Counce v. M. B. M. Co., Inc., CA
| Decision Date | 17 October 1979 |
| Docket Number | No. CA,CA |
| Citation | 266 Ark. 1064,597 S.W.2d 92 |
| Parties | Shirley Ann COUNCE, Appellant, v. M. B. M. COMPANY, INC., Appellee. 79-125. |
| Court | Arkansas Court of Appeals |
Parker & Henry, Jonesboro, for appellant.
Barrett, Wheatley, Smith & Deacon, Jonesboro, for appellee.
This is an appeal from a judgment of the Crittenden County Circuit Court granting appellee's motion for summary judgment and dismissing appellant's complaint with prejudice.
Neither the judgment nor the record reflect that the court made a finding there were no material issues of material fact. The complaint alleged appellant was a counter helper in the employ of appellee on February 2, 1977 and on the following day she was contacted by telephone by the manager of the appellee's eating establishment where she was employed and informed she was laid off, and was told some checks were missing from the previous night. In a later telephone conversation it was alleged the manager told her some money was missing and she would have to submit to a polygraph test. It was alleged upon submitting to the test it was determined she was innocent in connection with the missing funds, that she had difficulty obtaining the balance of her wages, thirty-three dollars was withheld from her check, and this was later paid after investigation by some federal or state agency. The complaint alleged the summary dismissal under the circumstances and refusal to pay wages due her was an outrageous course of conduct, designed and intended to cause severe emotional distress to appellant and the actions were in retaliation for alleged stealing, despite lack of evidence of theft by the appellant. It was further alleged that the dismissal of the plaintiff in such a manner breached the employment relationship in violation of public policy, and also caused a tortious injury to appellant because of severe emotional distress and damages to her reputation. It was further alleged appellee sought to prevent her from receiving unemployment benefits by reporting to the Employment Security Division that appellant was laid off due to numerous customer complaints, her bad attitude and her violation of company policies. The complaint sought damages for pain and mental suffering and exemplary damages for alleged willful and wanton action of the appellee.
Respective counsel stipulated that in addition to the pleadings the discovery depositions of Shirley Ann Counce, George Earl Counce, Jerrell Coleman Moss and Porter Moss, and also appellant's application for unemployment benefits would be included in the record on appeal.
The depositions reflect appellant was working with one other employee on the night shift on February 2, 1977 and had responsibility for the cash register, including inventory of funds in the register at the time of closing. The other employee had the key to the eating establishment and was responsible for locking up. The following day the manager called appellant and told her there was a shortage in monies in the register. Later in the day the manager called appellant and told her she was laid off because she had too much counter help. There was evidence there was no excess counter help. The appellee withheld $33.00 in excess of normal deductions from appellant's last pay. She took a polygraph test at the request of the appellee and it showed she had no connection with the money shortage. Notwithstanding this, appellee did not re-employ appellant or pay her the $33.00 withheld from her wages. The $33.00 was paid after an investigation by a federal or state agency.
Appellant applied for unemployment benefits and appellee sent a report to the Employment Security Division showing appellant was terminated "because of numerous customer complaints and that she failed to follow company policy."
Jerrell Moss, supervisor for the appellee owner of the food outlet, testified that he had telephone complaints from two customers about the service of a waitress meeting the description of appellant. The witness could not give the names of either of the parties making complaint. Appellant testified she called Mr. Moss, and asked why he had withheld her money and explained that she had passed the polygraph test and needed the money. He said, "I need mine, too."
Appellant filed a motion that appellee be required to permit appellant to inspect and copy non-privileged written statements of appellee taken by its liability insurance carrier incident to the claim pursuant to Ark.Stat.Ann. § 28-356. The appellee filed a response opposing the motion. The record discloses no disposition of the motion.
Appellant testified in her deposition that she was upset and hurt over the way the appellee had done her, that it had made her nervous and she had headaches and hurt all over, and that she felt humiliated in the presence of citizens of the community. The record does not disclose how many had keys to the place of business.
For reversal appellant contends the facts alleged in her complaint, if proven, constitute a cause of action in that the actions of the appellee constituted a breach of the employment relationship in violation of public policy; and that appellant suffered a tortious injury by the alleged wrongful acts of the appellee.
The cases cited by appellant in support of the allegation of a breach of the employment contract are cases from other jurisdictions in which there was held to be a breach of the employment contract, even though it was an employment at will, because the circumstances of the discharge involved violation of some right of the employee secured by statute. The case at bar does not involve the infringement of a right secured by statute and therefore we hold the complaint does not state a good cause of action for breach of contract.
However, on the allegation of a tort injury, a case of first impression in Arkansas appears to be posed on the question as to whether...
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