Crump v. P & C Food Markets, Inc., No. 86-354

• Docket Nº: No. 86-354
• Citation: 154 Vt. 284, 576 A.2d 441
• Case Date: May 04, 1990
• Court: United States State Supreme Court of Vermont

Page 441

576 A.2d 441 154 Vt. 284, 5 IER Cases 836 Charles CRUMP, Sr.
v.
P & C FOOD MARKETS, INC. No. 86-354. Supreme Court of Vermont. May 4, 1990.

Page 443

[154 Vt. 287] Plante, Richards, Hanley & Gerety, P.C., White River Junction, for plaintiff-appellee.

Robert S. DiPalma of Paul, Frank & Collins, Inc., Burlington, for defendant-appellant.

Before [154 Vt. 284] ALLEN, C.J., PECK and DOOLEY, JJ., BARNEY, C.J. (Ret.), and KEYSER, J. (Ret.), Specially Assigned.

[154 Vt. 287] ALLEN, Chief Justice.

Defendant appeals from a jury verdict in favor of plaintiff on grounds of defamation and intentional infliction of emotional distress. We affirm.

The present action arose after defendant dismissed plaintiff as an employee in August 1983. Plaintiff had been employed by defendant for eighteen years and held the position of head receiver for dry goods at defendant's Vermont distribution center at

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the time of his dismissal. Plaintiff's dismissal followed an incident in which he placed some rejected merchandise on an outgoing truck, intending to pick it up later for his personal use.

One of plaintiff's responsibilities was to reject merchandise delivered to the facility if it was either damaged or had not been ordered by defendant. Truckers would at times refuse to take rejected merchandise back onto their trucks, and would leave it at the distribution center, where it was either salvaged and placed in inventory, or given to the employees to take home for their own use. The incident which triggered plaintiff's dismissal involved two rejected cases of merchandise, one of breakfast cereal and one of toaster pastries. Defendant had no obligation to pay for these rejected cases. The independent trucker to whom they were returned declined to receive them back onto her truck and remove them. Instead, she offered them to plaintiff, after asking if he had any grandchildren, and he accepted them. Plaintiff offered to share them with some [154 Vt. 288] fellow employees and then placed them by his desk to take them home.

At trial, plaintiff argued that once the merchandise was rejected and returned to the independent trucker, it became the trucker's property who in turn could give it to him. Therefore, plaintiff's later removal of it from defendant's premises was not theft. Defendant contended that it did not allow employees to remove merchandise delivered to its facility in that manner, or to receive gratuities from customers or distributors, and that even if defendant never paid for the merchandise, any such removal constituted theft.

Defendant's evidence showed, and plaintiff admitted, that he had failed to follow defendant's prescribed procedures for such rejected merchandise in two respects. First, plaintiff did not place the rejected merchandise in defendant's salvage area for it to be packaged for resale or distribution among the warehouse employees; second, plaintiff failed to obtain a gate pass from either of two supervisors, but instead, in their absence, issued one himself. Plaintiff did not deny that he violated company procedures for accepting gifts of unwanted merchandise from independent truckers. But the basis of plaintiff's defamation claim was that defendant wrongly characterized him as a thief. Plaintiff argued that because the trucker gave the rejected merchandise to the plaintiff, his acceptance and removal of it without following the prescribed company procedures could not have constituted theft.

Plaintiff's evidence showed that he was called a thief at a meeting held at the distribution center a few days after the incident, and that in two written reports prepared subsequent to that meeting, he was characterized as a problem employee and his actions were referred to as employee theft. Three representatives of defendant participated in that meeting: the director of transportation and warehousing; a loss prevention specialist; and the director of loss prevention and safety from defendant's Syracuse office. Written reports submitted as exhibits at trial were prepared about a month and a half after the meeting by the loss prevention specialist who had attended the meeting, and by another loss prevention specialist who had [154 Vt. 289] originated the investigation and then had gone on vacation. These reports were distributed by their authors to the two directors who had attended the meeting and to three other representatives of defendant: the vice-president who was the general manager of defendant's New England Division, defendant's director of employee relations, and the director of store operations in defendant's New England division. There was disputed evidence that a report was also made orally to the security manager for the trucking firm whose driver had taken the merchandise out of defendant's facility, and that the incident was discussed with the driver and another employee of that trucking firm. Plaintiff also presented evidence on the effect of the incident on his social life, his health, his personal and family life, and his reputation in the community.

The basis for plaintiff's claim of intentional infliction of emotional distress was the nature of the meeting and the manner

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in which he was fired: that the meeting was called without prior notice to him; that it went on for three hours without an opportunity for him to have lunch at his normal time; that he was badgered by repeated requests to sign a statement, and to add material to the statement he had already signed; that he feared that his failure to sign a statement would adversely affect the driver of the outgoing truck; that directly after this meeting he was told to "clean out his desk"; and that he was fired summarily after eighteen years of service.

Plaintiff brought the present action seeking damages for defamation, intentional infliction of emotional distress, unlawful employment practices and breach of contract. As plaintiff is black and was 57 at the time of his dismissal, his count for unlawful employment practices included claims of discrimination on the basis of age and race, as well as termination without cause. Before trial, the trial court granted defendant's motion for summary judgment on the issue of termination without cause and denied the motion with respect to intentional infliction of emotional distress and employment discrimination on the basis of age and race. The trial court partially granted defendant's summary judgment motion as to the defamation count, ruling that the testimony given by defendant's employees[154 Vt. 290] at plaintiff's unemployment compensation hearing was absolutely privileged.

At trial, defendant moved for a directed verdict at the close of the plaintiff's case, but did not renew the motion until after the charge to the jury, just before the jury left to deliberate. The motion was denied at both times. The jury returned a verdict for the plaintiff on the defamation and intentional infliction of emotional distress claims and awarded him $19,000 in compensatory and $25,000 in punitive damages for each claim. Defendant moved for judgment notwithstanding the verdict and, in the alternative, for a new trial. The court denied defendant's motions and the present appeal followed.

I. Waiver

Plaintiff argues that defendant should be precluded from raising any of its points on appeal because defendant failed to renew its motion for directed verdict at the close of all the evidence, which is a prerequisite for making a motion for judgment notwithstanding the verdict. See Lemnah v. American Breeders Service, Inc., 144 Vt. 568, 571, 482 A.2d 700, 702 (1984). Defendant moved for a directed verdict at the close of plaintiff's case, but failed to renew the motion at the close of its own case. The trial court allowed defendant to renew the motion after it had charged the jury and before the jury began deliberation.

While this procedure is not preferred, it is not error. A purpose of the requirement that a movant renew a motion for directed verdict at the close of all the evidence is to give the nonmoving party an opportunity to cure the defects in proof that might otherwise preclude the case from going to the jury. Maynard v. Travelers Insurance Co., 149 Vt. 158, 162, 540 A.2d 1032, 1034 (1987); McCarty v. Pheasant Run, Inc., 826 F.2d 1554, 1556 (7th Cir.1987). Further, the rule is designed to prevent a litigant from gambling on winning a favorable verdict and yet retaining a challenge to the sufficiency of the evidence on appeal. Quinn v. Southwest Wood Products, Inc., 597 F.2d 1018, 1024-25 (5th Cir.1979). The timing here afforded the trial court the opportunity to properly determine whether sufficient [154 Vt. 291] evidence existed for the issues to be decided by the jury and gave the nonmoving party the opportunity to attempt to rectify any deficiencies in proof.

II. Defamation

Defendant challenges the trial court's denial of its motion for judgment notwithstanding the verdict on the defamation count, claiming there was insufficient proof at trial of the elements of the tort. Defendant...