Bakker v. Baza'r, Inc. , 275 Or. 245 ( 1976 )

HOWELL, J.

Plaintiff filed an action for assault and battery and the intentional infliction of emotional distress against defendant. After a jury verdict in plaintiff’s favor for general and punitive damages, the trial court conducted a supplemental hearing and found that plaintiff’s cause of action for damages was barred by the Workmen’s Compensation Law. Judgment was entered for defendant, and plaintiff appeals.

Plaintiff was employed by the defendant. On July 18, 1973, while at work, plaintiff was approached by a security officer who was also employed by defendant. The security officer opened a shopping bag held by plaintiff and removed some clothing. In doing so, she came in contact with plaintiff, who became extremely upset. This distress caused plaintiff to seek medical and psychiatric treatment.

On August 7, 1973, plaintiff filed a claim with the State Accident Insurance Fund. In responding to a question on the form, "How were you injured?”, she stated, "Battery — Accusation of Felony or theft in presence of public and fellow employees.” Approximately one month later plaintiff filed an action for damages against defendant alleging an assault and battery and an intentional infliction of emotional distress.¹

After plaintiff’s civil complaint had been filed, defendant filed an employer’s report in response to plaintiff’s compensation claim. In its report, her employer claimed, "There was no accident,” and, as to details, stated:

"Apparently [plaintiff] became upset when our store detective asked her to reveal the contents of a sack she was carrying out of the store.”

On October 24,1973, plaintiff’s compensation claim was denied by a claims examiner in a letter which stated that plaintiff’s "problem” did not arise out of, nor in the course of, plaintiffs employment with defendant. The letter also advised plaintiff that she was entitled to request a hearing if she did so within 60 days. On November 29, 1973, defendant filed an answer to plaintiff’s civil complaint.

During the trial of the civil case in September, 1974, defendant’s counsel advised the court that he had learned of the plaintiff’s filing for workmen’s compensation. After a brief discussion, the trial court advised both counsel that, if the jury returned a verdict for plaintiff, defendant could file a supplemental answer alleging workmen’s compensation as a defense. Following the verdict for plaintiff, the trial court held a hearing on the supplemental answer and concluded that plaintiff was restricted to workmen’s compensation.

The threshold question for decision is whether a battery was committed against plaintiff by defendant’s employee. If no battery occurred, then defendant’s motion for a directed verdict should have been allowed, and we need not consider plaintiff’s assignments of error.²

The incident occurred shortly before closing time on July 18, 1973. Plaintiff had a large J.C. Penney store sack containing a pantsuit she had brought from home and some T-shirts which she had purchased from a fellow employee. Plaintiff stopped to talk to another employee when the security officer came up to plaintiff and said, "What have we got here?” or "What have we got in the sack?” According to plaintiff, the security officer had her feet between plaintiff’s, touching plaintiff. She reached over plaintiff’s shoulder, pulled out the top of the pantsuit and, in doing so, brushed against plaintiff. After removing part of the pantsuit, the security officer started to reach into the sack again. However, plaintiff pushed her hand away and removed the T-shirts, as well as the rest of the suit, and showed them to the officer. Plaintiff became extremely upset over the incident, both at the time it occurred and later. Her distress eventually caused her to secure medical treatment.

To constitute liability for a battery, the conduct which brings about the harm must be an act of volition on the actor’s part, and the actor must have intended to bring about a harmful or offensive contact or put the other party in apprehension thereof. 1 Harper & James, The Law of Torts 215-17, § 3.3 (1956). It is not necessary that the contact do actual physical harm — it is sufficient if the contact is offensive or insulting. Prosser, Law of Torts 36, § 9 (4th ed 1971). Therefore, on the basis of the evidence outlined above, we find that plaintiff did make out at least a prima facie case of battery. Correspondingly, defendant’s motion for a directed verdict was properly denied.

Plaintiff’s first assignment of error is that the trial court erred in denying plaintiff’s motion to strike defendant’s motion for a judgment n.o.v. or, in the alternative, for a new trial. Plaintiff argues that defendant’s motion was not timely filed. However, the trial court eventually denied defendant’s motion, and therefore, regardless of the merits of the plaintiff’s argument, the issue is now moot.

Plaintiff’s next assignment of error is that the trial court erred in allowing defendant to file a supplemental answer which alleged that plaintiff’s injuries were compensable under the Workmen’s Compensation Law and, therefore, that plaintiff’s civil action was barred.

The circumstances surrounding the filing of the supplemental pleading were somewhat unusual. During the second day of the trial, defendant’s attorney informed the court, out of the presence of the jury, that he had learned that plaintiff had previously filed a claim for the same injuries under the Workmen’s Compensation Law.³ Defendant wanted the court’s permission to ask about this matter during his cross-examination of the plaintiff which was about to commence. However, the matter raised was a legal defense and was not a factual matter to be considered by the jury. Therefore, after some discussion, the court decided to proceed in the following manner:

"I think that what we should do is this, that in the event that there is a plaintiff’s verdict in this case, you can petition the Court to file a supplemental answer and that can be adjudicated as a separate legal defense just as we pre-adjudicate it in many of the cases.”

Following the jury’s verdict for plaintiff, defendant’s supplemental answer was submitted to the court and filed along with a memorandum of law in support thereof. Subsequently, a hearing was held on its merits, and the trial court eventually ruled in defendant’s favor.

Plaintiff now argues that the trial court erred in permitting defendant to file its supplemental answer. Specifically, plaintiff contends that the facts alleged in the supplemental pleading did not arise after the prior pleadings had been filed and were not newly discovered by the defendant employer. Plaintiff also argues that no motion or petition for leave to file the supplemental answer was ever made to the trial court and, therefore, that the court’s discretion to allow the filing of the supplemental answer was never properly invoked.

Plaintiff’s counsel did not object to this method of proceeding on any grounds during the trial when this procedure was first considered and adopted by the trial court. Nor did he object during the subsequent hearing on the supplemental answer, except to note that there was a question as to the timeliness of the supplemental answer.⁴ Moreover, plaintiff did not move to strike the supplemental answer on the basis of the timeliness issue. Under such circumstances, we would be justified in declining to consider these alleged procedural defects any further on the grounds that plaintiff has not adequately protected her rights on appeal. See State v. Hickmann, 273 Or 358, 359-60, 540 P2d 1406 (1975); Wood Ind’l Corp. v. Rose, 271 Or 103, 530 P2d 1245 (1975); Crawford v. Jackson, 252 Or 552, 451 P2d 115 (1969).

However, we also note that on at least two previous occasions defendant employers have been allowed to raise the exclusive remedy provision of the Workmen’s Compensation Law in the form of a supplemental answer.⁵ Such a procedure closely parallels that specifically provided for in ORS 656.595(3) for raising similar challenges to an individual’s right to bring a civil action against a third party for work-connected injuries.⁶ It is also in accord with our decision in Bibby v. Hillstrom, 260 Or 367, 490 P2d 161 (1971). In Bibby we held that, in order to avoid prejudice to the plaintiff’s case in a civil action for assault and battery, the defendant’s right to offset a compensation award for the same injuries should be litigated

"by the use of supplemental pleadings after a trial by the jury of the issues of defendant’s liability and the extent, if any, of plaintiff’s total damages. * * * In a situation where plaintiff’s claim for compensation has not been finally disposed of at the time of trial, the matter of the ultimate judgment must necessarily be held in abeyance for subsequent determination by the court since it could not be determined by the jury.” 260 Or at 370-71.

Moreover, considering the particular circumstances under which the applicability of the workmen’s compensation bar was raised in this case, the method of procedure adopted by the trial court appears to have been at least as appropriate as any other available method of proceeding. Since the jury had been selected and the testimony had already begun, the court could have recessed the case, held a hearing on the supplemental defense or, as the court did, postpone the hearing on the supplemental defense until after a verdict. Since the necessity of any hearing at all would have been obviated by a verdict for the defendant, we do not find that the trial court abused its discretion in adopting the method followed in this case for adjudicating the issues raised by the defendant in its supplemental pleading. Cf. Bibby v. Hillstrom, supra:

"It is our opinion that any claim of offset for money paid to plaintiff under the benefits of the Act must be determined by the trial court with the use of supplemental pleadings and proceedings, the exact character of which must be tailored by the trial judge to the circumstances involved.” 260 Or at 372.

It is also significant that in this case plaintiff does not appear to have suffered any significant prejudice as a result of defendant’s delay in asserting the defense raised in the supplemental answer. Similarly, plaintiff is not in a position to claim that she was unfairly surprised by the delay in asserting the supplemental defense since she herself was responsible for initiating her compensation claim under the Workmen’s Compensation Law.

Plaintiff also argues that the trial court erred in holding that plaintiff’s cause of action was barred by the workmen’s compensation defense raised by the supplemental answer. Plaintiff asserts that her remedies are not restricted by the Workmen’s Compensation Law because this case falls within the statutory exception appearing in ORS 656.156(2). That statute provides:

"If injury or death results to a workman from the deliberate intention of his employer to produce such injury or death, the workman, the widow, widower, child or dependent of the workman may take under ORS 656.001 to 656.794, and also have cause for action against the employer, as if such statutes had not been passed, for damages over the amount payable under those statutes.”

Apparently, plaintiff does not contend that her injury was the result of the "deliberate intention” of her employer "to produce such injury,” but only that her employer ratified the intentional tort of the store officer. Although the trial court did find that the defendant employer had ratified the actions of the store officer, the court apparently concluded that such a ratification was insufficient to bring this case within the statutory exception set forth above. We agree with this conclusion.

This court has consistently adhered to a strict construction of this statutory exception. See, e.g., Caline v. Maede, 239 Or 239, 396 P2d 694 (1964); Heikkila v. Ewen Transfer Co., 135 Or 631, 297 P 373 (1931); Jenkins v. Carman Mfg. Co., 79 Or 448, 155 P 703 (1916):

"We think by the words 'deliberate intention to produce the injury’ that the lawmakers meant to imply that the employer must have determined to injure an employee and used some means appropriate to that end; that there must be a specific intent, and not merely carelessness or negligence, however gross.” 79 Or at 453-54.

It should be apparent from the facts in this case that plaintiff’s injury did not result from the "deliberate intention” of her employer as that term has been interpreted by this court. In this case there is no evidence that the defendant employer ever intended to injure anyone. Moreover, unless the injury "results” from the employer’s conduct, the injured employee’s cause of action does not fall within the statutory exception set forth in ORS 656.156(2). It is difficult to see how any injury could be said to result from a subsequent ratification of the tortious conduct which produced it. Similarly, a subsequent ratification of the tortious conduct cannot evidence a "deliberate intention * * * to produce such injury,” since, necessarily, the ratification occurs after the injury has been sustained. Thus, we conclude that plaintiff has not brought herself within the statutory exception set forth in ORS 656.156(2).⁷

Finally, plaintiff contends that the defendant should have been estopped from asserting the plaintiff’s injuries were compensable, and thereby raising the bar of the Workmen’s Compensation Law, because, when previously responding to plaintiff’s workmen’s compensation claim, defendant took the position that plaintiff had not suffered a compensable injury. Plaintiff cites Johnson v. Dave’s Auto Center, 257 Or 34, 476 P2d 190 (1970), for this proposition. However, although the issue which plaintiff now raises was argued in that case, the question was not resolved by that decision. See 257 Or at 48.

In this case, as in Johnson, there had been no final adjudication of the compensation claim prior to the trial of the civil case. In Johnson, the claim had been settled in accordance with the provisions of ORS 656.289(4). In this case it was stipulated at trial that although plaintiffs compensation claim was initially denied by defendant’s insurance carrier, a hearing on the matter had been requested and was still pending. Therefore, the disposition of plaintiff’s compensation claim was not yet final at the time the civil action was tried. Moreover, the record discloses that plaintiff filed her civil action before defendant took any action to contest her compensation claim. Thus, plaintiff would not seem to be in a position to assert that she either abandoned her compensation claim or initiated this civil action in reliance on defendant’s position that she had not suffered a compensable injury. Under these circumstances, we do not believe that there is any evidence that plaintiff changed her position or suffered any detriment in reliance on defendant’s actions in contesting the compensability of her claim. See Wilford v. Sigmund Eisner Co., 13 NJ Super 27, 80 A2d 222 (1951); Ham v. Gouge, 214 Pa Super 423, 257 A2d 650 (1969).

We also note that defendant’s initial position with respect to plaintiff’s compensation claim is not necessarily inconsistent with the position defendant took at the trial of the civil action. As evidenced by the "Workmen’s and Employer’s Report of Occupational Injury or Disease” which was filed in response to plaintiff’s compensation claim, defendant’s original position was that plaintiff had not suffered a compensable injury because "there was no accident.” Defendant further explained this position on the same form: "Apparently she became upset when our store detective asked her to reveal the contents of a sack she was carrying out of the store.” These statements are not inconsistent with the position defendant took at the trial which was, essentially, that plaintiff had not suffered either a battery or the intentional infliction of mental distress. Nor are they inconsistent with defendant’s supplemental answer which alleged that any injuries which plaintiff suffered arose out of her employment and were compensable under Workmen’s Compensation. Although we recognize that defendant’s supplemental answer is inconsistent with the position taken by defendant’s compensation carrier when denying plaintiff’s compensation claim,⁸ we do not believe that the position taken by the compensation carrier in a proceeding which was not yet finalized should bind the defendant in a subsequent action to determine defendant’s civil liability. Therefore, we find no basis in this case for the application of any form of estoppel against the defendant employer. Compare Wilford v. Sigmund Eisner Co., supra, and Ham v. Gouge, supra, with Sunlight Coal Co. v. Floyd, 233 Ky 702, 26 SW2d 530 (1930), and Welser v. Ealer, 317 Pa 182, 176 A 429 (1935). Cf. Hansen v. Hayes, 175 Or 358, 154 P2d 202 (1944); Harrell v. Horton, 401 P2d 461 (Okla 1965).⁹

In summary, we conclude that the procedures followed by the trial court in this case were proper. We also conclude that the court was correct in determining that plaintiff’s injuries were compensable and that plaintiff is therefore restricted to the remedies provided by the Workmen’s Compensation Law.

Affirmed.

1 The latter allegation is not involved in this appeal, since the jury found in favor of plaintiff on the assault and battery count alone.

2 The plaintiff argues that we cannot consider whether plaintiff’s evidence of a battery was insufficient because defendant has not filed a proper cross appeal. Defendant has raised the question in its brief, and it was not necessary, the defendant having received a favorable judgment, for defendant to have filed a cross appeal. See Artman v. Ray, 263 Or 529, 501 P2d 63, 502 P2d 1376 (1972).

3 "ME. ACKER: Your Honor, what I wanted to bring up is, I have a problem relating to some questions I intend to ask the plaintiff, but I thought I should make Court and counsel aware of the questions.

"The question concerns the fact that it’s been, it has come to my attention that the plaintiff in this case has filed a Workmen’s Compensation Claim for this same injury. Now, I don’t have any, it wasn’t covered on deposition and I don’t, but my intention would be to simply ask the plaintiff if, in fact, that claim has been made, the reason being that if, in fact, a claim has been made, then I would then be asserting this as a defense on the grounds that is an exclusive remedy under the Workmen’s Compensation Act.”

4 This issue was raised by way of argument during the supplemental proceeding:

"MR. TORAN: Just with respect to the Supplemental Answer, Your Honor, first of all, we think that the Answer comes a bit late in the trial. I understand it was, that the issue was raised in the course of trial, but I believe it was raised at the time the defendant was putting on his own case. It seems to me there is a real question of timeliness in this case.

"With respect to the Supplemental Answer, itself, I do not believe it alleges sufficient facts to raise any issue as to whether or not there was unprovoked aggression or not. I think the Answer, itself, is insufficient to establish a defense.”

5 See Cornelison v. Seabold, 254 Or 401, 460 P2d 1009 (1969); Bandy v. Norris, Beggs & Simpson, 222 Or 1, 342 P2d 839 (1959), 351 P2d 445 (1960).

6 ORS 656.595(3) provides as follows:

"A challenge of the right to bring such third party action shall be made by supplemental pleadings only and such challenge shall be determined by the court as a matter of law.”

7 See also 2A Larson, The Law of Workmen’s Compensation Law § 68.21 (1976):

"* * * Unless the employer has commanded or expressly authorized the assault, it cannot be said to be intentional from his standpoint any more than from the standpoint of any third person. Realistically, it to him is just one more industrial mishap in the factory, of the sort he has a right to consider exclusively covered by the compensation system.”

8 The letter from the compensation carrier denying the claim contained the following:

“Our investigation reveals that any problem from which you may now be suffering did not arise out of, nor in the course of, your employment with Bazar, Inc. Therefore, on behalf of your employer, Bazar, Inc., and their insurance carrier, Industrial Indemnity Company, your claim is respectfully denied.”

9 Plaintiff also contends that the first judgment was set aside after the court’s power to make such an order had expired. However, the hearing was held and the first judgment was set aside within two months of the time it was entered. We believe that this constitutes a reasonable time after the entry of the initial judgment. See Braat v. Andrews, 266 Or 537, 514 P2d 540 (1973); Koennecke v. Koennecke, 239 Or 274, 397 P2d 203 (1964). Therefore, we find no abuse of discretion. See Bailey v. Steele, 263 Or 399, 502 P2d 586 (1972); Morphet v. Morphet, 263 Or 311, 502 P2d 255 (1972). See also ORS 1.055.