Harless v. First Nat. Bank in Fairmont

Decision Date23 March 1982
Docket NumberNos. 15088,15089 and 15090,s. 15088
Citation169 W.Va. 673,289 S.E.2d 692
Parties, 117 L.R.R.M. (BNA) 2792, 1 IER Cases 148 John C. HARLESS, Appellee, v. FIRST NAT'L BANK IN FAIRMONT, etc., Appellant and Aubrey B. Wilson, Defendant. John C. HARLESS, Appellee, v. FIRST NAT'L BANK IN FAIRMONT, etc., Appellee and Aubrey B. Wilson, Appellant. John C. HARLESS, Appellant, v. FIRST NAT'L BANK IN FAIRMONT, etc., Appellee and Aubrey B. Wilson, Appellee.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. Rule 49 of our Rules of Civil Procedure provides a proper vehicle to determine complex issues and requires that where the special verdicts or interrogatories are utilized, they may form a basis for altering a general verdict.

2. "An agent or employee can be held personally liable for his own torts against third parties and this personal liability is independent of his agency or employee relationship. Of course, if he is acting within the scope of his employment, then his principal or employer may also be held liable." Syllabus Point 3, Musgrove v. Hickory Inn, Inc., W.Va., 281 S.E.2d 499 (1981).

3. The tort of retaliatory discharge carries with it a sufficient indicia of intent, thus, damages for emotional distress may be recovered as a part of the compensatory damages.

4. "Punitive or exemplary damages are such as, in a proper case, a jury may allow against the defendant by way of punishment for wilfulness, wantonness, malice, or other like aggravation of his wrong to the plaintiff, over and above full compensation for all injuries directly or indirectly resulting from such wrong." Syllabus Point 1, O'Brien v. Snodgrass, 123 W.Va. 483, 16 S.E.2d 621 (1941).

5. Because there is a certain open-endedness in the limits of recovery for emotional distress in a retaliatory discharge claim, we decline to automatically allow a claim for punitive damages to be added to the damage picture. We do recognize that where the employer's conduct is wanton, willful or malicious, punitive damages may be appropriate.

6. One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

7. It is generally recognized that there can be only one recovery of damages for one wrong or injury. Double recovery of damages is not permitted; the law does not permit a double satisfaction for a single injury. A plaintiff may not recover damages twice for the same injury simply because he has two legal theories.

8. In this jurisdiction, a claim for the tort of outrageous conduct is duplicitous to a claim for retaliatory discharge. The damages are essentially the same under both claims since we recognize that if the employer's conduct is outrageous, punitive damages may be recovered in a retaliatory discharge suit as well as compensatory damages including an award for emotional distress.

Solomon & Solomon and David L. Solomon, Morgantown, for John C. Harless.

Rose, Southern & Padden and Herschel Rose, Fairmont, for First Nat. Bank in Fairmont, etc.

Steptoe & Johnson and Herbert G. Underwood, Clarksburg, for Aubrey B. Wilson.

MILLER, Chief Justice:

This is a sequel to our original opinion in Harless v. First National Bank in Fairmont, W.Va., 246 S.E.2d 270 (1978), where we answered a certified question that an at will employee who is discharged could bring, in certain circumstances, an action against his employer. 1 This cause of action has often been characterized as a claim for retaliatory or wrongful discharge. 2

The main issues before us now are the correctness of the damages awarded to the plaintiff, John C. Harless, against his former employer, First National Bank in Fairmont, and supervisor, Aubrey B. Wilson, in the amount of $62,500 compensatory damages and $62,500 punitive damages. The case was given to the jury on three separate theories of recovery: (1) the action of retaliatory discharge; (2) the tort of outrageous conduct; and, (3) the claim of blackballing and blacklisting. The trial court submitted special interrogatories to the jury on the damage issues. 3

Upon the defendants' motion for a new trial, the trial court held that there was insufficient evidence to support a recovery for blackballing or blacklisting and, therefore, removed this item of damages which amounted to $25,000 from the jury verdict. The trial judge also struck the $5,000 compensatory and $5,000 punitive damages awarded against Wilson on the retaliatory discharge theory in that Wilson did not directly discharge the plaintiff. Also removed was the award of $5,000 compensatory and $5,000 punitive damages against the Bank for the tort of outrageous conduct as the court found such a cause of action was not supported by the evidence.

The trial court upheld the award of $20,000 compensatory and $20,000 punitive damages rendered against Wilson on the tort of outrageous conduct claim. The trial court also sustained the jury verdict award of $40,000 against the Bank ($20,000 compensatory and $20,000 punitive damages on the retaliatory discharge theory). Thus, the jury's general verdict of $125,000 was reduced by the trial court to $80,000. From this order, the parties appeal. 4


The plaintiff was employed beginning in 1967 under an oral contract of employment with the First National Bank in Fairmont. As a result of his diligence and good service, he was rewarded by periodic salary increases and promotions and became the Office Manager of the Consumer Credit Department in 1971. The plaintiff testified that in 1968 he became aware that the Bank, in violation of state and federal consumer credit laws, had intentionally and illegally overcharged customers on prepayment of their installment loans and intentionally did not make proper rebates. After an incident of disagreement with Wilson, the plaintiff was suspended from employment for one week in June 1975. In September 1975, the plaintiff reported the illegal practices to a member of the Board of Directors of the Bank. Shortly thereafter, according to the plaintiff, Wilson ordered employees to dispose of certain Bank files that reflected the illegalities.

On October 1, 1975, the plaintiff was demoted from his position of Office Manager of the Consumer Credit Department in what he claims was an effort to embarrass and humiliate him. According to the plaintiff, the illegal practices continued. The plaintiff met on several occasions with a local attorney and a member of the Bank's Board of Directors concerning the alleged illegalities. In the Fall of 1976, the Board of Directors ordered a complete audit and investigation of the Consumer Credit Department, and as a result some refunds were made to the Bank's customers.

In November 1976, three events transpired. The plaintiff and Wilson appeared before a Bank committee investigating the matter where a director acknowledged that illegal practices had been found and that they would be stopped. An investigation of overcharging by the First National Bank in Fairmont was ordered by the Regional Administrator of National Banks at a meeting in Richmond, Virginia. The plaintiff was reinstated to his position as Office Manager of the Consumer Credit Department.

Up until December 1976 the plaintiff was holding a number of Consumer Credit Department files which he had retrieved from Bank wastebaskets. When requested by Bank officials to turn these files over, the plaintiff only turned over a few each day over a period of one week. On December 30, 1976, the plaintiff was summarily discharged from his employment at the Bank by the Executive Vice President, Patrick L. Shulte. 5

The Bank in defending its action asserted five reasons for the plaintiff's dismissal: (1) sequestering confidential Bank files; (2) giving false and misleading information to regulatory authorities; (3) not getting along or making any effort to get along with Wilson; (4) not functioning properly in his position; and, (5) not getting along with other Bank employees. The plaintiff maintains that his discharge was solely because of his attempts to require the Bank to comply with federal and state laws.

We concur with the trial court that there were sufficient facts to carry the case to the jury on the retaliatory discharge action. We do not believe there existed sufficient facts to support recovery on the blackballing or blacklisting 6 or the tort of outrageous conduct actions.


The plaintiff argues that the trial court should not have altered the general verdict of $62,500 compensatory and $62,500 punitive damages rendered against the Bank and Wilson. We are cited cases standing for the proposition that a general verdict will stand if the plaintiff presents sufficient evidence to sustain at least one theory of recovery. E.g., Greenwood Ranches, Inc. v. Skie Construction Co., Inc., et al., 629 F.2d 518 (8th Cir. 1980); Berger v. Southern Pacific, 144 Cal.App.2d 1, 300 P.2d 170 (1956); Hayes v. Massachusetts Mutual Life Insurance Company, 125 Ill. 626, 18 N.E. 322 (1888). The latter two of these cases, however, differ from the present case in that there were no special interrogatories used.

Greenwood Ranches, Inc., supra, is procedurally somewhat analogous to the present case. There the plaintiff farm corporation sued the installer, the designer, the pipe supplier and the pipe manufacturer of an irrigation system. Several causes of action were asserted, i.e. negligence, breach of contract and breach of warranty. The trial court utilized special verdicts under Rule 49 of the Federal Rules of Civil Procedure along with a general verdict, and the jury found special verdicts against three of the defendants. The verdict forms contained the separate amounts for each theory of recovery. The court concluded that:

"Greenwood's [plaintiff's] causes of action are simply alternate theories...

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