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District Court of Appeal, First District, Division 3, California.

Floyd BROWN, Plaintiff and Respondent, v. MUTUAL GROCERY COMPANY, a corporation, and Paul Schacht, Defendants and Appellants.

Civ. 21827.

Decided: December 02, 1964

J. Hart Clinton, Richard J. Archer, Douglas C. White, Morrison, Foerster, Holloway, Clinton & Clark, San Francisco, for appellants. George D. Carroll, Richmond, for respondent.

One count of plaintiff's complaint sought compensatory damages of $50,000 and punitive damages of $25,000 for interference with his employment at Safeway Stores, and the second count sought like amounts for defamation. The jury returned a single verdict for $24,500. Defendants appeal from judgment on that verdict.

Plaintiff is a ‘lumper’, i. e. a helper assigned to aid a truck driver in unloading his truck. Such employees are assigned by the Teamsters' Union local to warehouses, but are paid by the trucking companies unloading there. In a warehouse to which several lumpers are assigned, one is designated by the union to act as steward. In addition to his usual work, he assigns lumpers to trucks as they arrive and calls the union for additional lumpers as required. The steward receives no greater pay. Plaintiff had been assigned to defendant corporation's warehouse for some time, and had become the lumper steward there. On May 23, 1961, a question arose as to a shortage of one case in a shipment of canned tuna. Defendant Schacht, the warehouse superintendent, notified the union hall that plaintiff was involved, and that he would not be permitted on defendant's premises thereafter. A day or two later, in response to a question from Safeway's warehouse manager, Schacht said that plaintiff had been ‘involved in the loss of a case of tuna’, and had been barred from the Mutual warehouse. Shortly thereafter, plaintiff and the union business agent sought unsuccessfully to have plaintiff reinstated by Mutual. They then went to Safeway and suggested that plaintiff become lumper steward there, and that Battan, the Safeway lumper steward, be transferred to Mutual. The Safeway warehouseman refused.

In Suptember, plaintiff for the first time requested a union clearance to work at the Safeway warehouse as a lumper. The request was granted, he was admitted to the warehouse, and worked worked there for several days. He then engaged in an altercation with Battan, and for the first time was barred from the Safeway premises. Although plaintiff testified that he was more closely checked than other lumpers at Safeway, he concedes that this surveillance did not cause him to leave, and that he in fact ceased to work there only because he was barred.

The complaint alleges that defendants, in September, wrongfully induced Safeway to terminate his existing employment there. We recognize, of course, that existing employment is not essential. Liability would be established if defendants unjustifiably induced Safeway to refuse to employ plaintiff at all (Masoni v. Board of Trade of S. F., 119 Cal.App.2d 738, 741, 260 P.2d 205; Rest.Torts, § 766), at least if employment were otherwise reasonably probable (Wilson v. Loew's Inc., 142 Cal.App.2d 183, 194, 298 P.2d 152).

But defendant's action must be the inducing cause in either case. Here this element of proximate cause is lacking. Whether the communication of defendant warehouse manager to the Safeway manager was made in May, as the evidence shows, or in September, as pleaded, is immaterial. For it is clear that the communication, whenever made, in fact preceded plaintiff's employment as a lumper at the Safeway warehouse. Since plaintiff started work at Safeway after the communication, it is obvious that defendants in no way prevented his securing the employment. There is neither evidence nor inference of any second communication from either defendant to Safeway. Thus there is no basis for connecting defendant with the barring of plaintiff from the Safeway warehouse after he began to work there, even if the jury disbelieved the testimony that he was barred because of an altercation with the steward at Safeway. Absent evidence that defendants either prevented plaintiff's employment at Safeway or caused its termination, there is no support for a verdict in his favor on the count for interference with employment.

There remains the question whether this error is prejudicial. We find no reversible error as to the count for defamation. When a general verdict is sustained by one count as to which the evidence is sufficient, insufficiency as to a second count does not of itself require reversal of the judgment (Gillespie v. Rawlings, 49 Cal.2d 359, 369, 317 P.2d 301). We do not consider the attacks upon that rule (see 1 Stanbury, Calif. Trial and Appellate Practice, § 622), since we are bound by it (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937).

We are satisfied, however, that the rule of Gillespie is not applicable here. We have but a single verdict for $24,500, without segregation of the several items of damage. When the jurors were asked whether the document read to them was their verdict, none dissented. But when they were polled individually, four responded that that verdict was not theirs. The court then questioned them as to the discrepancy. The replies made clear that the jury had first voted on the issue of liability and had then voted separately upon each with employment relations, for other compensatory eith employment relations, for other compensatory damages, and for punitive damages. The inference is inescapable that some award for each of these three items was included in the total of $24,500. One of the four jurors reported as dissenting had disagreed as to some items of damage, but had in fact agreed to the total award. Thus there was a proper 9 to 3 verdict. But it is clear that the total includes some allowance of damages for interference with employment. We cannot tell whether that award was large or small, but we do know that it was not sustained by the evidence. Thus we must remand the case for new trial.

Judgment reversed. Order denying judgment notwithstanding verdict affirmed. Each party shall bear own costs on appeal.

DRAPER, Presiding Justice.

SALSMAN and DEVINE, JJ., concur.

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