Allen v. Safeway Stores Inc.

• Decision Date: 02 May 1985
• Docket Number: No. 84-108,84-108
• Citation: 699 P.2d 277
• Parties: 120 L.R.R.M. (BNA) 2987, 104 Lab.Cas. P 55,564 David R. ALLEN and Barbara Allen, Appellants (Plaintiffs), v. SAFEWAY STORES INCORPORATED, a Maryland corporation, the State of Wyoming Department of Health and Social Services, G.E. Rock, Sam Uresk, Doe I and Doe II, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 277

699 P.2d 277

120 L.R.R.M. (BNA) 2987, 104 Lab.Cas. P 55,564

David R. ALLEN and Barbara Allen, Appellants (Plaintiffs), v. SAFEWAY STORES INCORPORATED, a Maryland corporation, the State of Wyoming Department of Health and Social Services, G.E. Rock, Sam Uresk, Doe I and Doe II, Appellees (Defendants).

No. 84-108.

Supreme Court of Wyoming.

May 2, 1985.

C.M. Aron and Sid L. Moller of Aron and Hennig, Laramie, for appellants.

Jack D. Palma, II, Carol A. Statkus, and Marilyn Kite of Holland & Hart, Cheyenne; Kathryn E. Miller and Gregory A. Eurich of Holland & Hart, Denver, Colo., for appellees Safeway Stores, Incorporated and G.E. Rock.

Vincent J. Horn, Jr., Cheyenne, for appellees The State of Wyoming Department of Health and Social Services and Sam Uresk.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

ROONEY, Justice.

Appellants David R. Allen and Barbara Allen were employees of appellee Safeway Stores, Incorporated (Safeway). Appellee Sam Uresk (Uresk) is an employee of appellee State of Wyoming Department of Health and Social Services (State), and as such conducted an inspection of the Safeway store at Rock Springs, which was under the management of David R. Allen, and of the Safeway store at Green River, which was under the control of Barbara Allen, as assistant manager in the absence of the store manager. David Allen and Barbara Allen are married. The inspection was with reference to the Special Supplemental Food Program for Women, Infants and Children (WIC) being administered by the State. After Uresk reported bad attitudes by the Allens to appellee G.E. Rock (Rock), immediate supervisor to David R. Allen and immediate supervisor of the store manager at Green River, who was the immediate supervisor of Barbara Allen, Rock discharged the Allens from their positions.

The Allens brought this action against Uresk and the State for intentional interference with a contract and against Rock and Safeway for breach of contract and for violation of public policy. The trial court granted the motion of the State and Uresk for summary judgment, and it dismissed the complaint against Rock and Safeway with prejudice. Appellants appeal from the summary judgment and the dismissal of the complaint.

We affirm.

SUMMARY JUDGMENT

A summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), W.R.C.P. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of the cause of action. Johnson v. Soulis, Wyo., 542 P.2d 867 (1975).

The basic facts in this case are not disputed. Uresk's inspections were for the purpose of determining whether or not the stores were complying with the WIC requirements; e.g., requesting ID folders from WIC customers, selling only approved foods to WIC customers, etc. She found the Rock Springs store fully in compliance with the WIC program and complimented the check-out clerk for following the WIC guidelines. The clerk asked Uresk to pass on the compliment to the clerk's supervisor, David Allen. During her conversation with David Allen, Uresk asked him if he had completed a price survey which she had requested by mail. Completion of the price survey was not required by the contract between WIC and the store, and David Allen said he had thrown the form away. He said to Uresk that if she wanted the survey, she should do it herself and that he did not approve of the program or of the government paying people to sit around on their derrieres. Uresk said he used the word " 'asses.' " David Allen said he used the word " 'butts.' " In her deposition, Uresk testified that at that time she assumed he was talking about the WIC participants, and it was not until she read the complaint that she knew he was talking about the State people. She noted that WIC participants often had to be coaxed into going back into a store because of rude treatment there and embarrassment caused to them there.

The day following the inspection of the Rock Springs store, Uresk inspected the Green River store and found it in noncompliance with the WIC program in many areas. When she discussed the inspection with Barbara Allen, Uresk advised Barbara Allen of the statement made by David Allen relative to not approving of the government paying people to sit around on their derrieres. Barbara Allen said that she agreed with her husband and that the program took up too much of their time. Barbara Allen asked if the 7-Eleven or Mini-Mart stores were on the program, and when she was told that they were, she asked why the program was not turned over to them since they needed the business, not Safeway. Later on it was determined that Barbara Allen was not distinguishing between the WIC program and the food stamp program, and that much of her criticism was of the food stamp program.

Upon returning to her office, Uresk telephonically advised Rock of her problems with the Allens. He asked her to put the information into a letter to him. She did so, writing a separate letter concerning each store. Appellants were discharged from their positions. In his deposition, Rock testified that Uresk's complaint was a major reason for discharge of David Allen, although he specified a number of customer and employee complaints which contributed to the action. He further testified that the major reason for discharge of Barbara Allen was customer and employee complaints, although Uresk's complaint contributed to the discharge cause.

Applying these facts to the elements of the tort of intentional interference with a contract, we find that appellants cannot recover as a matter of law. We have accepted the definitions relative to "One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract." (Emphasis added.)

the tort of intentional interference of a contract as set forth in the Restatement of Torts 2d. Martin v. Wing, Wyo., 667 P.2d 1159 (1983). Section 766, 4 Restatement of Torts 2d (1979), provides:

If the interference is not improper a necessary element of the tort is lacking. Section 772 of 4 Restatement of Torts 2d, supra, provides in pertinent part:

"One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other's contractual relation, by giving the third person

"(a) truthful information, * * * "

Common sense requires recognition of the propriety of one who is a customer or a business contact of a public-related enterprise to truthfully notify the owners or those in the management echelon of treatment accorded to such customer or business contact by those employed by the enterprise. Many businesses publicly request such comments. Some furnish forms with services or products upon which comments concerning such treatment are requested to be noted for return to the employer. Whether solicited or not, comments or notifications, truthfully given, cannot become actionable for tortious interference with a contract of employment. The comment to § 772 of 4 Restatement of Torts 2d reads:

"b. Truthful information. There is of course no liability for interference with a contract or with a prospective contractual relation on the part of one who merely gives truthful information to another. The interference in this instance is clearly not improper. This is true even though the facts are marshaled in such a way that they speak for themselves and the person to whom the information is given immediately recognizes them as a reason for breaking his contract or refusing to deal with another. It is also true whether or not the information is requested. * * * "

There is no issue or question concerning the information furnished by Uresk to appellants' employer. It was contained in two letters which were made exhibits to depositions. The record contains nothing to contest the truth of the contents of the letters. Thus, there is no genuine issue of a material fact, and, since the information upon which the action against Uresk and the State is premised is true, the action must fail as a matter of law.

DISMISSAL OF COMPLAINT

Appellants word the issue relative to the dismissal of their complaint against Safeway and Rock as follows:

"Whether it is wrongful as contrary to public policy to discharge an employee for the reason that she is married to, and agrees with an opinion expressed by, another employee who has been discharged."

Section 5.01(2), W.R.A.P., requires appellants to set forth the issues presented for review, and perhaps we should limit our review in this case to the one issue set forth, Cline v. Safeco Insurance Companies, Wyo., 614 P.2d 1335 (1980). However, because of the table of contents contained in appellants' brief and the topical arrangement of the arguments therein, we will consider the statement of the issues to be in the nature of a typographical or unintentional error of omission and recognize that appellants contend that (1) the complaint stated a claim for breach of employment contract by Rock and Safeway, and (2) the complaint stated a tort claim for wrongful discharge as a matter of public policy even if the employment of appellants was at will. ¹

"When considering a motion to dismiss a complaint, pursuant to Rule 12(b)(6), W.R.C.P., on the ground that it fails to state a claim on which relief can be granted, the facts alleged in the complaint are admitted and the allegations must be viewed in the light most favorable to the plaintiffs. State Highway Commission v. Bourne, Wyo.1967, 425 P.2d 59 [1967]. We therefore treat as true...