ALCORN v. ANBRO ENGINEERING INC

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Court of Appeal, Second District, Division 1, California.

Manuel D. ALCORN, Plaintiff and Appellant, v. ANBRO ENGINEERING, INC., a corporation; Thomas Anderson, Sr., and Harlon Anderson, individually, and as partners of Anderson Bros., a partnership; Thomas Anderson, Jr.; and Gerald Palmer, Defendants and Respondents.

Civ. 33162.

Decided: June 23, 1969

Robert D. Bash, Los Angeles, and Hillel Chodos, Beverly Hills, for plaintiff and appellant. Haight, Lyon, Smith & Nye, and Charles B. Smith and Henry F. Walker, Los Angeles, for defendants and respondents.

Plaintiff Manuel D. Alcorn appeals from an order of dismissal entered after defendants' demurrer to his third amended complaint was sustained without leave to amend. Said complaint seeks damages for alleged intentional infliction of emotional distress and for alleged violation of sections 51 and 52 of the Civil Code. Appellant contends that the court erred in sustaining the demurrer.

The third amended complaint has two alleged causes of action. The first alleged cause of action, which appears to be predicated upon the theory of damages for intentional infliction of emotional distress, includes allegations in substance as follows:

At all times mentioned plaintiff was a person of the Negro race. From 1954 to 1966 he was an employee of defendant Anderson Bros. In 1966 his employment ‘was transferred’ to defendant Anbro Engineering, Inc.1 Defendant Gerald Palmer was at all times mentioned employed as field superintendent of defendant Anbro, was the ‘foreman of plaintiff,’ and was acting within the scope of his employment. On February 2, 1967, plaintiff reported to Palmer at a company job site in Chatsworth. Plaintiff was engaged by defendant Anbro as a truck driver, and he was at that time driving a flat-bed truck. Palmer asked plaintiff why plaintiff had told Tim Ervin that Tim was not authorized to drive a stake body truck to a job site that morning as Tim had been directed to do by Palmer on the previous evening. Plaintiff informed Palmer that Tim Ervin was a laborer and was not a member of the Teamster's Union; that Tim was therefore not permitted to operate any truck under the terms of the contract between the union and defendant companies; that he had advised Tim not to drive the truck until he obtained a ‘management decision’ from Anbro; and that it was plaintiff's duty as shop steward for the union to bring said activities to the attention of Anbro and its employees. There was nothing in plaintiff's conduct with respect to Tim Ervin, or in plaintiff's said statement to Palmer, or in the manner in which plaintiff made the statement to Palmer, which was rude, insubordinate, or otherwise violative of plaintiff's duties as an employee. Immediately after plaintiff made said statement to Palmer, Palmer shouted, in a rude, violent, and insolent manner, as follows: ‘You Goddam ‘niggers' are not going to tell me about the rules. I don't want any ‘niggers' working for me. I am getting rid of all the ‘niggers'; go pick up and deliver that 8-ton roller to the other job site and get your pay check; you're fired.’ As a direct and proximate result of the said acts of Palmer, plaintiff was greatly humiliated, embarrassed, shamed, indignant, enraged, and angered; and he was greatly upset and disturbed; and as a result of said disturbance, and within two or three minutes after said incident, plaintiff became nauseous (nauseated) and vomited; and thereafter, he was sick and ill for weeks and unable to work, and sustained shock, nausea and insomnia. After the incident, plaintiff delivered said roller as directed by Palmer and proceeded to the office of defendant companies. Upon reporting to the office, defendant Thomas Anderson, Jr., acting on his own behalf and on behalf of the other defendants, except defendant Palmer, ratified and confirmed all of the acts of Palmer, including Palmer's discharge of plaintiff. At all times herein mentioned Palmer, Thomas Anderson, Sr., Thomas Anderson, Jr., and Harlon Anderson were and are Caucasians.

[Here there are detailed allegations regarding asserted characteristics and social and economic status of Negroes (including plaintiff) with respect to their alleged susceptibility to feelings of frustration, resentment and discrimination.] Some of such allegations are: Negroes constitute a minority racial group. They are relegated to inferior social and economic status. They suffer constantly from feelings of frustration and resentment. Such feelings or emotions are usually repressed, except when such emotions are focused or brought to the surface by unusual external events, such as discrimination in employment, and the imposition of humiliation upon a Negro by a Caucasian who is in a position of authority over a Negro. When all of such events occur simultaneously, in a single transaction, their emotional impact is certain to be traumatic. The natural instinctive reaction of a Negro to such events is violence, but if he restrains his impulse of violence, it is probable that such emotions will produce physical symptoms such as nausea, shock, and general illness.

Other allegations of the first alleged cause of action are in substance that the conduct of defendants included all of the factors and characteristics set forth in the preceding paragraph; each of the defendants knew and appreciated that his conduct would have a traumatic emotional effect upon plaintiff; the conduct of defendant Palmer was engaged in by him intentionally and maliciously, for the purpose of causing plaintiff humiliation, mental anguish, and emotional and physical distress; the conduct of the other defendants in confirming and ratifying the acts of Palmer, and in discharging plaintiff, were done with knowledge that such acts would heighten and increase plaintiff's mental anguish and emotional and physical distress, and were done either intentionally or in wanton and reckless disregard of plaintiff's rights; since the commencement of this action, plaintiff has been reinstated to his employment with defendant Anbro through the grievance and arbitration procedures provided under the union's contract with Anbro, and he has received back-pay for the period from the time of his improper discharge to the date of his reinstatement, but he has received nothing on account of the emotional and physical distress suffered by him as a proximate result of the conduct of defendants as above alleged; during the period between plaintiff's discharge and reinstatement, he was uncertain whether he would be reemployed, and he was caused additional mental anguish because he did not know whether he would be able to pay his bills and support his family; and said mental anguish aggravated and increased his physical illness during such period; and as a proximate result of said conduct of defendants, plaintiff has been damaged in the amount of $10,000.

The second alleged cause of action incorporates all of the allegations of the first alleged cause of action, and alleges that plaintiff was discharged from his employment solely because of his race, and that the conduct of defendants, as above alleged, ‘constituted the making of a discrimination, distinction and restriction’ against plaintiff on account of his race and color, within the meaning of section 52 of the Civil Code of California.

The prayer is for general damages of $10,000 and for exemplary damages of $100,000 (on both alleged causes of action) and for $250 additional damages on the second alleged cause of action. (There is no allegation in the third amended complaint with reference to exemplary damages or additional damages.)

Defendants demurred to the third amended complaint on the grounds that neither of the alleged causes of action stated facts sufficient to constitute a cause of action and that the court did not have jurisdiction of the subject of the second cause of action. The court sustained the demurrer (without leave to amend) on all grounds specified therein.

Appellant contends that the first alleged cause of action states facts sufficient to constitute a cause of action for damages for intentional infliction of emotional distress.

In Perati v. Atkinson, 213 Cal.App.2d 472, 474, 28 Cal.Rptr. 898, the court affirmed a judgment of dismissal entered after a demurrer was sustained without leave to amend in an action for damages for intentional infliction of emotional distress and said: ‘Intentional infliction of emotional distress, without physical trauma, can be a ground of liability (State Rubbish, etc., Assn. v. Siliznoff, 38 Cal.2d 330, 240 P.2d 282), but only when the defendant's conduct is ‘outrageous' (id., p. 338, 240 P.2d 286); or ‘has gone beyond all reasonable bounds of decency’ (Rest., 1948 Supp., Torts, § 46, com. g). Where, as here, physical harm has not resulted from emotional distress, the courts ‘tend to look for more in the way of extreme outrage as an assurance that the mental disturbance claimed is not fictitious' (44 Cal.L.R. 40, 53).’ (See Grimes v. Carter, 241 Cal.App.2d 694, 699–700, 50 Cal.Rptr. 808, 19 A.L.R3d 1310, quoting the cited quotation; Agostini v. Strycula, 231 Cal.App.2d 804, 808, 42 Cal.Rptr. 314, wherein the court affirmed a judgment of dismissal entered after a demurrer was sustained without leave to amend, and said that under section 46 of the Restatement of Torts ‘extreme and outrageous conduct is required before liability arises'; and Prosser, Insult and Outrage, 44 Cal.L.R. 40, 43–44.)

In Prosser, Insult and Outrage, 44 Cal.L.R. 40, cited in Perati, supra; Grimes, supra; and Agostini, supra; it is said (pp. 43–46):

‘The first limitation which emerges from the decisions is that, except for the special liability of common carriers and other public utilities, which remains to be considered, the independent liability for the intentional infliction of emotional distress arises only in cases of what may be called extreme outrage. It has not been enough that the defendant has acted with the intention of causing the mental disturbance, or that he has intended to commit a tort, or even a crime, or that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages if another tort could be found. Liability has been imposed only in cases where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. * * *

‘* * *

“Adoption of the suggested principle would open up a wide vista of litigation in the field of bad manners, where relatively minor annoyances had better be dealt with by instruments of social control other than the law. Quite apart from the question how far peace of mind is a good thing in itself, it would be quixotic indeed for the law to attempt a general securing of it. Against a large part of the frictions and irritations and clashing of temperaments incident to participation in a community life, a certain toughening of the mental hide is a better protection than the law could ever be.' [Citing Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv.L.Rev. 1033, 1035.] * * *.

‘The other reason is that where there is petty insult, indignity, annoyance or threat, the case conspicuously lacks the necessary assurance that the asserted mental distress is genuine, or that if genuine it is serious and reasonable. * * * Somewhere the line must be drawn; and the courts have drawn it at the threshold of extreme outrage. * * * The plaintiff's only recourse, if he chooses not to retort in kind, is to withdraw, wrap himself in the mantle of his wounded dignity, and take consolation in the reflection that he is himself above such language, and that ‘sticks and stones may break my bones, but names will never hurt me.’'

On the first cause of action, in the present case, plaintiff seeks damages for alleged emotional distress assertedly inflicted upon him by the statement which Palmer made during the conversation or argument preceding plaintiff's discharge. The statement was made during the course of plaintiff's and Palmer's employment on a construction project where plaintiff was employed as a truck driver. At that time they were discussing a statement which plaintiff had made previously to another employee countermanding a direction or order which Palmer, as project superintendent, had given to the other employee. Plaintiff, an employee, had countermanded the superintendent's direction or order without consulting the superintendent or any other management official, and without resorting to union grievance procedures. The statement by Palmer was made immediately after plaintiff's statement to the effect that he had countermanded Palmer's order. The statement included a profane word, a reference to plaintiff's racial ancestry, an objection to his telling ‘the rules' to Palmer, and a declaration that plaintiff was thereupon discharged—it did not include a threat of physical injury. It is apparent that Palmer's statement was a spontaneous response to plaintiff's conceded acts of insubordination in countermanding Palmer's order, and in telling him ‘the rules.’ Although there was an allegation that Palmer's acts were done maliciously or in wanton disregard of plaintiff's rights, the admitted acts of insubordination by plaintiff tended to refute such allegation and indicated provocation for Palmer's statement, except as to the reference therein to plaintiff's race. Through union arbitration procedure, plaintiff was reinstated with back-pay. It was also alleged that Palmer's statement caused plaintiff humiliation and embarrassment, and caused him to vomi within two or three minutes after the incident. It is to be noted, however, that he alleged that immediately after the incident, he delivered the roller and went to the company office and reported the incident. Plaintiff had been a truck driver and construction worker for thirteen years prior to Palmer's statement, and plaintiff was at that time a shop steward of the union; and it is to be assumed that he was accustomed to the speech and manners of truck drivers and construction workers. Under the alleged circumstances, particularly in view of the provocation, the statement of Palmer, which ended in discharging the plaintiff, was not of the kind or nature which is within the classification of extreme outrage as is required for liability in tort. The first alleged cause of action does not state facts sufficient to state a cause of action.

Appellant contends further that the second alleged cause of action states facts sufficient to constitute a cause of action for damages under sections 51 and 52 of the Civil Code.

Section 51 of the Civil Code, which is known as the Unruh Civil Rights Act, provides:

‘All persons within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

‘This section shall not be construed to confer any right or privilege on a person which is conditioned or limited by law or which is applicable alike to persons of every color, race, religion, ancestry, or national origin.’

Section 52 of the Civil Code provides: ‘Whoever denies, or who aids, or incites such denial, or whoever makes any discrimination, distinction or restriction on account of color, race, religion, ancestry, or national origin, contrary to the provisions of Section 51 of this code, is liable for each and every such offense for the actual damages, and two hundred fifty dollars ($250) in addition thereto, suffered by any person denied the rights provided in Section 51 of this code.’

In the present case, the second alleged cause of action incorporates all of the allegations of the first cause of action, and alleges that plaintiff was discharged solely by reason of his race, and that the conduct of defendants, ‘as above alleged,’ constituted ‘the making of a discrimination, distinction and restriction against Plaintiff on account of his race and color, within the meaning of Section 52 of the California Civil Code.’

Said code sections 51 and 52 refer to the right to equal accommodations, advantages, facilities, or services in business establishments. There is no reference therein to the right to seek, obtain and hold employment. At the same session of the Legislature wherein the Unruh Civil Rights Act3 was enacted, the Legislature enacted the California Fair Employment Practice Act (Lab.Code, §§ 1410–1433), a new enactment relating to discrimination in employment.

Section 1411 of the Labor Code is a legislative declaration of public policy ‘to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race * * *.’ Section 1412 provides that the ‘opportunity to seek, obtain, and hold employment without discrimination because of race * * * is hereby recognized as and declared to be a civil right.’ Other sections of the act (Lab.Code, § 1413 et seq.) establish the State Fair Employment Practice Commission to enforce the act, and establish administrative procedure.

It thus appears that the Legislature provided a remedy for protecting the civil right to seek, obtain and hold employment (Lab.Code, §§ 1410 et seq.) which is separate from the remedy for protecting the civil right to equal accommodations in business establishments (Civ.Code, §§ 51, 52); and that whereas the Legislature provided for a civil action for damages for violation of the right to equal accommodations in business establishments, it provided administrative machinery for enforcement of violations of the civil right to seek, obtain and hold employment.

In the present case, appellant asserts that he has obtained, through union arbitration, all the remedies which he could have obtained under the Fair Employment Practice Act for discrimination in his employment, and that it was not necessary therefore for him to proceed under said act. After having submitted his claim to arbitration, he seeks further relief or damages for alleged discrimination against his claimed civil right to full and equal accommodations, advantages, facilities, privileges, or services in a business establishment under sections 51 and 52 of the Civil Code. It thus appears that plaintiff, who has admittedly obtained all awards available for discrimination against him as an employee, seeks, in the second alleged cause of action, damages for emotional distress allegedly resulting from the private act of his superintendent in uttering a slang reference to plaintiff's race in the emotional circumstances provoked by plaintiff's countermanding the superintendent's order to another employee; and plaintiff claims that he is entitled to such damages because he was a person discriminated against in a business establishment. At the time of that incident, plaintiff was operating a truck near a building-construction site where he and Palmer were employees of the contractor. The second alleged cause of action incorporates all of the allegations of the first alleged cause of action. Although it is alleged that plaintiff was discharged solely by reason of his race, that allegation is, in view of other allegations, a conclusion of law,—especially in view of the specific allegations that the conduct of the defendants ‘as above alleged’ (referring to incorporated allegations) constituted ‘the making of a discrimination * * *.’ As previously stated, the allegations of the first cause of action are to the effect that plaintiff was discharged by reason of his conduct, as an employee and shop steward, in countermanding his superintendent's order to another employee, and that plaintiff received reinstatement and back-pay (and, by admission, all remedies available under Fair Employment Practice Act) through union arbitration. In order to maintain a cause of action under sections 51 and 52, it is essential that plaintiff allege facts showing a discrimination (within the meaning of those sections) based upon race, color, religion, ancestry or national origin. (Civ.Code, §§ 51, 52; Crowell v. Isaacs, 235 Cal.App.2d 755, 757, 45 Cal.Rptr. 566.) As above shown, his asserted claim, under the Unruh Act, is for damages for alleged emotional distress resulting from ‘a discrimination’ by reason of a private utterance of his superintendent. Although it has been said that the term ‘business establishments' in section 51 is used in the broadest sense reasonably possible (Burks v. Poppy Construction Co., 57 Cal.2d 463, 468, 20 Cal.Rptr. 609, 370 P.2d 313), it is not reasonable to conclude that the Legislature, which has prescribed extensive remedies (Fair Employment Practice Act) for discrimination in employment, intended that conduct such as that alleged herein should constitute a discrimination (as to rights in a business establishment) within the meaning of sections 51 and 52 of the Civil Code. The second alleged cause of action does not state facts sufficient to constitute a cause of action under sections 51 and 52 of the Civil Code.

The order of dismissal is affirmed.

FOOTNOTES

1.  It is alleged that Anbro Engineering, Inc., is a corporation; that Anderson Bros. is a partnership composed of Thomas Anderson, Sr., and Harlon Anderson; that ‘Anbro’ is a wholly owned subsidiary of, and controlled by, Anderson Bros.; and that Palmer was at all times mentioned acting within the scope of his employment as field superintendent of ‘Anbro’ (corporation). There are no allegations from which it can be legally inferred that the obligations of the corporation (for alleged wrongful conduct of Palmer) are the obligations of the Anderson brothers, individually, or of defendant Thomas Anderson, Jr., individually. (See Judelson v. American Metal Bearing Co., 89 Cal.App.2d 256, 263, 200 P.2d 836.)

3.  The Unruh Act modified existing sections of the Civil Code which provided a remedy for discrimination in public accommodations.

WOOD, Presiding Justice.

FOURT and LILLIE, JJ., concur.