Surrency v. Harbison

• Decision Date: 25 April 1986
• Docket Number: NALLY-PITTSBURG
• Parties: Bill SURRENCY and McNally-Pittsburg Manufacturing Corporation v. Willis J. HARBISON. Willis J. HARBISON v. McMANUFACTURING CORPORATION and Bill Surrency. 84-857, 84-900.
• Court: Alabama Supreme Court

Page 1097

489 So.2d 1097

Bill SURRENCY and McNally-Pittsburg Manufacturing Corporation v. Willis J. HARBISON.

Willis J. HARBISON v. McNALLY-PITTSBURG MANUFACTURING CORPORATION and Bill Surrency.

84-857, 84-900.

Supreme Court of Alabama.

April 25, 1986.

Eugene P. Stutts and Mac B. Greaves of Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellants/cross-appellees.

Thomas A. Carraway and Charles F. Carr of Rives & Peterson, Birmingham, for appellee/cross-appellant.

BEATTY, Justice.

This is an appeal by defendants McNally-Pittsburg Manufacturing Corporation (McNally) and Bill Surrency from a judgment based on a jury verdict in favor of plaintiff, Willis J. Harbison, and a denial of a motion for new trial or judgment notwithstanding the verdict. Harbison cross-appealed from the grant of a directed verdict against him on his outrageous conduct count. We reverse as to the defendants' appeal and remand for new trial on the assault and battery claim, and affirm as to plaintiff's cross-appeal.

In his complaint, Harbison alleged, among other causes of action, assault and battery, defamation, conspiracy, and outrageous conduct. The trial judge entered a directed verdict in favor of McNally and Surrency with respect to all allegations except one incident involving slanderous comments made during a grievance hearing and one incident involving an alleged assault and battery occurring inside a clarifier machine. These two occurrences were submitted to the jury for its consideration. Following the $120,000 verdict for the plaintiff, the trial judge entered an order stating that if plaintiff Harbison did not accept a remittitur of damages to $80,000 by April 26, 1985, then the defendants' motion for new trial or judgment notwithstanding the verdict would be granted. A remittitur to $80,000 was subsequently entered. Both plaintiff and defendants appeal.

From 1975 to 1979, McNally constructed a coal preparation plant for Jim Walter Resources at the Brookwood Mine facility near Tuscaloosa, Alabama. McNally had a collective bargaining agreement with the United Mine Workers of America (UMWA), Local 1867, which contained a provision stating that all disputes and claims arising under the agreement should be resolved through the grievance procedure set out in the agreement.

Harbison was employed by McNally in July 1975 as a painter on the Brookwood Mine project, and all apparently went well for Harbison until 1978.

In February 1978, Joe Bowman, the McNally project superintendent, asked Harbison, in his position as grievance committee chairman, to review a set of working rules sent by the company to determine whether the rules coincided with the contract. John Jeter, the McNally labor relations director, disagreed with the corrections and additions made by Harbison. At this time, according to Harbison, his relationship with Bowman began to deteriorate.

Shortly after the aforementioned incident, Bob Keller, a McNally foreman, stopped Harbison and put a copy of a warning slip into Harbison's shirt pocket. Harbison removed the slip from his pocket and tore it up. ¹ The next day, Bowman called Harbison into his office and, according to Harbison, cursed him for destroying the warning slip. When Harbison started to leave the office, Bowman allegedly knocked his hand off the door, shoved Harbison against the wall, and said, "You're not going anywhere."

A few days later, James Watson, a McNally supervisor, confronted Harbison about his involvement in a work stoppage. Harbison told Watson that he had played no part in it. According to Harbison, during their discussion, Watson leaned on him and bumped him with his chest and stomach in a threatening manner.

On still another occasion about this same period of time (early to mid-1978), Bowman ordered Harbison to paint under a truss that was suspended by a crane. Harbison complained about the danger that the cable could break. Bowman allegedly said that if the truss fell on Harbison it would be the happiest day of his (Bowman's) life. The truss was put on blocks, in accord with usual procedure, before Harbison finally painted it.

In September 1978, Harbison and his brother, Earnest, were talking at the job site when Ron Parchman, another McNally employee, allegedly approached both and began cursing Earnest. Harbison asked Parchman to refrain from cursing Earnest, whereupon Parchman began cursing Harbison, who then turned to walk away. At this point, Bowman came up and warned Harbison and Parchman to cease their argument and to refrain from cursing each other.

The following day, Harbison says, he was drinking coffee when Parchman shoved him and caused him to spill coffee on another employee. In response to this shoving, Harbison filed a safety grievance with McNally, claiming that he was not being afforded a safe place to work, and he withdrew from the job.

Subsequently, a safety grievance hearing was held at the McNally office. Those in attendance included the UMWA safety inspector, a UMWA district representative, the president of the local UMWA, a safety committeeman, Bowman, Parchman, and Surrency (another McNally employee). The purpose of the meeting was to resolve the grievance filed by Harbison with respect to the shoving incident. Harbison's witnesses testified that, during the course of the grievance hearing, Bowman was responding to the reason for the problems involving Harbison and allegedly commented that he did not want Harbison on the job because Harbison was a homosexual and had "made a pass" at Surrency or Parchman. The witnesses contradicted each other in their statements as to whom Harbison had directed his attentions to. All of the witnesses for McNally and Surrency denied that these alleged comments were ever made.

Harbison continued to work as a painter for McNally until he, along with 70 other employees, was laid off pursuant to the collective bargaining agreement. Harbison went to work for Vulcan Painters (Vulcan) in December 1979. McNally had subcontracted all painting at the Brookwood mine to Vulcan, so Harbison was continuing to perform for Vulcan work similar to that which he had done for McNally.

Meanwhile, McNally had constructed a "clarifier," which was used to wash and separate coal after it was mined. Before the clarifier could be put into operation, the arms (or rakes) used to wash the coal had to be leveled, calibrated, and painted. The calibration involved movement of the arms by the operator at the control switch as well as measurements taken by two other employees, Olin Kelly and Charles Nix. The arms were not to be moved without an instruction given by John McDermick, a non-employee in charge of the calibration process, together with a warning shouted by Nix or Kelly to "stand clear." All witnesses testified that the arms moved very slowly. In fact, the rate of speed was established at 22 minutes per revolution. McNally and Surrency presented witnesses who testified that even if the arms hit a person he would not be hurt.

During the calibration process, Harbison claims, he was inside the machine painting when, without warning, the arms moved and one arm hit him on the back and the head. He said he looked up and saw Surrency sitting at the controls. Surrency had not operated the controls of the clarifier before. After he was struck, Harbison screamed at Surrency, who allegedly replied, "Withdraw you son of a bitch." Nix and Kelly heard Harbison yell, but testified that they did not know what happened. There is some dispute as to whether the arm actually moved. Harbison testified that, despite having been hit in the back and head, he was not hurt.

Additional importance was placed on the clarifier incident by Harbison, who offered evidence of two other incidents. First, Harbison offered testimony through a witness that management people at McNally had offered $15,000 to three people "to take care of" some troublemakers. This witness also testified that it was understood at the job site that Harbison was a troublemaker. In addition, one of Harbison's witnesses testified that on the morning before the clarifier incident he heard Bowman say, "We have to get the redhead son of a bitch off the job. Lay off, whatever you do, just get him off."

Numerous issues are raised in both sets of briefs; however, we find only the following issues to be controlling:

(1) Whether the trial court erred in refusing to grant defendants' motion in limine requesting that plaintiff be precluded from testifying that he was a minister.

(2) Whether the slander claim or the assault and battery claim is preempted under either the National Labor Relations Act or the collective bargaining agreement.

(3) Whether Harbison established the necessary elements of assault and battery.

(4) Whether the trial court erred in charging the jury on the requirement of proving willfulness and wantonness in order to recover punitive damages for assault and battery.

(5) Whether the trial court erred in entering a directed verdict in favor of the defendants on the plaintiff's claim of outrageous conduct.

I. MOTION IN LIMINE

McNally and Surrency urge this Court to find that the trial court erred in refusing to grant their motion in limine requesting that Harbison be precluded from testifying that he was a minister. They argue that this testimony had nothing to do with his lawsuit and that this testimony could have prejudiced the jury against them.

Questions as to relevancy of testimony are ordinarily within the discretion of the trial court and its rulings will not be reversed on appeal unless its discretion has been grossly abused. See May v. Moore, 424 So.2d 596 (Ala.1982) (motion in limine); Costarides v. Miller, 374 So.2d 1335 (Ala.1979); and Harper v. Baptist Medical Center-Princeton, 341 So.2d 133 (Ala.1976). We find no such abuse of discretion. In addition, we note that the testimony elicited from Harbison concerning his occupation was presented during the standard line of...