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CP & B Enterprises3/3/2000
lity for punitive damages. As the majority opinion points out, from the evidence the jury could have found World Gym not liable on the theory of ratification but liable on the theory that it had negligently retained Rhoades as an employee. Such a finding would have made any punitive- damages award against World Gym inappropriate. Or, from that same evidence, the jury could have found World Gym liable on the theory that it wantonly retained Rhoades as an employee, but that World Gym's wantonness did not justify a punitive-damages award identical to the punitive-damages award the jury wished to impose against Rhoades for his separate torts of breach of privacy and assault and battery. But, the jury forms did not allow the jury to separate World Gym's liability for punitive damages from Rhoades's liability for punitive damages.
The jury returned a verdict against both defendants, assessing $25,000 in compensatory damages and $250,000 in punitive damages. The court entered a judgment on that verdict. The majority reverses the judgment in its entirety, even as to Rhoades. Its rationale for reversing as to World Gym is that "the jury was forced to impose punitive damages on World Gym if it wanted to impose punitive damages on Brad Rhoades." ___ So. 2d at ___. To be sure, Rhoades could have argued on appeal that the verdict form prejudiced him as well, because, for all that appears, the high punitive-damages award may have been based on a desire by the jury to punish World Gym for wantonness in retaining Rhoades, although, at the same time, if a separate verdict form had allowed it the latitude to do so, the jury may have determined that a substantially smaller award would be sufficient to punish him, or, in its discretion, it may have determined not to award punitive damages against him. However, on appeal Rhoades merely adopted the briefs of World Gym. Those briefs offer no reason for reversing the judgment as to Rhoades.
The majority relies on Alabama Power Co. v. King, 280 Ala. 119, 190 So. 2d 674 (1966). In that case the trial court's judgment held two automobile drivers and the power company jointly liable, based on a finding that they had caused the plaintiffs' house to burn as a result of an automobile's colliding with a power pole. On appeal, this Court determined that as to the power company the complaint should have been dismissed for a failure to aver negligence against the defendant. The automobile drivers argued on appeal that the negligence charged against them individually and the resulting damage to the plaintiffs were "not sufficiently conjoined as to cause and effect as to support a cause of action." 280 Ala. at 124, 190 So. 2d at 679. This Court reversed the entire judgment, pretermitting any discussion of the argument made by the individual defendants, who had in fact filed briefs asking for a reversal as to them. The Court stated that the pleadings and the proof rendered the claims against the power company and the two individual defendants "so intertwined as to be inseparable." 280 Ala. at 124, 190 So. 2d at 679.
Here, the majority reverses as to World Gym, accepting its argument of separability -- that the causes of action against it and the individual defendant are separable -- not an argument of inseparability, and then reverses as to Rhoades even though Rhoades, unlike the automobile drivers in King, makes no separate argument that he was the victim of any injustice.
I respectfully dissent as to Part V.
Johnstone and England, JJ., concur.
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