Bakker v. Baza'r, Inc.

• Decision Date: 17 June 1976
• Citation: 275 Or. 245,551 P.2d 1269
• Parties: Hendrika BAKKER, Appellant, v. BAZA'R, INC., Respondent.
• Court: Oregon Supreme Court

Page 1269

551 P.2d 1269

275 Or. 245

Hendrika BAKKER, Appellant, v. BAZA'R, INC., Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 7, 1976.

Decided June 17, 1976.

[275 Or. 246-A] Rita Radich, Portland, argued the cause for appellant. On the briefs was John Toran, Jr., Portland.

Edward H. Warren, Portland, argued the cause for respondent. With him on the brief were Michael A. Lehner, and Hershiser, Mitchell & Warren, Portland.

HOWELL, Justice.

Plaintiff filed an action for assault and battery and the intentional infliction of emotional distress against defendant. After a jury verdict in plaintiff's favor for general and punitive damages, the trial court conducted a supplemental hearing and found that plaintiff's cause of action for damages was barred by the Workmen's Compensation Law. Judgment was entered for defendant, and plaintiff appeals.

Plaintiff was employed by the defendant. On July 18, 1973, while at work, plaintiff was approached by a security officer who was also employed by defendant. The security officer opened a shopping bag held by plaintiff and removed some clothing. In doing so, she came in contact with plaintiff, who became extremely upset. This distress caused plaintiff to seek medical and psychiatric treatment.

On August 7, 1973, plaintiff filed a claim with the State Accident Insurance Fund. In responding to a question on the form, 'How were you injured?' she stated, 'Battery--Accusation of Felony or theft in presence of public and fellow employees.' Approximately one month later plaintiff filed an action for damages against defendant alleging an assault and battery and an intentional infliction of emotional distress. ¹

After plaintiff's civil complaint had been filed, defendant filed an employer's report in response to plaintiff's compensation claim. In its report, her employer claimed, 'There was no accident,' and, as to details, stated:

'Apparently (plaintiff) became upset when our store detective asked her to reveal the contents of a sack she was carrying out of the store.'

On October 24, 1973, plaintiff's compensation claim was denied by a claims examiner in a letter which stated that plaintiff's 'problem' did not arise out of, nor in the course of, plaintiff's employment with defendant. The letter also advised plaintiff that she was entitled to request a hearing if she did so within 60 days. On November 29, 1973, defendant filed an answer to plaintiff's civil complaint.

During the trial of the civil case in September, 1974, defendant's counsel advised the court that he had learned of the plaintiff's filing for workmen's compensation. After a brief discussion, the trial court advised both counsel that, if the jury returned a verdict for plaintiff, defendant could file a supplemental answer alleging workmen's compensation as a defense. Following the verdict for plaintiff, the trial court held a hearing on the supplemental answer and concluded that plaintiff was restricted to workmen's compensation.

The threshold question for decision is whether a battery was committed against plaintiff by defendant's employee. If no battery occurred, then defendant's motion for a directed verdict should have been allowed, and we need not consider plaintiff's assignments of error. ²

The incident occurred shortly before closing time on July 18, 1973. Plaintiff had a large J. C. Penney store sack containing a pantsuit she had brought from home and some T-shirts which she had purchased from a fellow employee. Plaintiff stopped to talk to another employee when the security officer came up to plaintiff and said, 'What have we got here?' or, 'What have we got in the sack?' According to plaintiff, the security officer had her feet between plaintiff's, touching plaintiff. She reached over plaintiff's shoulder, pulled out the top of the pantsuit and, in doing so, brushed against plaintiff. After removing part of the pantsuit, the security officer started to reach into the sack again. However, plaintiff pushed her hand away and removed the T-shirts, as well as the rest of the suit, and showed them to the officer. Plaintiff became extremely upset over the incident, both at the time it occurred and later. Her distress eventually caused her to secure medical treatment.

[2-4] To constitute liability for a battery, the conduct which brings about the harm must be an act of volition on the actor's part, and the actor must have intended to bring about a harmful or offensive contact or put the other party in apprehension thereof. 1 Harper & James, The Law of Torts 215--17, § 3.3 (1956). It is not necessary that the contact do actual physical harm--it is sufficient if the contact is offensive or insulting. Prosser, Law of Torts 36, § 9 (4th ed 1971). Therefore, on the basis of the evidence outlined above, we find that plaintiff did make out at least a prima facie case of battery. Correspondingly, defendant's motion for a directed verdict was properly denied.

Plaintiff's first assignment of error is that the trial court erred in denying plaintiff's motion to strike defendant's motion for a judgment n.o.v. or in the alternative for a new trial. Plaintiff argues that defendant's motion was not timely filed. However, the trial court eventually denied defendant's motion, and therefore, regardless of the merits of the plaintiff's argument, the issue is now moot.

Plaintiff's next assignment of error is that the trial court erred in allowing defendant to file a supplemental answer which alleged that plaintiff's injuries were compensable under the Workmen's Compensation Law and, therefore, that plaintiff's civil action was barred.

The circumstances surrounding the filing of the supplemental pleading were somewhat unusual. During the second day of the trial, defendant's attorney informed the court, out of the presence of the jury, that he had learned that plaintiff had previously filed a claim for the same injuries under the Workmen's Compensation Law. ³ Defendant wanted the court's permission to ask about this matter during his cross-examination of the plaintiff which was about to commence. However, the matter raised was a legal defense and was not a factual matter to be considered by the jury. Therefore, after some discussion, the court decided to proceed in the following manner:

'I think that what we should do is this, that in the event that there is a plaintiff's verdict in this case, you can petition the Court to file a supplemental answer and that can be adjudicated as a separate legal defense just as we pre-adjudicate it in many of the cases.'

Following the jury's verdict for plaintiff, defendant's supplemental answer was submitted to the court and filed along with a memorandum of law in support thereof. Subsequently, a hearing was held on its merits, and the trial court eventually ruled in defendant's favor.

Plaintiff now argues that the trial court erred in permitting defendant to file its supplemental answer. Specifically, plaintiff contends that the facts alleged in the supplemental pleading did not arise after the prior pleadings had been filed and were not newly discovered by the defendant employer. Plaintiff also argues that no motion or petition for leave to file the supplemental answer was ever made to the trial court and, therefore, that the court's discretion to allow the filing of the supplemental answer was never properly invoked.

Plaintiff's counsel did not object to this method of proceeding on any grounds during the trial when this procedure was first considered and adopted by the trial court. Nor did he object during the subsequent hearing on the supplemental answer, except to note that there was a question as to the timeliness of the supplemental answer. ⁴ Moreover, plaintiff did not move to strike the supplemental answer on the basis of the timeliness issue. Under such circumstances, we would be justified in declining to consider these alleged procedural defects any further on the grounds that plaintiff has not adequately protected her rights on appeal. See State v. Hickmann, 75 Adv.Sh. 3434, 3435--36, 273 Or. 358, 540 P.2d 1406 (1975); Wood Ind'l Corp. v. Rose, 271 Or. 103, 530 P.2d 1245 (1975); Crawford v. Jackson, 252 Or. 552, 451 P.2d 115 (1969).

However, we also note that on at least two previous occasions defendant employers have been allowed to raise the exclusive remedy provision of the Workmen's Compensation Law in the form of a supplemental answer. ⁵ Such a procedure closely parallels that specifically provided for in ORS 656.595(3) for raising similar challenges to an individual's right to bring a civil action against a third party for work-connected injuries. ⁶ It is also in accord with our decision in Bibby v. Hillstrom, 260 Or. 367, 490 P.2d 161 (1971). In Bibby we held that, in order to avoid prejudice to the plaintiff's case in a civil action for assault and battery, the defendant's right to offset a compensation award for the same injuries should be litigated

'by the use of supplemental pleadings after a trial by the jury of the issues of defendant's liability and the extent, if any, of plaintiff's total damages. * * * In a situation where plaintiff's claim for compensation has not been finally disposed of at the time of trial, the matter of the ultimate judgment must necessarily be held in abeyance for subsequent determination by the court since it could not be determined by the jury.' 260 Or. at 370--71, 490 P.2d at 162.

Moreover, considering the particular circumstances under which the applicability of the workmen's compensation bar was raised in this case, the method of procedure adopted by the trial court appears to have been at least as appropriate as any other available method of proceeding. Since the jury had been selected and the testimony had already begun, the court could have recessed the case, held a hearing on the supplemental defense or, as the court did, postpone the hearing on the supplemental defense until after a...