No. 86-543

INTHE SUPREME COURT OF THE STATEOF MONTANA
1987

GREG J. STARK, Plaintiffand Respondent,-vsTHE CIRCLE K CORPORATION,
Defendant and Appellant.

APPEAL FROM: DistrictCourt of the Second JudicialDistrict, In and for the County of SilverBow, TheHonorable FrankM. Davis,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Milodragovich,Dale & Dye;Kim L. Ritter, Missoula, Montana Streich, Lang,Weeks & Cardon; LawrenceA. Katz argued, Phoenix,Arizona

For Respondent: Lynch & Best; JohnF. Lynch argued,Great Falls, Montana

Submitted: October 21, 1987



### MhR

### 1' 1986, Filed: Decided: March 1, 1988

Clerk6.Justice John C. Sheehy delivered the Opinion of the Court.

Circle K Corporation appeals from a jury verdict from the Second Judicial District, Silver Bow County. The jury awarded Greg Stark (Stark) $200,000 compensatory and $70,000 punitive damages for breach of the implied covenant of good faith and fair dealing relating to his termination. We affirm. Circle K presents the following issues for our review: 1. Was there sufficient credible evidence to support a jury verdict finding a breach of the covenant of good faith and fair dealing in the termination of Stark's employment? 2. Was there substantial credible evidence for the jury to properly award $200,000of compensatory damages? 3. Did the DistrictCourt improperly allow the economic damages summary to be submitted into evidence after settlementof instructions? 4. Was there sufficient credible evidence to support the award ofpunitive damages? Stark graduated from Butte High School in 1973. He had no other vocational or educational training. Following two years ofmilitary service,Starkheld several jobs, including two in the retail grocery business. On December 22, 1981, Stark applied for a job with Circle K in Butte. The applicationprovided: I further understand and agree that

# .

# . . subsequent to being employed, 1 may be dismissed with orwithout cause. Circle K subsequently hired Stark at minimum wage as a. clerk on December 29, 1981. Circle K's opinion of Stark's ability was manifested by a number of promotions and salary increases. On April 24, 1982,he was promoted to assistantmanager in Butte and received a wage increase. On June 14, 1982,he received another wage increasebecause he 

### "[worked] hard on the job and isan asset to the company." On July 19, 1982, he was promoted from assistant manager to acting manager in Butte and later, Anaconda. He was promoted to "exempt" status manager and given another raise to $1,000per month on Novenlber 1, 1982,because Stark had been "doing a good job" and had "good inventory." Positive job evaluations resulted in continued pay increases until he waspromoted to

zonemanager on November 1, 1983. As a zonemanager, Stark was responsible for supervising eight stores located in Butte, Helena, Townsend, and Anaconda. He held the position of zone manager up to the date of his termination from Circle K on August 22, 1984. His earnings had increased to approximately $17,000 per year at that time. Inaddition,Stark also received a company car which hevalued at approximately $3,000per year. During the course of Stark's employment, his job performance was regularly evaluated. He was consistently rated as very good to superior in the company's performance review appraisals. Stark's rating as the number one zone manager in the district reflected his abilities and achievements. On April 1, 1984, Don Herring was promoted from zone manager to district manager of the Great Fallsdistrict. As such, he supervised four zone managers and was responsible for 25 stores. Herringperformed the evaluations of his zone managers. He rated Stark ashisbest zone manager. However, Herring soon became alarmed about inventory shortages reported by the district stores. During conferences in Great Falls with the four zone managers, inventory controlwas discussed. Herring alsobrouqht in,atsome point, a new inventory person he had formerly worked with in Oregon. Preliminary inventory data for the month of August indicated a significant inventory loss at three Butte stores in Stark's zone. Herring requested that Stark meet him in Helena on August 14, 1984. Prior to the meeting, Herring prepared a written document entitled "Employee Counseling Report." Thisdocument,datedAugust 15, 1984,stated: Your inventory's [sic] in three stores are over S4,000 short, this is totally unacceptable. You are being put on 30 dayprobation, during this time Iwould expect you tomake every effort to correct the situation. Herring had Stark read the report and requested that he sign. Stark refused to sign because he felt the reportwas unfair and inaccurate. Stark stated the report was inaccurate because the new inventory person brought in by Herring was not conducting the inventories properly. Stark also informed Herring that the report was unfair because othermanagers in the districthad similar shortagesandwere not written up. Herring indicated he would look into the matter. Themeeting ended at thispoint. A few days later, Stark attended the usual manager's meeting in Great Falls. Herring did not mention the report

or the inventory shortage at this time. On August 22, 1984, Herring and Stark again met in Helena and Herring once more offered the report to Stark to sign. Stark again refused and

was terminated for insubordination relating tohis refusal to acceptresponsibility for the inventory shortage. The parties disagree as towhether Herring had planned, prior to the refusal on August 22, 1984, to fire Stark. Herring testified he had no intentionof firing Stark unless Stark refused to sign the report the second time. The evidence showed that Herringhad Stark's finalpay checkwithhim. In addition,Herring brought another zone manager with him from Great Falls to drive Stark's company vehicle. The other zone manager was dropped off at a near-by coffee shop just prior to the Stark-Herringmeeting. At trial, the amount of inventory shortagewas strongly contested. Although Herring had indicated at theAugust 14, 1982, meeting, that he would check into the figures, he failed to do so. Stark indicated at trial that he had rechecked the figures and found significant discrepancies. Large inventory overages in the three Butte stores for September tend to support Stark's allegation. The parties also contest whether the terminationwas in accordwith Circle K policy. At the time in question,Circle K had published a pamphlet setting forth company policy entitled "ZoneManager's Guide." The guide required, inter alia, consistent discipline, progressive discipline, and written rules which are well-known to the employees. This type of discipline was designed to "provide guidelines for conduct and a set of expectationswhich an employee may rely upon." Punishment should "accuratelyreflect the nature and seriousness of the proven offense znd the employee's prior record.

### " Herring admitted the policy guide also applied to a district manager disciplining a zone manager. Concerning termination,the guideprovides: Termination and the Issueof "Just Cause" 

### -- 

### -- Unemployment compensation is oftenrewarded because the employer has failed to produce evidence of "just cause". That is, was this employee terminated for a reason related to misconduct, negligence on his or her part, which despite efforts by the employer could not be corrected?
When you have decided to terminate the employee, consider the followingquestion:

## * Was the employee informed in writing of the rule orpolicy related to this offense? 

## * Has the employee been warnedpreviously? 

## * Was thiswarning inwriting? 

## * Do Ihave all the facts? 

## * Was a final warning issued? 

## * Should I check with the DistrictManager before taking action? 

### * Have all employes guilty of this violation received the samepenalty? Documentation Employees are legally entitled to fair treatment. In the event of an arbitration dispute, it is frequently the employer who must present evidence to support their actions. This evidence comes in the form of written warnings, reviews, and/or termination reports. Without written support, judgments frequently arerendered in the employee's favor

# . Make certain that you document. any disciplinary actions taken or problems experienced with your employees. Be specific. "Failure to follow company policy" is not sufficient. What policy? Was the employee warned? Are yourwarnings signed by the employeeas well as the Zone Manager? Be thorough, be fair, and be professional. Disciplining for results is a skilled activity. Although Herring indicated that he had counseled Stark

on prior occasions, the August 15, 1984 employee counseling report indicates that it was the initial counseling session. Starkdenied that therewasprior counseling. Herring also testified that an employee does not have the right to refuse to sign a counseling report he or she deems incorrect. Stark indicated that companypolicy allowedan employee to refuse to sign an inaccurateorunfair report. The testimonyofAlan Brown,CircleK'spersonnel expert,and Jim Estes, a CircleK employeeand Stark's former supervisor, tends to support Stark's position. Stark also testified that other zone managers had inventory shortages in excess of $2,000 for two or more months without receiving an employee counselingreport. The evidence confirmed Stark's testimony. Those managers were also locatedwithin the GreatFallsDistrict. Near theend of Stark's case in chief,Joseph Kasperick,

abusiness and economicsprofessor atMontana Tech, testified concerning Stark's damages. Professor Kasperick testified, inter alia, that his calculationswere based on national and state data concerning average work life, interest rates, price increases, and cost of living increases; that he had interviewed Stark; that he had examined Stark's tax records and pay slips; that his calculations were based on the assumption that Stark would live to the end of his expected work life and thathewould have held a jobwith similarpay; that the present value of the future difference betweenwhat Stark would have made and what he would make based on his current earnings is approximately $146,000; that Stark had suffered approximately $40,000 in foregone income to date; and that economic predictions were not exact. Counsel for CircleK did not object to Professor Kasperick's conclusions. ProfessorKasperick was cross-examinedby counseland damages

were argued during closing argument. Stark alsopresented an employment expert who testified similar jobs were not available in the Butte area. Following the adverse juryverdict, CircleKmoved fora judgment notwithstanding the verdict and a new *.rial. Both motionsweredenied. This appeal.followed.Circle K contends that there was insufficient evidence to support a finding of breach of the implied covenant of good faith and fair dealing. Thus, it is alleged the District Court improperly denied the motion for a judgment notwithstandingtheverdict. The standard of review is stringent. "The courtswill exercise the greatest self-restraint in interferingwith the constitutionally mandated processes of jury decision." Barmeyerv. Montana PowerCo. (19831,202 Mont. 185, 191,657 P.2d 594, 597. A judgment notwithstanding the verdict is proper only where the evidence presented demonstrates a complete absence ofproof in supportof theprevailing party. Jacquesv. Montana National Guard (1982), 199Mont. 493,504, 649 P.2d 1319, 1325. When examining the sufficiency of the evidence, the evidence and all inferences therefrom will be considered ina lightmost favorable to theprevailing party. Kukuchka v. Zien~et (Mont. 1985), 710 P.2d 1361, 1363, 42 St.Rep. 1916,1917. A courtwill not substitute its judgment for that of the jury. Evidence may be inherently weak and still be sufficient to uphold the juryverdict. Anderson v. Jacqueth (Mont. 1983), 668P.2d 1063, 1064, 40 St.Rep. 1451, 1453.Circle K contends the contractual provision providing that Stark could be terminated "with or without cause" overcomes this heavy burden andprecludes a findingofbreach of good faith and fair dealing. It is alleged that the written contractual provision allowing termination without

cause cannot be modified by oral representations which would give rise to a reasonable expectation of anything but "at will" employment. CircleKmisunderstands the nature ofgood faith and fair dealing. In Gates v. Life of Montana Insurance Co. (1982), 196 Mont. 178, 638 P.2d 1063 (Gates

### - I)

## ,we recognized that thecovenant of good faith and fair dealing is applicable to employment contracts. The covenant is implied as amatter of law based on the public policy of this State. It does not depend on contractual terms for its existence, nor is the covenant of good faith and fair dealing subject to contractual waiver, express or implied. See S 28-2-701(2)

## , MCA. "The duty arises out of the employment relationshipyet the duty exists apart from, and in addition to, any terms agreed to by the parties." Gates v. Life of Montana Insurance Co. (Mont. 1983), 668 P.2d 213, 214, 40 St.Rep. 1287, 1289 (Gates 

### - 11). Despite the express contract, the question of whether the "covenant of good faith and fair dealing is implied in a particular case depends upon objective manifestations by the employer giving rise to the employee's reasonable belief that he or shehas job security and will be treated fairly." Dare v. Montana Petroleum Marketing Co. (Mont. 1984), 687 P.2d 1015, 1020, 41 St.Rep. 1735, 1739. The record demonstrates Stark experienced objective manifestations reasonably giving rise to a belief of job security. Circle K repeatedly acknowledged Stark's positive input to the company. Stark received several promotions; his wages increased from minimum wage to $20,000 per year including benefits; he consistently received positive job evaluations; he was deemed "an asset to the company"; the company guide book indicated that generally employees should be terminated only after attempts to correct deficiencies; andAlan Brown indicated that Starkwas apermanent employee. We find the evidence considerably more than sufficient for the jury to find that Stark had an objectively reasonable belief thathewould be fired only forgood cause. In the alternative, Circle K argues that good cause did exist to fire Stark. Implicit in Circle K's argument is thecontention that an employer's determination of "good cause" is not subject to review by the jury. Circle K argues that the jury cannot decide "whetherHerring's instructions [were] fair or unfair, necessary or unnecessary;" that Stark must blindly obey the commands of a superior. We disagree. The implied covenant of good faith and fair dealing is designed to prevent the abuses of unfettered discretion inherent in a situation of unequal bargaining power. Dare, 687 P.2d at 1020, 41 St.Rep. at 1740. An employee is not required to leap at his masters every command. See Delaney

v. Taco Time International (Ore. 1984), 681 P.2d 114

(employee wrongfully terminated for refusal to sign false report concerning fellowemployee);Wagensellerv. Scottsdale Memorial Hospital (Ariz. 1985)

## , 710 P. 2d 1025 (hospital employee stated cause of action following discharge for refusal to take part in skit inwhichbuttocks are exposed); Tameny v. Atantic Richfield Co. (Cal. 1980), 610 P.2d 1330

(employeewho refused toparticipate in gasoline price-fixing wrongfully discharged); OISullivanv. Mallon (N.J. 1978), 390 A.2d 149 (x-ray technician cannot be discharged for refusal to perform catheterizations when the law requires such procedures be performed by a registered nurse or doctor); Trombetta 

### v. Detroit, Toledo & Ironton R. Co. (Mich. 1978), 265 N.W.2d 385 (recognizing potential cause of action for wrongful discharge resulting from refusal to falsify pollution control reports); and Peterman v. International Brotherhood of Teamsters (Cal. 1959), 344 P.2d 25 (employee cannot lawfully be discharged for refusal to commitperjury). We will not require an employee to sign a written statement he believes to be false so that an employer can later justify termination. An "employee is entitled to some protection from injustice." Gates I, 196 Mont. at 184, 638 P.2d at 1067. Although an employer isentitled to latitude in makingbusiness decisions, that latitude cannot be used as a facade to justify a breach of the covenant good faith and fair dealing. To rebut Stark's allegation, Circle K need only have shown a fair and honest reason for termination. Flaniganv. Prudential Federal Savingsand LoanAssoc. (Mont. 1986), 720 P.2d 257, 43 St.Rep. 941. Circle K apparently failed to do so,however. Contrary to CircleK's assertion,the jury,as the trier of fact,does determine whether good cause existed. Flanigan, 720 P.2d at 261, 43 St.Rep. at 946, Dare, 687P.2d at 1019, 41 St.Rep. at 1739. The jury is not bound by the employers explanation. SeeFlanigan,supra (employeeallegedly terminated aspart of reduction in force); Crenshawv. Bozeman Deaconess Hospital

(Mont. 1984), 693 P.2d 487, 41 St.Rep. 2251 (employee allegedly terminated for disrupting continuity of care, continually getting in the way of patient care, disorderly conduct, breach of confidentiality, etc.); Dare, supra

(employee allegedly terminated for refusing to clean designated areas,havingmen hang around the station,closing the station early, coming in late, and lack of responsibility). The casesabove indicate that theproffered reason does not always conformto the evidence. In the instant case, Herring's apparent lack of candor may have caused the jury to disbelieve Circle K's entire explanation. The record demonstrates that Herring was impeached on several matters, that his testimony conflicted with prior testimony given at an unemployment compensation hearing, and that his testimony conflicted with the documentary evidence. This situation led Judge Davis to comment: [Herring] was not a very good witness. I was restless and twisting in 

### my chair at the way he responded. I am wondering how that may have affected the jury.Circle K contends that the inconsistencies in Herring's testimony were only matters of opinion and not fabrication. We need not reach the issue. The jury as trier of fact, determines the credibility of a witness and the reason for termination. Flanigan, 720 P.2d at 261, 43 St.Rep. at 946. Herring's "apparent" lack of credibility is sufficient for the jury to find Circle K did not have a "fair and honest reason for termination." Flanigan, supra. The jury also could have found that Circle K failed to follow company policy as set forth in the Zone Managers Guide. We hold there is sufficient credible evidence to support the jury verdict. Circle K also contends the award of compensatorydamages is excessive and speculative because Professor Kasperick and the jury improperly assumed Stark would have remained with CircleK the remainderofhiswork life. We disagree. The standard of review for reversal requires a finding that the jury award is so grossly out of proportion as to shock the conscience. Frisneggerv. Gibson (1979), 183 Mont. 57, 598 P.2d 574. Where itappears that the jury did not act arbitrarily or capriciously, its decision on the amount of damages must stand. The litigants agree that the jury determined the amount of damages based on the testimony of Professor Kasperick. We do not find such a method of determination to be arbitrary or capricious. Section 27-1-203, MCA, provides that "damages may be awarded 

# .

# . . for detriment 

# . .. certain to result in the future." However, no person can foretell the future. In Frisnegger,we construed 5 27-1-203 to require that damages need onlybe reasonably certain. While no case in Montana has construed this statute,ithas alwaysbeen thepractice inMontana to instruct juries that futuredamagesneed only be reasonably certain, and not absolutely certain asthe statute seems to imply. Inholding, aswe do, that futuredamages need onlybe reasonably certain under the evidence, it must be granted that in determining an award for futuredamages, a jury,or an expert testifying on the subject,must to some degree engage in conjecture and speculation. When the conjecture and speculation is based upon reasonably certain human experience as to future events, the jury or trier of fact is entitled to rely on that degree of reasonable certainty in fixing and awarding future damages.
183 Mont. at 71,598 P.2d at 582. The record demonstrates that compensatory damages, as awarded by the jury, were "reasonably certain" within the meaning of Frisnegger. Professor Kasperick properly relied upon state and national data, Stark's records and interviews with Stark to derive input for his calculations. See Rule 703, M.R.Evid. (expert may base opinion upon facts or data made known to him at or before the hearing). Professor Kasperick then stated his conclusions and engaged in an exhaustive explanation of his methodology. The fact that Professor Kasperick relied upon Stark's hearsay statement that he planned to stay with Circle K is not dispositive. SeeAzure v. City ofBillings (1979),182Mont. 234, 596 ~.2d 460 (expertmay rely upon facts thatwould notbe admissible by themselves because they constituted hearsay)

# . It is not unusual for a person who has found success in a chosen profession to remain with a company until retirement. The jury, as trierof fact,apparentlyagreed. Circle K argues, in effect, that an award of 28 years lost income is per se excessive. We disagree. It is self-evident that the purpose of damages is to make an injured party whole. Stark presented evidence that similar work was not available in the Butte area and the amount of income he had lost as a result. Stark

### 's evidence went substantiallyunrebutted.Circle K did not object to Professor Kasperick's conclusion nor did it present its own expert on damages or employment opportunity. Circle K had the opportunity to cross-examine Professor Kasperick and to argue the amount of damages in closing argument. Jury instructions 7, 25 and 26 informed the jury theywere not to speculate and should only award reasonable damages. Under these circumstances,we do not find 28 years to be per se excessive. Stark presented sufficient credible evidence for the jury to find he would not be able to find comparable employment in Butte. We will not substitute our judgment for that of the jury. As the DistrictCourt indicated, "itwould be the height of judicial arrogance [forthe court] to substitute its own findings and beliefs for those [of the] tried and truewomen of the jury." The third issue before the Court concerns the admission into evidence of an economic damages summary. Following settlementof instructions, counsel for Starkmoved to reopen his case-in-chief and offered an economic damages summary into evidence. The document was admitted over Circle K's objection that testimonyhad closed. It has long been the rule in Montana that the propriety of a motion to reopen the case is left to the sound discretion of the trial court. Alderson v. Marshall (1888), 7 Mont. 288, 16 P. 576; Cole v. Helena Light & Railway Co. (1914), 49 Mont. 443, 143 P. 974;Brangev. Bowen (1920),57 Mont. 77, 186 P. 680. No rigid nor fixed formula can or should be employed to determine when a motion to reopen is proper. The trial court,which has a feel for the case,can best determine what is necessary and appropriate to achieve substantial justice. Absent a clearabuse ofdiscretion, the determination of the trial court will be upheld. Alderson, supra.In the instant case, the material contained within the economic damages summaryhad been thoroughlypresented during Stark's case-in-chief. Circle K was not unduly surprised by its contents. We find no abuse of discretion. See Brange, supra. Finally, Circle K contends there is an absence ofproof to support a verdict granting Stark punitive damages against CircleK and thereforea judgmentnotwithstandingtheverdict should have been granted. We find there is sufficient credible evidence touphold the jury verdict. At the time in question, 27-1-221, MCA, (1983), provided that punitive damages may be awarded where "the defendant has been guilty of oppression, fraud, or malice, actual or presumed

# . .

# ." In Flanigan, we recognized that the jury can infer malice from a lack of candor on the part of the employer. 720 P.2d at 265, 43 St.Rep. at 951. The apparent lack of candor on the part of Herring is sufficient for the jury tohave inferredmalice. The judgment of the DistrictC-ourtisaffirmed.

/ 

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We Concur:

Chief JusticeMr. JusticeL. C. Gulbrandson,dissenting.

Irespectfullydissent. The majority, in affirming the award of $200,000 compensatory damages to include 28 years of lost income in the future, and $70,000punitive seems to rely mainly on (a) objective manifestations of job security for Stark, (bl evidence of inaccurate inventory figuresused by Herring, and (c) lack of candor by Herring to infer malice sufficient to justify the punitive damage award. Any objective manifestations of job security given Stark by way of positive write-ups, promotions and salary increases were prior to the inventory shortages arising in the spring of 1984. From that time, until termination on August 22, 1984, there were no positive write-ups, commendations, or salary increases for Stark, but there were meetings, counsellings,and discussionsregarding the serious matter of major inventory shortages in the district. The inventory shortages supplied to Herring, as District Manager, indicated that Starkhad theworst inventory shortages of any zone manager in Herring's district. The actual inventory figures, for Stark's zone, supplied to Herring were: April



## -- $3,469.19 short;May

## -- $608.70 overage; June

## -- $1,340.44 short; July 

### -- $3,244 short; and preliminary August figures



## -- $6,750 short. The September overages obviously were not available until after Stark's refusal to sign the employee counseling report and subsequent termination on August 22. The majority opinion overlooks the fact that Stark was present during the inventories, made no objection to the figures, signed the inventories, and failed to implement the control inventory procedure if he thought the inventory figures were incorrect, even though he had participated in twenty-three inventories as a manager. The manner in whichStark was discharged, in my opinion, did not indicate any basis to submit the issue of punitive damages to the jury. The record is clear that both meetings between Herring and Stark took place in a private, secluded place with no other persons present. The discussions were limited to control of inventories and the request that Stark sign the counselling report. Herring testified that no other Circle K employee or manager had ever refused his request to sign the counselling report and the evidence is clear that Stark drafted similar reports and required that his subordinates sign them. The fact that Herring had Stark's final.paycheck with him at the secondmeeting cannot, inmy opinion, be used to infer malice justifying punitive damages. Herring testified that had Stark signed the counselling report upon the second request, Stark would not have been terminated, but, in anticipation that Stark might again refuse to sign, he had the check prepared because he thought he had to deliver an employee's final check within 24 hours. Section 39-3-205(2),MCA, is as follows: (2) When an employee is separated for cause from employment by the employer, all the unpaid wages of the employee shall become due and payable immediately upon such separation. Section 39-3-206, MCA, provides the following penalties for failure to complywith S 39-3-205: Any employer, as such employer is defined in this part,who fails topay any ofhis employees as provided in this part or violates any other provision of thispart. shall be guilty of a misdemeanor. A penalty shall also be assessed against. and paid by such employer and become due such employee as follows: a sum equivalent to the fixed amount of 5% of the wages due and unpaid shall be assessed for each day, except Sundays andlegal holidays, upon which such failure continues after the day upon which such wages were due, except that such failure shallnotbe deemed to continue more than 20 days after the date such wages were due.

It seems that a Catch-22 situation has been created when an employer, attempting to comply with a statute to avoid amisdemeanor convictionand a doubling ofwages due an employee, can have evidence of said attempts at payment used againsthim to justify an award ofpunitive damages. The transcript of the final oral argument of plaintiff's counsel includes the following: [LlikeMr. Milodragovich said,you've got to send a message to Phoenix,you've got to tell these people that in Butte, Montana, you've got to follow your policies because that is what the law says. These people only understand money. That is all they understand is money. That is the bottom line. That is why they are in business. There is an exhibit in here that says that the gross sales of Circle K Corporation is 1.6 Billion Dollars. Big, big company. It says here that the net worth is 122 Million Dollars. Now, Iwould think that if a Million dollars was had to be paid by this company that they would get it right the next time. That they wouldn't push people around. That they would admit that they did things wrong. That is the only way that you are ever going to teach these people what they are doing. It's like sending a message to Phoenix just likeMr. Milodragovich said.

You know what the crowning glory is in this case? It's that Cheryl Wellnitz came down from Great Falls with Mr. Herring on the 22nd todrive Greg Stark's car back. He knew he was going to terminate Greg Stark on the 22nd. It wasn't that he gave him anotheropportunity to sign that report. He was getting rid of him. He didn't want to check into any information. He was getting rid of him. His finalpay check was made out. He had thatwith him. If he didn't intend to firehim, what did he have the finalpay check for?

# ..

# . Inmy opinion,the issue of punitive damages should not have been allowed, over objection, to be considered by the jury, and the trial judge should have so ruled,based upon the evidencepresented. The failure of the trial judge to dismiss the punitive damages claim, and the subsequent refusal to enter judgment
n.o.v., or to grant a new trial, in my view, constitutes reversible error. By allowing evidence of the defendant's company's gross salesof over 1.5 billion dollars and a networth of over 122 million dollars, the entire trial was contaminated with highly prejudicial, but wholly irrelevant,evidence.
I would therefore reverse the judgment entered and would remand for a new trial on the issue of breach of the covenant of good faith and

Mr. JusticeJohn Conway Harrison joins in the forgoi,ngdissent ofMr. Justice L. C. Gulbrandson.

Mr. Chief JusticeJ. A. Turnage co curs in the foregoing dissent ofMr. Justice L. C. Gulbrands 

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