DeTOMASO v. PAN AMERICAN WORLD AIRWAYS INC

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

John DeTOMASO, Plaintiff, Appellant and Cross-Respondent, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant, Respondent and Cross-Appellant.

Civ. B006675.

Decided: November 25, 1985

Robert N. Cleaves, Los Angeles, for plaintiff, appellant and cross-respondent. Belcher, Henzie, Biegenzahn & Walker, and George M. Henzie and E. Lee Horton, Los Angeles, for defendant, respondent and cross-appellant.

Plaintiff and appellant John DeTomaso (DeTomaso) appeals from an order conditionally granting defendant and respondent Pan American World Airways, Inc.'s (Pan Am) motion for a new trial.

Pan Am cross-appeals from the judgment in favor of DeTomaso, from the order denying its motion for judgment notwithstanding the verdict, from the order denying its motion for new trial as to all issues, and from the order conditionally granting its motion for new trial.

Because the federal Railway Labor Act (RLA) did not preempt the causes of action alleged in the complaint, and for the reasons discussed herein, the order granting a new trial is set aside, and the judgment is affirmed and reinstated.

PROCEDURAL AND FACTUAL BACKGROUND

During September 1978, DeTomaso, an 11 year employee of Pan Am, purchased three bins of salvage from the airline for a total of $300.   Such transactions were not prohibited by company policy, and DeTomaso had previously purchased abandoned cargo from Pan Am.   Pan Am subsequently discovered that some of the cargo was not abandoned, and on October 17, 1978, Jim Startzell, Director of Security for Pan Am, together with an FBI agent, visited DeTomaso at his workplace to inquire about the cargo.

The three of them went to DeTomaso's house to look at the salvage items in the garage.   In the presence and hearing of DeTomaso's 10-year old son, Startzell accused DeTomaso of theft.   The FBI agent confiscated part of the cargo and turned it over to Continental Airlines.   On October 24, 1978, Startzell reported the matter as a theft to John Solomito, Pan Am's Director of Cargo, as well as to the airline's Director of Security at JFK Airport in New York and to the Labor Relations Manager.

DeTomaso was fired on January 11, 1979, for “fraud, dishonesty and abuse of company policy.”   That same day, DeTomaso filed a grievance, which was denied.

DeTomaso then sued Pan Am for defamation, intentional infliction of emotional distress, and breach of warranty of title to the property he had purchased.   On March 9, 1979, a Field Board Hearing took place following which DeTomaso was reinstated with back pay.   DeTomaso then amended his complaint to delete a prayer for loss of wages and related benefits.   The trial of the case resulted in a jury verdict for DeTomaso in the amount of $265,000 general damages and $300,000 punitive damages.

Pan Am moved for a new trial on the grounds of (1) excessive damages, (2) insufficiency of the evidence to sustain the verdict, and (3) errors of law in instructing the jury on emotional distress, defamation and punitive damages.   The trial court granted Pan Am's motion for new trial as to damages only, unless DeTomaso agreed to accept $156,607 in general damages and $50,000 in punitive damages.   DeTomaso refused to accept the remittitur.   The appeal and cross-appeal followed.

CONTENTIONS

DeTomaso contends the order granting the new trial must be reversed and the judgment reinstated, as the order failed to specify the grounds upon which the motion was granted.

Pan Am contends reversible errors occurred in that:  (1) the RLA, 45 U.S.C. § 151, et seq. provided the exclusive remedy for claims arising out of the investigation and termination of DeTomaso;  (2) mutual mistake that salvage was being sold by Pan Am and purchased by DeTomaso prevented the formation of an enforceable contract, so that DeTomaso would be barred from recovering for property he acquired pursuant to the mistake;  (3) the damages were excessive;  (4) the trial court erred in instructing the jury on punitive damages, absent a showing that Pan Am either authorized or ratified the conduct;  (5) the statements complained of, if made, were privileged, were made without malice, were true, and were neither authorized nor ratified by Pan Am, so that an award of punitive damages was improper;  and (6) the trial court erred in denying Pan Am's motion for a mistrial the grounds of which were the presence of DeTomaso's ill child in the courthouse.

DISCUSSION

1. DeTomaso's claims for damages arising out of defamation and the intentional infliction of emotional distress are not preempted by the federal RLA as the harms he suffered are outside its ambit.

 a. The RLA's purpose and scope.

The RLA was enacted in 1926 “to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.”  (45 U.S.C. § 151a (5).)   In 1936 Congress enlarged the coverage of the RLA to include the airline industry.  (45 U.S.C. §§ 181–188.)

 One of the RLA's primary purposes is to minimize interruptions in the nation's transportation services by strikes and labor disputes.  (Machinists v. Central Airlines, Inc. (1963) 372 U.S. 682, 687, 83 S.Ct. 956, 959, 10 L.Ed.2d 67.)   To effectuate that purpose, the RLA provides for the creation of adjustment boards to arbitrate disputes between employees and carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, the so-called minor disputes.   A “minor dispute” has been interpreted as being a dispute arising from the interpretation and application of an existing agreement.  (Elgin, J. & E.R. Co. v. Burley (1945) 325 U.S. 711, 723–724, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886.)   The arbitration provisions for minor disputes are mandatory, and preempt state remedies.  (Andrews v. Louisville & Nashville R. Co. (1972) 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95.)   Following the rule that state courts should be guided by federal legislation and case law in matters presenting jurisidictional issues (Northwestern etc. R. Co. v. Ind. Acc. Com. (1946) 73 Cal.App.2d 367, 375, 166 P.2d 334), we apply federal authority to the case before us.

 b. The causes of action alleged here are not within the RLA.

 Pan Am contends the same facts and circumstances forming the factual basis for the defamation and intentional infliction of emotional distress causes of action were inextricably intertwined with the issues to be determined in the grievance proceeding and appeal, as provided for in the RLA.   Therefore, it argues DeTomaso's claims are “minor disputes,” subject to the exclusive remedy provisions and dispute resolving machinery set up by the RLA, and, in fact, utilized by DeTomaso because of his contested discharge.

It is well settled that garden variety wrongful discharge actions, so-called “minor disputes” involving rights under the collective bargaining agreement are subject to the mandatory arbitration procedure provided in the RLA, and are routinely held to be within the exclusive jurisdiction of the arbitral authority created by the statute.  (Peterson v. Air Line Pilots Ass'n, Intern. (4th Cir.1985) 759 F.2d 1161, 1169.)

However, this is not a case where a plaintiff is simply trying to relabel claims arising from a discharge, as was attempted in Magnuson v. Burlington Northern, Inc. (9th Cir.1978) 576 F.2d 1367, cert. den. 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323.   The gravamen of DeTomaso's claims is not wrongful discharge;  DeTomaso claims to be the victim of torts which are legally independent of any contractual claims or grievances he may have that are arbitrable.

For that same reason, Pan Am's reliance on the recent Supreme Court case of Allis-Chalmers Corp. v. Lueck (1985) 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206, is misplaced.   In that case, an employee brought a state tort action for bad faith delay in making disability benefit payments due under a collective bargaining agreement.  Allis-Chalmers is not on point here, as the torts alleged by DeTomaso are factually distinguishable, and as indicated, independent of any arbitrable contractual claims or grievances.

We reject the reasoning of Majors v. U.S. Air, Inc. (D.Md.1981) 525 F.Supp. 853, which reaches a result advocated by Pan Am.   In Majors, the plaintiff sued his employer for false imprisonment and defamation as a result of his detention by his supervisors in an investigation of theft of company property.   The court held that so long as the claim is founded on some incident of the employment relationship, it is a minor dispute governed by the RLA, whether or not it is expressly governed by the collective bargaining agreement.  (Id., at p. 857.)

Majors was soundly criticized in Raybourn v. Burlington Northern R. Co. (W.D.Mo.1985) 602 F.Supp. 385, 388, which noted that under Majors, “no matter how outrageous the conduct of an employer's investigation of possible misconduct by an employee was, a state cause of action would be preempted.   For example, an employee whose home was broken into to search for evidence of a breach of company rules, e.g., theft of company property, would have no valid cause of action.”

 The exclusive remedy provisions of the RLA for minor disputes do not shield an employer from liability in tort for all outrageous acts that are committed in an employment setting.

In enacting the RLA, there was no effort to regulate labor-management relations in that portion of the economy comprehensively, or to divert from the courts every controversy between an employee and a railroad employer.   (Raybourn v. Burlington Northern R. Co., supra, 602 F.Supp. at p. 387.)   Courts in this circuit and in others have rejected efforts to push all controversies in this area into the exclusive jurisdiction of administrative bodies, particularly where the administrative remedies appear to be inadequate.  (See Balzeit v. Southern Pacific Transp. Co. (N.D.Cal.1983) 569 F.Supp. 986, 989;  Norman v. Missouri-Pacific Railroad (8th Cir.1969) 414 F.2d 73, 83;  Peters v. Missouri-Pacific Railroad Company (5th Cir.1973) 483 F.2d 490, 497, cert. den. 414 U.S. 1002, 94 S.Ct. 356, 38 L.Ed.2d 238.) 1 ,2

 The RLA does not cover outrageous conduct.   In Farmer v. Carpenters (1970) 430 U.S. 290, 302, 97 S.Ct. 1056, 1064, 51 L.Ed.2d 338, the Supreme Court held there was no federal protection or protection under a collective bargaining agreement against “outrageous” conduct.   Similarly, Balzeit v. Southern Pacific Transp. Co., supra, 569 F.Supp. at page 989, held neither the RLA nor the collective bargaining agreement protected against the alleged outrageous conduct of the railroad in requiring that the plaintiff dismiss his attorney as a condition to his reinstatement.

Nor does the RLA cover situations where the cause of action does not arise under the collective bargaining agreement.   In Raybourn v. Burlington Northern R. Co., supra, 602 F.Supp. at page 387, a former railroad employee's suit against the railroad complaining of false arrest and imprisonment was not preempted by the RLA, as those torts were legally independent of any arbitrable contractual claims or grievances.

 The harms DeTomaso suffered did not flow from his discharge, nor were they provided for in the collective bargaining agreement.   Simply because DeTomaso may have had an arbitrable claim for wrongful discharge does not mean he is limited to that remedy for the acts alleged in his complaint.   To work for an airline or a railway is not to submit to conduct so outrageous that it need not be endured by any person in a civilized society.   California has a substantial interest in protecting its citizens from tortious acts such as were perpetrated here.

 c. Applying the balancing test set forth in Farmer, DeTomaso's claims are not preempted by the RLA.

 Any analysis of the issue of preemption in the field of labor relations should begin with a balancing inquiry into such factors as the nature of the federal and state interests in the regulation and the potential for interference with federal regulation.   For a state action to survive, the state must have a substantial interest in the regulation of the conduct at issue, and that interest must not threaten undue interference with the federal regulatory scheme.   Inflexible application of the preemption doctrine is to be avoided, especially where upholding the state's regulation does not unduly interfere with the federal interest.  (Farmer v. Carpenters, supra, 430 U.S. at p. 302, 97 S.Ct. at p. 1064.) 3

 The party claiming preemption has the burden of proving it, because courts are reluctant to infer preemption.  (Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 548, 208 Cal.Rptr. 874, 691 P.2d 630, cert. den. 471 U.S. 1110, 105 S.Ct. 2345, 85 L.Ed.2d 861 (1985) citing Exxon Corp. v. Governor of Maryland (1978) 437 U.S. 117, 132, 98 S.Ct. 2207, 57 L.Ed.2d 91, and New York Dept. of Social Services v. Dublino (1973) 413 U.S. 405, 413, 93 S.Ct. 2507, 2513, 37 L.Ed.2d 688.)

The State of California, through its judiciary, has indicated the state has a substantial interest in protecting its citizens from outrageous conduct and/or the intentional infliction of emotional distress.  (Farmer v. Carpenters, supra, 430 U.S. at pp. 302–303, 97 S.Ct. at pp. 1064–65; Balzeit v. Southern Pacific Transp. Co., supra, 569 F.Supp. at p. 989;  and see Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216;  State Rubbish Etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 240 P.2d 282.)

The Ninth Circuit, applying in Balzeit the second prong of the Farmer test which requires that the state's substantial interest not threaten undue interference with the federal scheme, held:  “In regard to the potential for overlap into an area of primary federal concern, it should be noted that the state court, in reviewing the merits of Balzeit's Second and Third Causes of Action [for intentional infliction of emotional distress], would only peripherally concern itself with the merits of the underlying labor dispute.   While the record shows that Balzeit is currently seeking reinstatement by pursuing a grievance through the National Railroad Adjustment Board, he seeks only damages in his Amended Complaint.   Thus, there is virtually no chance that Balzeit's state court action would conflict with the administrative mechanism provided for under the RLA.”  (Balzeit v. Southern Pacific Transp. Co., supra, 569 F.Supp. at pp. 989–990.)

 Such is precisely the case here.   DeTomaso only sought damages for his defamation and intentional infliction of emotional distress claims, so that his state court action did not conflict with the administrative procedure under which he sought reinstatement and back pay.  Raybourn v. Burlington Northern R. Co., supra, 602 F.Supp. at page 388, addressing this same issue, concluded there was little or no risk that the tort claims would interfere with the effective administration of the RLA or with congressional intent in enacting the legislation.

DeTomaso's claims for defamation and intentional infliction of emotional distress are not preempted by the RLA, as any interference with the federal legislative scheme is at most speculative, and certainly does not outweigh the substantial state interest present here.4

 2. The trial court's order granting the new trial is reversed for its failure to specify the grounds upon which it was granted.

 Section 657 of the Code of Civil Procedure requires the trial court specify the ground or grounds upon which the new trial is granted, and its reasons for granting the new trial upon each ground stated.   The trial court's reason must do more than reiterate the ground of the ruling itself.   Where the specification of reasons is inadequate to comply with the mandate of Code of Civil Procedure section 657, the new trial order must be reversed, and the judgment is automatically reinstated (Widener v. Pacific Gas & Electric Co., (1977) 75 Cal.App.3d 415, 437–438, 142 Cal.Rptr. 304, cert. den. (1978) 436 U.S. 918, 98 S.Ct. 2265, 56 L.Ed.2d 759), notwithstanding the fact that the trial court conditionally granted a new trial on the issue of damages only on the ground the award was excessive unless plaintiff consented to a remittitur.  (Oberstein v. Bisset (1976) 55 Cal.App.3d 184, 127 Cal.Rptr. 413.)

 Pan Am concedes the trial court erred in failing to specify the grounds upon which it granted the new trial order, but contends it is harmless in that the verdict is reversible on other grounds.   We do not find the verdict reversible on other grounds, and because the order granting a new trial is being set aside, the underlying judgment is reinstated in its entirety.   The only effect of setting aside the new trial order is to reinstate the jury's verdict which followed its consideration of the evidence.

The trial court did indicate it found the damages excessive.   We recognize that Farmer v. Carpenters, supra, 430 U.S. at page 306, 97 S.Ct. at page 1066, imposes upon state trial courts the responsibility in cases of this kind to assure that damages awarded are not excessive.   However, the powers and duties of a trial judge in ruling on a motion for a new trial and of an appellate court on an appeal from a judgment are very different when the question of an excessive award of damages arises.   The trial judge sits as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses.  (Seffert v. Los Angeles Transit Lines  (1961) 56 Cal.2d 498, 507, 15 Cal.Rptr. 161, 364 P.2d 337.)

 An appellate court has no such powers.   For this court to hold an award excessive it must be so large as to indicate passion or prejudice on the part of the jurors.  “ ‘The question is not what this court would have awarded as the trier of the fact, but whether this court can say that the award is so high as to suggest passion or prejudice.’ ”   (Ibid.)  The amount of damages is a fact question, and as there is no accurate standard by which to compute the injury, the jury must necessarily be left to the exercise of a wide discretion.  (Id., at pp. 506–507, 15 Cal.Rptr. 161, 364 P.2d 337.)   In the instant case, while the sum awarded appears to be large, the amount cannot be said to be so grossly excessive as to indicate such improper passion or prejudice.

 When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or not, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.   If substantial evidence is present, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.  (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874, 197 Cal.Rptr. 925.)   In the instant case, there were conflicts in the evidence, but credibility is the province of the fact finder.   The record reflects substantial evidence to support the judgment.

 3. A valid contract existed between Pan Am and DeTomaso for the sale and purchase of the salvage.

Pan Am contends both it and DeTomaso intended and understood that he was buying undeliverable salvage, so that there was an absence of mutual consent necessary to create a contract.  (Civ.Code, §§ 1550, 1565, 1567, 1580.)

 “When concerned with the essential elements of consent a careful distinction must be made between a consent that is not free because it was obtained by duress, menace, fraud, undue influence or mistake (Civ.Code, §§ 1565, 1567) and a consent that is not mutual because the parties did not agree upon the same thing in the same sense (Civ.Code, §§ 1565, 1580).   (See 1 Williston on Contracts (3d ed.1957) § 20, pp. 35–36.)   In the situation where the consent is not free [as in the instant case because of mistake] the contract is not absolutely void, but may be rescinded by the parties.   (Civ.Code, § 1566.)”  (Chakmak v. H.J. Lucas Masonry, Inc. (1976) 55 Cal.App.3d 124, 129, 127 Cal.Rptr. 404.)   The party attempting to rescind must give prompt notice and restore, or offer to restore, everything of value received under the contract so that the other party can be placed in the status quo.  (Civ.Code, § 1691;  M.F. Kemper Const. Co. v. City of L.A. (1951) 37 Cal.2d 696, 701, 235 P.2d 7.)

 Pan Am's confiscation of the cargo from DeTomaso's garage does not satisfy the preconditions to rescission of giving prompt notice and restoring, or offering to restore, the consideration that was received.

 In the situation where the consent is not mutual because the parties did not agree upon the same thing in the same sense, it generally is stated there is no contract.  (Chakmak v. H.J. Lucas Masonry, Inc., supra, 55 Cal.App.3d at p. 129, 127 Cal.Rptr. 404.)   The existence of mutual consent is determined by objective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe.   Accordingly, the primary focus in determining the existence of mutual consent is upon the acts of the parties involved.  (Meyer v. Benko (1976) 55 Cal.App.3d 937, 942–943, 127 Cal.Rptr. 846.)

 Substantial evidence supports a finding of mutual consent to create a valid contract.   Pan Am and DeTomaso agreed on the same thing, namely, the sale and purchase of bins of cargo.   The contention that Roark, Pan Am's employee, lacked authority to sell the cargo is similarly without merit.

 4. Damages were not excessive.

In accordance with the law, the jury rendered a single verdict without indicating how it arrived at the award of $265,000 general damages and $300,000 punitive damages.   However, in the proposed remittitur the trial court allowed $48,750 for the batteries sold to, and then confiscated from, DeTomaso.

 Pan Am argues $48,750 is excessive in light of the fact that they were purchased in Hong Kong for $3,991 and DeTomaso offered to sell them for $2,015.   However, there was testimony before the jury that the 13,000 batteries had a wholesale value of $3.75 each, for a total of $48,750, so that substantial evidence supports that award.

 Pan Am contends the damages for defamation and emotional distress were equally excessive.   The measure of damages is a factual question within the province of the trier of fact.   A judgment will only be reversed for excessiveness when the entire record, viewed most favorably to the judgment, indicates the judgment was rendered as the result of passion and prejudice on the part of the jurors.  (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 65, fn. 12, 118 Cal.Rptr. 184, 529 P.2d 608.)

We cannot conclude that the award of damages could be so characterized in the instant case.

 As for the size of the punitive damage award, the wealthier the wrongdoing defendant, the larger the award need be to accomplish its objective.  (Id., at p. 65, 118 Cal.Rptr. 184, 529 P.2d 608.)   The vast wealth of Pan Am warrants a large award.   Nor do the punitive damages appear excessive when compared to the compensatory damage award.  Chodos v. Insurance Co. of North America (1981) 126 Cal.App.3d 86, 103–104, 178 Cal.Rptr. 831, upheld an award of punitive damages almost forty times the compensatory award.

For reasons set forth in our discussion of general damages, the award of punitive damages is likewise not excessive.

 5. The jury was properly instructed on punitive damages and on defamation.

 Punitive damages can be properly awarded against a principal if the agent is employed in a managerial capacity and acted within the scope and course of employment.  (Hale v. Farmers Ins. Exch. (1974) 42 Cal.App.3d 681, 691, 117 Cal.Rptr. 146.)

 Here, Startzell was Pan Am's Director for Security on the West Coast, Honolulu, and Central America.   Startzell accused DeTomaso of theft in front of his son, and used self-help under color of authority through his friend, the FBI agent, to confiscate part of the cargo DeTomaso had purchased.   John Solomito, Director of Cargo for Pan Am, and Jim Miller, Labor Relations Manager, in conversations with Saroop Chandiramani, business representative for the union local, accused DeTomaso of theft as a basis for a potential discharge, in spite of their knowledge that there had been a sale, that there had not yet been a filing of a grieveance to start the grievance procedure, and that DeTomaso's attorney had advised Pan Am twice, in writing, that he was representing DeTomaso in this matter.

The instruction on punitive damages was properly given, as these agents were employed by Pan Am in a managerial capacity.

 Pan Am maintains it was error to instruct the jury as a matter of law that the statement “plaintiff was a thief” is slanderous on its face.   Pan Am argues such an instruction did not require the jury to determine malice to support an award of punitive damages.   However, the instruction that was given correctly stated the law as it is set forth in Civil Code section 46, which, inter alia, defines slander as a false statement charging any person with crime.   The record indicates the trial court then proceeded to instruct the jury on malice, specifically instructing the jurors to determine whether the statement was intended to defame DeTomaso.

Pan Am's contention in this regard is without merit.

 Pan Am also relies on Penal Code section 485 for the proposition that DeTomaso was a thief, that he had only himself to blame for his troubles, and that truth is not defamatory.

Penal Code section 485 states in pertinent part:  “One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, ․, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.”   (Emphasis added.)

DeTomaso did not “find” any property.   He purchased it from Pan Am.   The theft accusation is also at odds with Pan Am's position that there was mutual mistake based on its and DeTomaso's belief that the transaction was for undeliverable salvage.   Further, the theft accusation is a harsh one in that even if cargo is identifiable and deliverable, it can still be abandoned salvage if the consignee refuses it for any reason, if the consignee has moved and cannot be located, or if the cargo were lost, the claim of the consignee paid, and then the cargo located.

 Pan Am then claims Startzell's statement accusing DeTomaso of theft was not defamatory, because Startzell said it “appeared” DeTomaso had stolen the merchandise.   That is a difference without a distinction.   Merely because a statement is couched in equivocal terms makes it no less defamatory.   Language may be libelous on its face even though susceptible of innocent meaning, and the defamatory impact is measured by the natural and probable effect on the average person.  (Williams v. Daily Review, Inc. (1965) 236 Cal.App.2d 405, 410, 46 Cal.Rptr. 135;  Mullins v. Brando (1970) 13 Cal.App.3d 409, 414–415, 91 Cal.Rptr. 796, cert. den. 403 U.S. 923, 91 S.Ct. 2231, 29 L.Ed.2d 701 (1971).)

 Pan Am also raises the qualified privilege of Civil Code section 47, for statements between interested persons.   However, the privilege is lost if made with malice.   Malice was an issue decided by the jury.

 The privilege is also lost if defendant abuses the privilege by excessive publication.  (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 847, 115 Cal.Rptr. 582.)   Startzell's statement in the presence of DeTomaso's 10-year old son was clearly excessive, and not necessary to further the interest protected by the privilege.

 6. The presence of DeTomaso's daughter in the courthouse did not constitute grounds for a mistrial.

 At the bottom of the barrel is Pan Am's contention that its motion for mistrial should have been granted on the grounds that several of the jurors saw DeTomaso's disabled young daughter in an elevator at the courthouse, despite an earlier discussion in chambers that her condition would be kept from the jury, and that Pan Am was prejudiced as a result.   The girl's disability was not very obvious, and was manifested by a speech impairment.   Pan Am did not move to exclude her.   Further, there is no factual showing that her presence prevented Pan Am from having a fair trial.

We concur with the trial court's conclusion, “There's no way that they [jury] could connect that up to Pan American as being the culprit or the cause [of her disability]․”5

CONCLUSION

The RLA does not preempt every controversy arising in the employment setting.   Not every tortious act, no matter how outrageous, can be reduced to a “minor dispute” within the RLA.

Having weighed the state and federal interests, we determine the burden to the regulatory scheme is slight as compared to California's interest in protecting its citizens from the wrongs complained of here.

DISPOSITION

The order granting the new trial is reversed, and the judgment is reinstated and affirmed.

Parties to bear their own costs on appeal.

FOOTNOTES

1.   See also Stevens v. Braniff Airways, Inc. (D.Minn.1980) 490 F.Supp. 231, 233, which held that although the district court lacked jurisdiction over a breach of contract claim, which was a minor dispute under the RLA, it had jurisdiction over a sex discrimination claim alleging the airline had breached an agreement with its flight attendants while treating predominantly male categories of employees differently.

2.   Our own Supreme Court has recognized the trend toward allowing an action at law for injuries suffered in the employment if the employer acts deliberately for the purpose of injuring the employee.   It has noted that while an employee might be willing to surrender an action at common law for the ordinary type of work-related injuries, it is not equally clear that an employee contemplates assault or other intentional misconduct on the part of the employer.  (Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 476–477, 165 Cal.Rptr. 858, 612 P.2d 948.)   See also Renteria v. County of Orange (1978) 82 Cal.App.3d 833, 841–842, 147 Cal.Rptr. 447, holding that damages for intentional infliction of emotional distress unaccompanied by physical injury may be sought in an action at law as an implied exception to the exclusive remedy provisions of the workers' compensation law because the system provides no remedy for a nonphysical injury in the employment.   The court reasoned the legislature did not intend to deny an employee all redress for that tort.

3.   Farmer examined the conflict between state law and the National Labor Relations Act.   This case, on the other hand, involves federal-state relations under the RLA, but despite the fact that preemption under the RLA has been more complete, Peterson v. Air Line Pilots Ass'n, Intern., supra, 759 F.2d at page 1169, the problems and considerations are analogous, Railroad Trainmen v. Terminal Co. (1969) 394 U.S. 369, 89 S.Ct. 1109, 22 L.Ed.2d 344, and courts have applied standards adopted in NLRA preemption cases to RLA cases.  (E.g., Beers v. Southern Pacific Transp. Co. (9th Cir.1983) 703 F.2d 425;  Magnuson v. Burlington Northern, Inc., supra, 576 F.2d 1367;  Majors v. U.S. Air, Inc., supra, 525 F.Supp. 853;  Jackson v. Consolidated Rail Corp., (7th Cir.1983) 717 F.2d 1045, cert. den. 465 U.S. 1007, 104 S.Ct. 1000, 79 L.Ed.2d 233 (1984).)

4.   DeTomaso has raised some questions as to the constitutionality of preempting his claims.   Because there is no preemption here, we need not examine those issues at this time.   Separately, DeTomaso has also raised some procedural issues as to the length and scope of Pan Am's briefs.   Likewise, because DeTomaso has prevailed on other grounds, it is unnecessary to reach those questions.

5.   This court's review is limited to the record of the trial.   Pan Am cannot relitigate the case on appeal.  “ ‘The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them.   If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.’ ”  (Sommer v. Martin (1921) 55 Cal.App. 603, 610, 204 P. 33;  9 Witkin, Cal. Procedure (3d ed.1985) Appeal, § 311, p. 322.)Had an order for a new trial been prepared which properly specified the reasons for its being granted, the new trial order could have been upheld.Had special instructions been requested:  (1) on punitive damages instructing the jury that only the actions of policy-making managerial employees could impose liability upon Pan Am for punitive damages;  (2) pursuant to Farmer v. Carpenters, supra, 430 U.S. at page 306, 97 S.Ct. at page 1066, instructing the jury that any emotional distress resulting from wrongful discharge was not compensable;  and (3) pursuant to Civil Code section 2224, which provides, inter alia, that one who gains a thing by mistake becomes an involuntary trustee thereof, the outcome of the trial might have been different.“In order to complain of failure to instruct on a particular issue the aggrieved party must request the specific proper instruction.”  (7 Witkin, Cal. Procedure (3d ed.1985) Trial, § 242, p. 248.)   There is neither reason nor justification for compelling a trial judge to act as a sort of advisory or “backup” counsel, as proposals for instructions are part of the employed attorneys' trial strategy and tactics.   Beyond the duty of the trial court to see that jurors are guided on controlling legal principles, in the absence of a specific request by a party, there is no duty to instruct.  (Id., § 243, p. 150.)

KLEIN, Presiding Justice.

LUI and ARABIAN, JJ., concur.

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