then brings us to proposition 2 and its separate allegations of error. Here again, we eliminate propounded allegations of error numbered A2, B and D of proposition 2 for the reason they are not supported by authority.5 Kellwood’s first surviving proposition asserts the trial court erred in its failure to admit into evidence Nalley’s purported failure to pass a drug screening test given by a previous employer. This allegation is without merit. The issue before the trial court did not involve a prior pattern of alleged misconduct by the plaintiff, nor did it involve the use or distribution of drugs. The issue, of which the plaintiff had the burden of proof, was that of alleged retaliatory discharge by the defendant. The excluded evidence of a drug screen failure was not probative in that it does not tend to prove or disprove the defendant’s retaliatory discharge, nor does it tend to prove or disprove Nalley did not rely upon his doctors’ advice. Moreover, the tendered evidence is not relevant. It does not have “any tendency to make the existence” of non-retaliatory discharge more probable with its admission than by its exclusion.6 Thus, the trial court was correct in its exclusion. Kellwood’s second surviving proposition concerns alleged jury misconduct based on jurors’ remarks during deliberation in which supposedly extraneous information and personal views were brought into the jurors’ discussion. Kellwood, in support, proffers identical affidavits from two jurors. The affidavits, contrary to showing extraneous influence or misconduct, indicate the jury acted as the process intended — the jurors brought their thoughts and backgrounds to their deliberations. Moreover, the defendant overlooks 12 O.S.1991 § 2606(B), which states: B. Upon an inquiry into the validity of a verdict or indictment, a juror shall not testify as to any matter or statement occurring during the course of the jury’s deliberations or as to the effect of anything upon his or another juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes during deliberations. A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. An affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying shall not be received for these purposes. The defendant has submitted no evidence showing misconduct of the jury or that any prejudicial information was brought into the jury room. Here, the decision developed from what the jury believed of the evidence presented. While the evidence of record may permit several inferences, we are bound by that set out by the jury, for which competent evidence exists. This action being one in tort, we note the supreme court’s statement in Walker v. St. Louis-San Francisco Ry. Co., 646 P.2d 593, 597 (Okla.1982), citing another holding wherein the court stated: [W]e adhere to the rule set forth in the syllabus of Wat Henry Pontiac v. Pitcock, Okl., 301 P.2d 203 (1956): [1339] “In a law action the verdict of the jury is conclusive as to all disputed facts and all conflicting statements, and where there is any competent evidence reasonably tending to support the verdict of the jury, this court will not disturb the verdict and judgment based thereon.” We thus found this proposition also without merit. Kellwood’s third and last surviving proposition alleges error in the jury’s award of punitive damages unauthorized by law. The jury returned a punitive damage verdict for $50,000, subsequently reduced by the trial court to $25,000 on the defendant’s motion for remittitur. The .defendant correctly points out that there are here two penal statutes involved in this matter of retaliatory discharge, both of which must be construed together or in pari materia. The first, 85 O.S.1991 § 6, limits awards of punitive damages to a maximum of $100,000,7 while the second applicable statute, 23 O.S.1991 § 9, states: A. In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant, in an amount not exceeding the amount of actual damages awarded. Provided, however, if at the conclusion of the evidence and prior to the submission of the case to the jury, the court shall find, on the record and out of the presence of the jury, that there is clear and convincing evidence that the defendant is guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed, then the jury may give damages for the sake of example, and by way of punishing the defendant, and the percentage limitation on such damages set forth in this section shall not apply. B. The provisions of this section shall be strictly construed. (Emphasis added.) This statute, in section B, clearly allows no deviation. Thus, when these two statutes are read in pari materia, they reveal mandatory restrictions on the award of punitive damages in retaliatory discharge matters. The record shows no evidence that the trial court complied with section A of the statute by making the requisite finding after the evidence was in, and out of the jury’s presence, that the defendant, by clear and convincing evidence, was guilty of conduct “evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed” which would then allow punitive damages in excess of actual damages. Thus, under the admonition of section B of this statute and the trial court’s failure to follow the requirement of section A, we must agree the jury awarded excess punitive damages. Accordingly, the trial court’s judgment on the jury’s verdict for punitive damages in the sum of $25,000 in favor of the plaintiff Nalley will be modified and reduced to the sum of $5,000 in accord with the statute. The trial court judgment based on the jury verdict granting the plaintiff Nalley actual damages in the sum of $5,000 against the defendant Kellwood will be affirmed. The trial court judgment based on the jury verdict granting the plaintiff Nalley punitive damages in the sum of $25,000 after trial court remittitur will be modified to the sum of $5,000 punitive damages and affirmed as [1340] modified, said judgment to bear interest from the date of judgment. The trial court decision is affirmed in part, modified in part and affirmed as modified. REIF, V.C.J., concurs. BRIGHTMIRE, J., concurs in part and dissents in part. Footnotes [1] Dr. E. testified during deposition that part of the letter was a mistake and not intended to be sent. It was sent due to non-deletion from the word processor. However, this was not communicated to Kellwood until the deposition. [2] Nalley admits his attorney showed him Dr. S.’s letter prior to his return to work on June 10, 1986. [3] Kellwood states it had not received Dr. S.’s confirmation letter via mail on June 10, although it admits it knew of Dr. S.'s letter and release. [4] The supervisor denies this statement. Nalley himself is unable to say if it occurred, stating at trial he “might have” discussed why he was fired. [5] See Peters v. Golden Oil Co., 600 P.2d 330 (Okla.1979). Assignment of error not supported by authority will be considered was waived by this court. [6] See 12 O.S.1991 § 2401. [7] 85 O.S.1991 § 6 states: Except as provided in Section 29 of this act, a person, firm, partnership or corporation who violates any provision of Section 5 of this title shall be liable for reasonable damages, actual and punitive if applicable, suffered by an employee as a result of the violation. An employee discharged in violation of the Workers’ Compensation Act shall be entitled to be reinstated to his former position. Exemplary or punitive damage awards made pursuant to this section shall not exceed One Hundred Thousand Dollars ($100,000.00). The burden of proof shall be upon the employee. (Footnotes omitted.)