Williams v. ABS Enterprises, Inc.

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Williams v. ABS Enterprises, Inc.
1987 OK CIV APP 6
734 P.2d 854
58 OBJ 407
Case Number: 64265, 64267
Decided: 02/10/1987

PAUL WILLIAMS, APPELLANT/CROSS-APPELLEE,
v.
ABS ENTERPRISES, INC., AN OKLAHOMA CORPORATION, APPELLEE/CROSS-APPELLANT.

An appeal from the District Court of Oklahoma County; Leamon Freeman, Judge.

¶0 This is an action for damages for retaliatory discharge. In these consolidated appeals, Plaintiff appeals trial court's striking his claim for damages for mental anguish and its refusal to instruct on punitive damages. Defendant appeals trial court's instruction on burden of proof.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Walter Jenny, Jr., Oklahoma City, for appellant/cross-appellee.
Michael F. Muldowney, Oklahoma City, for appellee/cross-appellant.

HANSEN, Judge

¶1 Plaintiff filed the present action for damages for retaliatory discharge under the Workers' Compensation Act, 85 O.S. 1985 §§ 5 , 6. The trial court entered judgment in his favor on a jury verdict in the amount of $10,920. Plaintiff appealed, arguing the trial court erred in striking his claim for damages for mental anguish and in refusing to instruct the jury on punitive damages. Defendant filed a separate appeal arguing the trial court did not instruct the jury on the correct burden of proof. The Supreme Court consolidated the two appeals, denominating Plaintiff as Appellant/Counter-Appellee and Defendant as Appellee/Counter-Appellant.

¶2 The issues involved herein are questions of law; thus, the facts giving rise to Plaintiff's discharge are not relevant. In his appeal Defendant submits a person claiming relief under Oklahoma's retaliatory discharge statute must prove the retaliatory intent was the sole reason for his discharge. The trial court did not instruct the jury in this manner. 85 O.S. 1981 § 5 provides:

"No person, firm, partnership or corporation may discharge any employee because the employee has in good faith filed a claim, or has retained a lawyer to represent him in said claim, instituted or caused to be instituted, in good faith, any proceeding under the provisions of Title 85 of the Oklahoma Statutes, or has testified or is about to testify in any such proceeding. Provided no employer shall be required to rehire or retain any employee who is determined physically unable to perform his assigned duties."

Defendant's appeal may be decided by reference to a recent Supreme Court decision dealing with burden of proof under this statute, Thompson v. Medley Material Handling, Inc., (1987), 732 P.2d 461

¶3 The trial court struck Plaintiff's prayer for damages for mental anguish prior to trial. However, it retained the issue of punitive damages until the evidence was presented. It then refused to instruct on punitive damages stating "there was no evidence in the record from which a jury could reach the conclusion there was malice or wreckless disregard, the elements necessary for punitive damages". Plaintiff claims this is error. He argues reasonable damages allowed by 85 O.S. 1981 § 6 should include punitive damages. This section provides:

A person, firm, partnership or corporation who violates any provision of Section 5 of this title shall be liable for reasonable damages 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. The burden of proof shall be upon the employee.

¶4 In Webb v. Dayton Tire and Rubber Company, 697 P.2d 519 (Okla. 1985) the Supreme Court held it proper and necessary that punitive damages be assessed against an employer under appropriate circumstances in strict conformity with the purpose therefor, to prevent the practice of retaliatory discharge. It stated "(I)n the absence of the deterrent effect of punitive damages there would be little to dissuade an employer from engaging in the practice of discharging an employee for filing a Workman's (sic) compensation claim"

¶5 The entire transcript of testimony was not included in the designation of record. In his brief, Plaintiff points to no evidence on which the trial court might have based an instruction on punitive damages under 23 O.S. 1981 § 9 .

¶6 Plaintiff's final proposition of error is also meritorious and warrants reversal. He argues the trial court erred in striking his prayer for damages for mental anguish from his petition. It was the trial court's opinion that reasonable damages were for monetary loss and reinstatement to the job only.

¶7 The Oklahoma Supreme Court has not addressed this particular issue. However, Oklahoma courts have awarded damages for mental anguish unaccompanied by physical injury in other circumstances involving intentional violations of human rights.

¶8 Accordingly, the order is AFFIRMED IN PART, REVERSED IN PART AND REMANDED for a new trial in accordance with this opinion.

¶9 HUNTER and BAILEY, JJ., concur.

Footnotes:

1 The mandate has not yet issued as of the date of this opinion.

2 The Legislature amended this section by Laws of 1986 C222 § 9, effective November 1, 1986, by specifically including punitive damages but limiting them to $100,000.

3 See also Webb v. Dayton Tire and Rubber Co., 697 P.2d 519, 524 (Okla. 1985) Opala, J. specially concurring.

4 This section provided:

"In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of 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."

The statute has since been amended.

5 See Bennett v. City National Bank and Trust Co., 549 P.2d 393 (Okla. App. 1975); Reeves v. Melton, 518 P.2d 57 (Okla. App. 1973); Mashunkashey v. Mashunkashey, 189 Okla. 60, 113 P.2d 190 (1941).

6 Gloyd L. McCoy, A Primer on the Oklahoma Retaliatory Discharge Act, 56 O.B.J. 715 (1986).