Huston v. Trans-Mark Services, Inc., TRANS-MARK

Decision Date14 April 1980
Docket NumberNo. A7704-04682,TRANS-MARK,A7704-04682
Citation609 P.2d 848,45 Or.App. 801
PartiesDonald M. HUSTON, Appellant, v.SERVICES, INC., a corporation, and Kansas City Southern Railway Company, a corporation, Defendants, and Charles D. Pollard, Respondent. ; CA 13923.
CourtOregon Court of Appeals

Gerald R. Pullen, Portland, argued the cause and filed the brief for appellant.

Douglas M. Ragen, Portland, argued the cause for respondent. With him on the brief was Miller, Anderson, Nash, Yerke & Wiener, Portland.

Before SCHWAB, C. J., and RICHARDSON and JOSEPH, * JJ. JOSEPH, Judge.

This is an action for intentional interference with contractual relations. Plaintiff was employed by Trans-Mark Services, Inc. and Kansas City Southern Railway Company 1 (KCS), as sales manager in the Portland office. Defendant Pollard (defendant) was employed by KCS as a regional vice president. Plaintiff alleged that defendant Pollard intentionally and wrongfully interfered with his employment contract and caused him to be fired.

The jury returned a verdict against defendant, awarding $100,000 as general damages and $1,000 as punitive damages, and judgment was entered on the verdict. Defendant filed alternative motions for judgment notwithstanding the verdict and for a new trial. The trial court granted defendant's motions and entered judgment in favor of defendant. 2 Plaintiff assigns as error the rulings on these motions.

Plaintiff challenges the judgment n. o. v. on both procedural and substantive grounds. As to his procedural argument, he contends that the n. o. v. was improper because defendant did not challenge the sufficiency of the evidence of liability either by motion for nonsuit or for directed verdict. While the record does not disclose a specific motion for directed verdict, by reasons of in-chambers discussions and defendant's requested peremptory instruction the trial court had an opportunity to consider and rule upon the propriety of either submitting the case to the jury or directing a verdict for defendant. 3 We therefore will consider plaintiff's substantive challenge to the judgment n. o. v.

Plaintiff contends that the trial court erred in granting the judgment n. o. v. because the evidence was sufficient to support the conclusion that defendant intentionally interfered with plaintiff's contractual relations with KCS, resulting in injury to plaintiff, for purposes of revenge rather than to benefit the corporation.

In determining what plaintiff must prove to make out a claim for wrongful interference with business relationships, the Supreme Court in Straube v. Larson, 287 Or. 357, 361, 600 P.2d 371, 374 (1979), enunciated the following test:

" * * * (T)o be entitled to go to a jury, plaintiff must not only prove that defendant intentionally interfered with his business relationship but also that defendant had a duty of non-interference ; i. e., that he interfered for an improper purpose rather than for a legitimate one, or that defendant used improper means which resulted in injury to plaintiff. Therefore, a case is made out which entitles plaintiff to go to a jury only 'when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself.' * * *" (Quoting from Top Service Body Shop v. Allstate Ins. Co., 283 Or. (201) at 209, 582 P.2d (1365) at 1371 (1978).)

The trial court stated it granted the judgment n. o. v. because plaintiff's claims against defendant, as set forth in plaintiff's amended complaint, either "did not amount to interference with plaintiff's contractual relation with his employer" or "were not established by the evidence". 4.

In his amended complaint, plaintiff alleged that defendant Pollard "intentionally and with improper motives commenced a series of acts which interfered with plaintiff's contract of employment with defendants Trans-Mark and KCS, in such a manner as to cause said defendants to terminate plaintiff's employment contract and cause plaintiff to be fired * * *." He further alleged that defendant caused plaintiff to be fired because plaintiff complained to defendant that his relationship with his girlfriend interfered with the office's ability to perform its duties and that defendant wrongfully, without cause, harassed and criticized plaintiff's work performance with the intent to prevent plaintiff's performance of his duties. If proved, together with damages and causation, those allegations satisfied the elements of the tort, as enunciated in Straube.

A judgment n. o. v. should not be granted where there is any evidence to support the verdict. Hill v. Garner, 277 Or. 641, 643, 561 P.2d 1016, appeal dismissed, 434 U.S. 989, 98 S.Ct. 623, 54 L.Ed.2d 486 (1977). In the present case, there are several material conflicts in the evidence; however, as is proper after a verdict for plaintiff, we review the evidence in the light most favorable to the plaintiff.

Plaintiff entered the railroad business in 1947. In 1962, he was hired by KCS as a travelling freight agent, based in Portland. In 1968, defendant was sent to the Portland office to replace the sales manager who had retired. In 1974, defendant was promoted to regional vice president, and plaintiff was promoted to sales manager. At a celebration party, defendant stated that plaintiff had done an excellent job and that his own promotion was made possible by plaintiff's efforts. Between 1968 and 1975, plaintiff testified that defendant had no particular criticism of plaintiff's work and they had no substantial personality conflicts. Moreover, employees testified they had no criticism of plaintiff's work, and one testified that plaintiff's work was exceptional. On the other hand, there was testimony that even prior to 1974 plaintiff and defendant had personality and communication conflicts.

In mid-1975, defendant was transferred to the KCS office in New York. Shortly thereafter, a problem arose in the Portland office, involving a woman with whom defendant was having an extra-marital affair. That woman wrote a letter, ostensibly from her employer who was a customer of the railroad, to the president of the railroad in Kansas City. In the letter she criticized the Portland office staff. There was testimony that her sole purpose in writing the letter was to prevent defendant's permanent transfer to New York. The president of the railroad wrote plaintiff and demanded an investigation. Subsequently, the vice president of the railroad came to Portland to discuss defendant's extra-marital affair, word of which had reached Kansas City. Plaintiff testified he had been told during the ensuing discussions that the vice president planned to fire defendant. Defendant thereafter returned from New York and met with plaintiff and other members of the Portland office to discuss the complaint letter and the woman who wrote it.

Plaintiff testified that when he asked defendant to vindicate the office, defendant became extremely defensive and angrily stated:

"I will write a letter. That's all I'll do. If you continue to pursue the matter, I'll get you. I have the connections in Kansas City. You do not. I don't care anymore. I am about to tell this damn outfit to go to hell anyway."

Plaintiff construed this statement to mean defendant would cause him future difficulty with the company. Subsequently, defendant wrote a letter to Kansas City stating that the complaint letter had been a mistake.

After this incident the relationship between plaintiff and defendant progressively deteriorated. Plaintiff testified that although he was working 14-16 hours per day and on weekends, nothing he did pleased defendant; he stated that defendant criticized him for spending too much time out of town and then criticized him for spending too much time in the office.

In the fall of 1975, a profit incentive plan was implemented by the company which required employees to complete profiles of their accounts together with business forecasts and goals by December 31, 1976. Plaintiff testified that defendant rejected all his incentive plan reports and that his complaints were unjustified. Defendant, however, testified that plaintiff's reports were incomplete and that plaintiff was unable to cope with the demands of his job. Defendant prepared evaluations of plaintiff's on-the-job performance for the head office, rating plaintiff as "marginal" in all but one category. Plaintiff testified that these evaluations were false.

In December, 1976, a company meeting was held in Kansas City in which both plaintiff and defendant were required to present their incentive plan profiles. Plaintiff testified that defendant needed plaintiff's assistance to complete his own reports. No one at that meeting criticized plaintiff's work performance. Nevertheless, in January, 1977, based on defendant's recommendation, plaintiff was given 90 days notice of termination. Defendant testified that, although he himself lacked the power to hire or fire, plaintiff would not have been fired without his recommendation. Shortly thereafter, plaintiff's attorney sent a letter to Kansas City to explain plaintiff's side of the story. Five days later, defendant instructed plaintiff to clear out his office and not to return. Defendant then notified the railroad president that he heard from various accounts of plaintiff's that plaintiff was attempting to divert business from KCS. Plaintiff denied any such activity.

There was evidence that because of defendant's actions plaintiff suffered loss of employment, damage to his reputation and emotional injury. At the time of plaintiff's termination he was earning approximately $18,000 per year; from the time of his dismissal until trial he was unemployed. He was dismissed one month short of 30 years service, thereby preventing him from receiving a railroad pension.

We conclude that there was evidence from which the jury could find that plaintiff and defendant...

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