Coats v. Construction & Gen. Laborers Local No. 1

• Decision Date: 09 March 1971
• Docket Number: A,No. 185,185
• Citation: 15 Cal.App.3d 908,93 Cal.Rptr. 639
• Court: California Court of Appeals Court of Appeals
• Parties: Tom COATS, Plaintiff and Respondent, v. CONSTRUCTION AND GENERAL LABORERS LOCAL NO. 185, et al., Defendants, Construction and General Laborers Localppellant. Civ. 12210.

Page 639

93 Cal.Rptr. 639

15 Cal.App.3d 908

Tom COATS, Plaintiff and Respondent, v. CONSTRUCTION AND GENERAL LABORERS LOCAL NO. 185, et al., Defendants, Construction and General Laborers Local No. 185, Appellant.

Civ. 12210.

Court of Appeal, Third District, California.

March 9, 1971.

Rehearing Denied April 8, 1971.

Bradford & Stanley, by Jerome S. Stanley, Sacramento, for plaintiff-respondent.

Levy & Van Bourg, by Gerald Tiernan, San Francisco, and Steel & Arostegui, Marysville, for defendants-appellants.

BRAY, Associate Justice (Assigned).

Defendant Union appeals from the judgment after jury verdicts in favor of plaintiff for $5,000 general damages and $50,000 punitive damages, and from the order denying 'Motion for Judgment notwithstanding the Verdict.'

QUESTIONS PRESENTED

1. Sufficiency of the evidence.

2. Excessive damages.

3. Punitive damages may be awarded against an employer of a person causing an injury.

RECORD

Plaintiff, a member of defendant Union since 1954, brought this action against the Union and two of its employees, Rose and Andreoff, for damages for injuries resulting from assault and battery. After a trial, the jury awarded plaintiff the sums above mentioned. The sole appeal is by defendant Union.

EVIDENCE

The Union is composed of general laborers, among whom it was testified that fist fights were not uncommon. Plaintiff was an active member, missing perhaps only two meetings between 1954 and 1966. Plaintiff would actively participate in the meetings, take the floor and comment regarding the Union management. Rose and Andreoff were assistant business representatives of the Union. On the night of February 9, 1966, plaintiff was at the Union meeting attacking the policy of a flat $125 per month car allowance, plus oil, gas, etc., to assistant business agents, contending the cars could be rented for $65 per month. There was testimony that Rose and Andreoff directly or without provocation called plaintiff a liar. During the meeting, plaintiff went to the restroom, where he was threatened by Andreoff. Plaintiff left the restroom and while he was in the hallway of the Union, Rose joined Andreoff. Rose threatened to whip plaintiff and throw him out of the Union. Two men got between Rose and plaintiff, preventing Rose from carrying out his threat. Plaintiff testified that he was in actual physical fear at that time as he knew if he moved or did anything, he would be beaten up.

After the meeting, plaintiff went across the street to the Patio Bar. What happened there is in dispute. Plaintiff testified that without any provocation, Rose, referring to the occurrence at the business meeting, attacked him and struck him four blows in the face, knocking him to the floor each time. Witnesses for defendant testified that plaintiff attacked Rose. One of plaintiff's eyes was closed and he was quite bloody. His wife testified that two days later, he was still all beaten up. He did not see a doctor but his wife gave him medical treatment.

The next day, plaintiff advised the Union's president, business manager and secretary of the occurrences of the evening before. An investigation was made by the Union and one of the officers concluded that it was a personal matter between the participants. However, the president came to a different conclusion as he wanted to fire Rose and Andreoff. Two days after the meeting, Rose called plaintiff and told him to get out of town.

Immediately thereafter, plaintiff started experiencing difficulties with the Union in his treatment at meetings and at work. In all his prior twelve years' membership, he had never failed to work enough hours to qualify for health and welfare benefits. After this trouble, for the first time he did not receive sufficient hours to qualify and the entire type and tenor of his work changed radically.

To vindicate himself, he filed this action on March 24, 1966. He attempted to secure witnesses. One Morrison agreed to testify for him. On one occasion, Morrison and plaintiff reported to the Union as required and three men followed plaintiff home from the hall. Later the same day, Morrison was followed from the Union hall and induced to pull off the road. Three men jumped out of their car. They dragged Morrison from his car and beat him into unconsciousness, telling him to leave the Union alone. The marks on his face indicated that they were made with chains. One Roberts informed plaintiff by phone 'We just worked over your witness. How do you like those potatoes?'

There was testimony to the effect that Roberts worked in some capacity for the Union, was paid by it and when necessary did this type of work. Prior to this time, Morrison had not had any problems with the Union but subsequently he was tried and expelled. At the Union hearing, he was advised by a board member that if he had not had plaintiff with him, he would have escaped with an apology. The Union continued to employ Rose and Andreoff subsequent to the fight.

1. Sufficiency of the evidence.

Defendant contends that there is no substantial evidence that defendant Union is responsible for plaintiff's injuries.

It is uncontradicted that plaintiff was assaulted by Rose and Andreoff as a result of plaintiff's opposition at the Union meeting to their car allowances; that plaintiff was assaulted by them at the Union hall during a recess in the meeting and later by Rose; and that the reason for the assaults was the fact that plaintiff had exercised his right as a member of the Union to oppose the payments bring made by the Union to his two assailants.

Rose and Andreoff were in the employ of the Union and were on duty at the meeting as they were required to attend all meetings. There is no evidence that the officers of the Union authorized the beating of plaintiff. However, an employer may not avoid liability for an assault by his employee on the ground that the employment did not contemplate an entry into relations with third persons in the course of which he might commit an assault, where his assignment would obviously bring him in contact with others and where the "injury resulted from a dispute arising out of the employment." (Fields v. Sanders (1947) 29 Cal.2d 834, 842, 180 P.2d 684, 690.)

Whether an employee is acting within the scope of his employment or authority is an issue that involves the determination of several factors, among others, 'whether his conduct was authorized by his employer, either expressly or impliedly * * * whether his conduct occurred during the performance of services for the benefit of the employer, either directly or indirectly * * * whether his conduct, even though not expressly or impliedly authorized, was an incidental event connected with his assigned work * * * and many other things besides the time and place of performance of his duties as an employee.' (McIvor v. Savage (1963) 220 Cal.App.2d 128, 136, 33 Cal.Rptr. 740, 745.) Whether the fact that the battery occurred away from the Union building would permit the Union to contend that it was done without its authority is immaterial. (It must be remembered, however, that plaintiff was assaulted by both Rose and Andreoff on the Union premises, only being prevented from striking him by the intervention of others.) The evidence discloses that the Union by its conduct ratified the actions while having full knowledge thereof. Although informed of the actions of Rose and Andreoff, the Union did not repudiate them, in spite of the desire of the president to do so by discharging the two men. A reasonable inference is that the officers of the Union ratified the actions of Rose and Andreoff. ¹ Particularly is this so in view of the evidence which shows that prior to employing the two men, the then president, Don Hill, was informed of Rose's violent propensities through newspaper reports and observations and through a specific anonymous communication. Hill testified that during his term as president, he had discussed the violent actions of the two men with Peterson, the former finance secretary, and Coron, a former member of the board, and that they were concerned about their actions. Hill knew that during a strike at the Oroville Dam, Rose had severely beaten a Union member and that on an occasion, Andreoff had knocked a member down in the Union hall, causing great fear among the members. The difficulties which plaintiff and Morrison had with the Union after the assault also bear on the question of ratification.

'An employer is responsible for the wilful and malicious acts of an employee which he has ratified. Failure to discharge an employee or agent guilty of oppressive acts towards patrons of the employer is in itself evidence to show ratification.

McChristian v. Popkin, 75 Cal.App.2d 249, 171 P.2d 85. If the employer after knowledge or opportunity to learn of the agent's misconduct retains the wrongdoer in service, the employer may make himself liable in punitive damages.' (Shoopman v. Pacific Greyhound Lines (1959) 169 Cal.App.2d 848, 856, 338 P.2d 3, 9.)

Caldwell v. Farley (1955) 134 Cal.App.2d 84, 90, 285 P.2d 294, and Sullivan v. Matt (1955) 130 Cal.App.2d 134, 278 P.2d 499, relied upon by defendant, can be distinguished. There, the...