No. 90-161 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 9 0 

ROBERT P. BARRETT, 

Plaintiff and Respondent, 

ASARCO INCORPORATED, a New Jersey 

corporation, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James M. Ragain and Kyle A Gray; Holland and Hart; 

Billings, Montana 

For Respondent: 

Gene A. Picotte, Helena Montana 

P. Keith Keller; Keller, Reynolds, Drake, Sternhagen 

and Johnson; Helena, Montana 

Filed: 

Submitted on Briefs: September 6, 1990 

Decided: October 25, 1990 
Justice R. C. McDonough delivered the Opinion of the Court. 

In this case, a jury returned a verdict for plaintiff Robert 

P. Barrett on his theory that the defendant Asarco, Inc. breached 

the implied covenant of good faith and fair dealing in the 

employment relationship. The District Court denied Asarco's 

motions for directed verdict, judgment notwithstanding the verdict, 

and new trial and entered its judgment in accordance with the 

jury's verdict. Asarco appeals. We affirm the District Court. 

Asarco raises the following issues on this appeal: 

(1) Did the District Court err in denying Asarco's motion for 

judgment notwithstanding the verdict and directed verdict on the 

grounds that there is no substantial credible evidence to support 

the jury's finding that Asarco breached the implied covenant of 

good faith and fair dealing when it terminated Barrett's 

employment? 

(2) Did the District Court err in admitting into evidence the 

former trial testimony of the respondent's brother, Sam Barrett? 

(3) Did the trial court err in refusing to give Asarco's 

proposed jury instruction regarding Montana law on the immediate 

payment of wages to discharged employees? 

(4) Did the District Court err in refusing to grant Asarco 

a new trial based on alleged misconduct by Barrettts counsel? 

Barrett worked at Asarcols East Helena smelter for 15 years. 

He began his employment in 1969 as an hourly worker and in 1973 he 

was promoted to shift foreman, a salaried managerial position. On 

November 26, 1983, Barrett injured his back while replacing a 
conveyor belt at the Asarco plant. 

Approximately five months later, on May 8, 1984, Asarco 

terminated Barrettts employment. At that time Barrett was still 

off work and receiving medical treatment. He was being paid full 

salary and Asarco was paying his medical bills. At the meeting 

when Barrett was terminated, the plant superintendent, Robert 

Hearst, confronted Barrett with information alleging that Barrett 

had been seen by another Asarco employee unloading hay bales at 

the Lewis and Clark County Fairgrounds in Helena while he was 

receiving full salary for his back injury from Asarco. According 

to his testimony, Barrett understood that he was being accused of 

"bucking balesw at a friend's ranch rather than unloading hay for 

his race horses which he kept at the fairgrounds. Barrett denied 

that he was "bucking balest1 and was subsequently fired by Asarco 

for allegedly lying about his physical activities while he was 

injured. 

Barrett filed a complaint against Asarco on May 7, 1985, 

alleging that Asarco had breached the implied covenant of good 

faith and fair dealing in the employment relationship. The case 

was tried and the jury returned a verdict for Barrett. We reversed 

the judgment and remanded the case for new trial. See Barrett v. 

Asarco, Inc. (1988), 234 Mont. 229, 763 P.2d 27. The case was 

retried on November 13, 1989. The jury returned a verdict in 

favor of Barrett in the amount of $230,000.00 in compensatory 

damages. The District Court denied all of Asarcols post trial 

motions and entered its judgment in accordance with the verdict. 
Asarco now appeals raising the aforementioned issues. 

I. 

The scope of our review of a jury's verdict is narrow. Our 

function is to determine if there is substantial credible evidence 

in the record supporting the jury's verdict. Krueger v. General 

Motors Corp. (1989) 783 P.2d 1340, 1347, 46 St.Rep. 2114, 2122. 

Substantial evidence is that evidence that a reasonable mind might 

accept as adequate to support a conclusion; it consists of more 

than a mere scintilla of evidence but may be somewhat less than a 

preponderance. Black's Law Dictionary 1281 (5th ed. 1979) ; 

Stanhope v. Lawrence (Mont. 1990), 787 P.2d 1226, 1228-1229, 47 

St.Rep. 438, 440. Although it may be based on weak and conflicting 

evidence, in order to rise to the level of substantial evidence it 

must be greater than trifling or frivolous. Christensen v. Britton 

(Mont. 1990), 784 P.2d 908, 913, 46 St.Rep. 2223, 2230. Where 

there is substantial evidence to support the jury's verdict the 

district court's refusal to grant a new trial will not be 

disturbed. Krueqer, 783 P.2d at 1347; Brothers v. Town of Virginia 

City (1976), 171 Mont. 352, 358, 558 P.2d 464, 467. 

Under the law applicable in this case, the implied covenant 

of good faith and fair dealing is dependent upon objective 

manifestations by Asarco that would give rise to Barrett's 

reasonable belief that he had job security and would be treated 

fairly. Stark v. Circle K Corp (1988), 230 Mont. 468, 475, 751 

P.2d 162, 166, citing Dare v. Montana Petroleum Marketing Co. 

(1984), 212 Mont. 274, 282, 687 P.2d 1015, 1020. Also, as we 
stated in our earlier remand of this case, the protection afforded 

Barrett by the covenant ttnecessarily hinges on the employee's good 

faith performance of job duties because the covenant of good faith 

and fair dealing mandates a reciprocal duty. " Barrett, 763 P. 2d 

at 32-33, citing Los Angeles Memorial Coliseum Commission v. NFL 

(9th Cir.1986), 791 F.2d 1356, 1361, cert. denied, 484 U.S. 826, 

108 S.Ct. 92, 98 L.Ed.2d 53 (1987). Thus, both parties are 

afforded protection by the reciprocal nature of the covenant, and 

to rebut allegations by an employee that the employer breached the 

covenant the employer need only show a fair and honest reason for 

termination. Stark, 751 P.2d at 166-167; Flanigan v. Prudential 

Federal Savings and Loan Assoc. (1986), 221 Mont. 419, 426-427, 720 

P.2d 257, 261. 

In the case at bar, both parties presented very different 

versions of the events surrounding Barrettts termination. Much of 

Asarco' s brief is devoted to arguing its version of the conflicting 

evidence presented in this case. However, the scope of our review 

mandates that we concede Barrett's evidence as true and draw all 

legitimate inferences in favor of Barrett. Krueqer, 783 P.2d at 

1347-1348; Brother's, 558 P.2d at 467. Accordingly, Barrett's 

evidence is sufficient to sustain a verdict that Asarco breached 

the implied covenant of good faith and fair dealing when it 

terminated his employment. Barrett presented substantial credible 

evidence that he had a reasonable belief in job security. He was 

employed by Asarco for 15 years. He had been promoted to a 

salaried managerial position. He received regular raises and 
Christmas bonuses. His job involved supervising and training 

others, as well as responsibility for production in part of the 

plant. These are sufficient objective manifestations from which 

a jury could find the existence of the covenant. 

Barrett also offered substantial credible evidence that Asarco 

lacked a fair and honest reason for terminating him and that 

Barrett did not breach his reciprocal duty of good faith. Asarco 

offered evidence to show that Barrett lied about his physical 

condition, took a fake sick leave, and slept on shift. At the 

termination meeting, Asarco accused Barrett of "bucking balesvv 

while he was supposedly injured. Barrettvs testimony indicates 

that he did not associate this accusation with unloading some hay 

for his horses at the fair grounds. Barrett testified that 

because of shift changes, and inability to adapt sleep patterns, 

as well as the droning, humming noise in the plant, everyone, 

including him, occasionally falls asleep on the night shift. 

Barrett denied faking a sick leave. Barrett was also accused of 

leaving work early in 1981 and was given 4 days off without pay. 

This was the only time Barrett was ever subject to discipline by 

Asarco. Barrett was not on probation or subject to disciplinary 

proceedings when he was fired. Barrett offered testimony that his 

immediate supervisor, Bob Hearst, had a personal dislike for 

Barrett and was looking for any excuse to get rid of Barrett. 

Hearst had Barrettvs final paycheck made out prior to this 

termination meeting. The jury was instructed that if it found that 

Barrett had been dishonest with Asarco there could be no breach of 
the implied covenant by Asarco. The jury as fact-finder chose to 

believe Barrett's version of the conflicting evidence offered at 

trial. It is not the function of this appellate court to overturn 

decisions on findings of fact made by a competent jury properly 

instructed on how to view the evidence. Gee v. Egbert (1984) , 209 

Mont. 1, 18-19, 679 P.2d 1194, 1203. Accordingly, we will not 

disturb the jury's determination in this case because it is 

supported by substantial credible evidence. 

11. 

Asarco's second issue alleges that the District Court erred 

in admitting the transcribed testimony from the first trial of Sam 

Barrett, the plaintiff's brother, into evidence at the trial after 

remand. Asarco contends that Barrett failed to make a proper 

showing that his brother Sam was unavailable to testify and 

therefore admission of his prior testimony is reversible error. 

See, e.g. State v. LaCario (1974), 163 Mont. 511, 518 P.2d 982. 

Rule 804 M.R.Evid. provides a hearsay exception for the use 

of former testimony if a witness is unavailable: 

Rule 804. Hearsay exceptions: declarantunavailable. 

(a) Definition of unavailability. Unavailability 

as a witness includes situations in which the declarant: ... 

(5) is absent from the hearing and the proponent 

of his statement has been unable to procure his 

attendance by process or other reasonable means. 

A declarant is not unavailable as a witness if his 

exemption, refusal, claim of lack of memory, inability, 

or absence is due to the procurement or wrongdoing of 

the proponent of his statement for the purpose of 

preventing the witness from attending or testifying. 

(b) Hearsay exceptions. The following are not 

excluded by the hearsay rule if the declarant is 

unavailable as a witness: 

(1) Former testimony. Testimony given as a witness 
at another hearing of the same or a different proceeding, 

or in a deposition taken in compliance with law in the 

course of the same or another proceeding, (A) in civil 

actions and proceedings, at the instance of or against 

a party with an opportunity to develop the testimony by 

direct, cross, or redirect examination, with motive and 

interest similar to those of the party against whom now 

offered. . . . 

Citing this rule, Asarco argues that Barrett did not make 

reasonable efforts to procure Sam's attendance and therefore is 

precluded from using his prior testimony from the first trial on 

the grounds of unavailability. 

We disagree. Generally it is within the discretion of the 

trial court to accept or reject counsel's representations on 

unavailability. Republic Security Co. v. Puerto Rico Aqueduct and 

Sewer Authority, (1st Cir.1982), 674 F.2d 952, 957; Bailey v. 

Southern Pacific Transportation Co. (5th Cir.1980), 613 F.2d 1385, 

1390. In this case, foundational testimony was given by the 

plaintiff Barrett outside the presence of the jury regarding the 

unavailability of his brother to testify at this second trial. 

Barrett testified that he told his brother the trial date and 

requested that he be present to testify. His brother allegedly 

assured him of his presence at the trial. Barrett testified that 

he was simply unable to locate his brother prior to and during the 

trial. Barrett argues that due diligence does not require issuance 

of a subpoena in this case because both Barrett and Barrett's 

counsel believed that it would not be necessary to subpoena a 

family member to secure his attendance at trial. 

The trial court, in its discretion, accepted this explanation. 

Asarco has the burden of demonstrating that the trial court erred 
as to whether reasonable means were used. ~ailey, 613 F.2d at 

1390. Asarco insinuates that Sam's absence was somehow procured 

but fails to support such allegations with evidence. In short, 

Asarco has failed to meet its burden. Furthermore, Asarco 

experienced little or no prejudice by admission of such hearsay 

testimony in this, a civil proceeding because the parties and 

issues were identical, and Asarco had a full and fair opportunity 

to develop testimony from Sam Barrett on the same issues through 

cross-examination at the first trial. See senerally, McCormick on 

Evidence, (3rd Ed. 1984), 5 253-257; 4 weinstein's Evidence, 5 

804(b)(l); and commission comments to Rule 804 M.R.Evid. and Rule 

804 Fed.R.Evid. The ~istrict Court did not abuse its discretion 

in admitting the former testimony of Sam Barrett. 

111. 

Asarco also contends that the trial court erred by refusing 

to give Asarco's proposed instruction regarding Montana law on 

immediate payment of wages to discharged employees. The 

instruction provided: 

You are instructed that Montana statutory law requires 

an employer who discharges an employee for cause to 

immediately pay all final wages due to the discharged 

employee. 

Failure to pay all such wages due will result in a 

monetary penalty to the employer. 

The instruction does in fact correctly state the law in Montana at 

the time Barrett was discharged. See 55 39-3-205(2), 39-3-206, 

MCA (1983). 

The record indicates that Asarco prepared Barrett's final 
check prior to the meeting where Barrett was accused of "bucking 

balesw and was subsequently terminated. Barrett argues that this 

supports his theory that Hearst was out to get him; Barrett 

contends that the check was already made out because Hearst planned 

to fire him before Barrett had a chance to give his version of the 

facts. 

On the other hand, Asarco argues that they merely drafted the 

check prior to the meeting so that they would be in compliance with 

the law if they decided to terminate Barrett pursuant to the 

meeting. They argue that this entitles them to have the jury 

instructed on this point. 

We see little merit in Asarco's argument. After questioning 

Barrett about the alleged hay incident, Hearst could have decided 

to terminate Barrett, informed him of such, and then just as easily 

complied with the law by requesting him to wait a few minutes while 

a final paycheck was prepared for him. Therefore, both sides were 

at liberty to argue Hearst's intent in having the check drafted 

prior to ever meeting with Barrett. In refusing the instruction, 

the District Court noted: 

This instruction is also improper because it 

addresses a collateral issue in the case and not one that 

the jury was required to find for a verdict. It is 

immaterial to the jury whether the employer paid wages 

to the plaintiff immediately upon his discharge; 

termination procedure was not an issue. The defendant 

contends that this instruction was pertinent because 

evidence was presented that the employer had a 

termination check already made out before he determined 

whether cause for termination existed. The wroposed 

instruction does not address the employerls intent in 

this resard. Giving this instruction would serve only 

to confuse the jury and to distract them from the issues 

they were required to consider. Refusal of this 
instruction does not warrant a new trial. (Emphasis 

added. ) 

We agree with this analysis. The proposed instruction would have 

only served to confuse and mislead the jury. The District Court 

did not abuse it's discretion in refusing the instruction. 

IV . Finally, Asarco contends that plaintiff's counsel engaged in 

misconduct warranting a new trial. It contends that Barrett's 

counsel violated several motions in limine, made comments evincing 

a lack of respect for the court's rulings and the judicial system, 

as well as a lack of respect for the appellate function of this 

Court. 

Upon reviewing the record, we can find no error warranting a 

new trial. Asarco failed to object to the comments of Barrett's 

counsel alleged as misconduct except for one instance during 

closing argument where the objection was apparently overruled and 

the trial judge cured any prejudicial error by admonishing the jury 

that nothing said by counsel in argument was evidence. Failure to 

object to alleged error at trial precludes an appellant from 

raising that issue on appeal. Matter of B.L.O. (1984), 213 Mont. 

164, 169, 689 P.2d 1246, 1249. 

Asarco also failed to object to what it now alleges on this 

appeal are violations of the District Court's in limine rulings 

regarding emotional distress claims, negative publicity suffered 

by Barrett due to the first trial and appeal, and exclusion of due 

process arguments concerning termination procedure. A motion in 

limine is a pre-trial objection to evidence and need not be 
continually renewed to preserve alleged errors for appeal. Beil 

v. Mayer (Mont. 1990), 789 P.2d 1229, 1232-1233, 47 St.Rep. 661, 

665. Regardless, none of the alleged violations of these motions 

constitutes error sufficient to warrant a reversal by this Court 

in this case. 

First, the District Court did not preclude in limine evidence 

on emotional distress, rather, the record shows that the court 

directed a verdict in favor of Asarco on Barrettts emotional 

distress claims after Barrettts case-in-chief. Any error arising 

from a reference to emotional distress damages by Barrettts 

counsel should have been preserved with an objection. 

In ruling on the motion concerning damages to plaintiff 

growing out of a post-trial newspaper article, the trial court 

stated: 

On motion two, post remand problems which occurred 

by reason of newspaper articles brouqht about by 

publicity from the reversal by the Supreme Court, I dont t 

think that is actionable. Even if he is distressed by 

the newspaper articles I don't see how that is the fault 

of the Defendant and so I would have been inclined to 

grant that. (Emphasis added.) 

Asarco alleges that the following statement by Barrett's counsel 

violates this ruling: 

They trashed him. They ruined him. Gave him six years 

of agony, humiliation. 

These comments make no reference to any newspaper articles, or the 

affect thereof, and therefore do not violate the order. 

When asked by his counsel the effect the termination had on 

his relationship with his family Barrett did mention the newspaper 

article. The record contains the following testimony: 
A. Well, I have had a hard time trying to explain to 

my kids some of the things they put in the newspaper. 

Q. (By Barrett's counsel.) No, wait a minute. There 

is an order about that. 

MR. RAGAIN (Counsel for Asarco): Your honor, I want the 

jury instructed to disregard that remark. Especially 

with regard to they putting [sic] in the newspaper. I 

want it clear that my client had nothing to do with 

putting anything in the newspaper. 

THE COURT: The jury is instructed to please disregard 

that comment of the witness. 

From the record it appears that Barrettts counsel did not attempt 

to solicit this response. Furthermore, the jury was fully 

admonished to disregard the answer. We will not reverse a judgment 

unless error affects the substantial rights of a party. Dahlin v. 

Holmquist (1988), 235 Mont. 17, 21, 766 P.2d 239, 241. Any 

prejudice suffered by Asarco here was minimal, and certainly did 

not rise to such a level as to deprive Asarco of a fair trial. 

See e.g. Krueger v. General Motors Corp., supra, 783 P.2d at 1349. 

Finally, Asarco alleges that Barrettts counsel violated the 

motion in limine regarding due process in termination procedures 

during his closing argument. We disagree. In ruling on the 

motion, the District Court stated that evidence of the termination 

proceeding was inadmissible on the question of due process but 

would be admissible on the question of whether Asarco had a fair 

and honest reason for terminating Barrett. Regarding these 

questions, the Court stated that it would "rule on them as they 

come up.t' In closing, Barrettts counsel argued: 

Now they haven't got any system in this company. Nobody 

ever made a memorandum of this after it was over. You 
work for the state or any other big organization I know 

about and my God you would have a file on this case this 

thick before the guy was ever even fired. He would have 

hearings and have all kinds of due process and law and 

everything. But as Your Honor instructed YOU they didn' t 

have to brim a witness asainst him. Didn't even have 

to sive him any notice as lonq as you think they had a 

fair and honest reason for firinq him. That is the 

bottom line. (Emphasis added.) 

Here, counsel's argument went solely to the issue of whether Asarco 

had a fair and honest reason for terminating Barrett. No error was 

committed. 

Furthermore, the District Court has discretion in determining 

whether misconduct so prejudices a party as to warrant reversal: 

The standard of review for this Court in determining 

whether a mistrial was appropriately denied is whether 

there is manifest abuse of the District Court's broad 

discretionary power. [citations omitted]. . . . . The District Court judge . . . is in the 

best position to determine the prejudicial effect of 

the attorney's blatant misconduct on the jury. 

Kuhnke v. Fisher (1987) 227 Mont. 62, 68, 740 P.2d 625, 628. 

(Kuhnke 11.) Here, we cannot conclude that the District Court 

abused its discretion. The judgment is 

AFFIRMED. 

We Concur: A 

.' f' 

'chief Justice