Dake v. Tuell

• Citation: 687 S.W.2d 191
• Decision Date: 02 April 1985
• Docket Number: No. 66541,66541
• Parties: 118 L.R.R.M. (BNA) 3449, 104 Lab.Cas. P 55,569, 2 IER Cases 594 James J. DAKE and Velva Fausett, Plaintiffs-Appellants, v. Eldon TUELL and Robin Hubbard, Defendants-Respondents.
• Court: United States State Supreme Court of Missouri

Page 191

687 S.W.2d 191

118 L.R.R.M. (BNA) 3449, 104 Lab.Cas. P 55,569,

2 IER Cases 594

James J. DAKE and Velva Fausett, Plaintiffs-Appellants, v. Eldon TUELL and Robin Hubbard, Defendants-Respondents.

No. 66541.

Supreme Court of Missouri En Banc.

April 2, 1985.

John E. Chick, Jr., Kansas City, for plaintiffs-appellants.

Eldon Tuell, Robin Hubbard, pro se.

Michael E. Kaemmerer, Thomas W. McCarthy, Diana K. Wieland, St. Louis, for amicus curiae Missouri Merchants & Manuf. Ass'n.

W. James Foland, William E. Quirk, Kansas City, for amicus curiae Westmo Def. Lawyers Ass'n.

Paul Schroeder, St. Louis, for amicus curiae Missouri Hosp. Ass'n.

BILLINGS, Judge.

The sole issue in this case is whether discharged at will employees can maintain a suit for wrongful discharge against their former employers by cloaking their claims in the misty shroud of prima facie tort. The trial court dismissed plaintiffs' petitions for failure to state a cause of action. We affirm.

Defendants Eldon Tuell and Robin Hubbard are the owners of a Lowrey Organ Center where plaintiffs were employed. Plaintiff Dake was employed as a manager and plaintiff Fausett as an organ instructor. In June of 1982, plaintiffs were fired after informing defendants that other employees at the store were making fraudulent misrepresentations to customers.

Plaintiffs each brought suit against defendants in the Circuit Court of Clay County--alleging in count one of each petition that their dismissals were intended to cause injury and were without justification and in reckless disregard of plaintiffs' rights. The second count in each petition repeated these allegations, along with the additional averment that defendants had discharged plaintiffs in complete disregard of their state and federal constitutional rightsDefendants moved for dismissal under Rule 55.27(a)(6)--arguing that both petitions had failed to state claims upon which relief could be granted. This motion was sustained, and plaintiffs sought review in the Missouri Court of Appeals, Western District. ¹ The court of appeals held that plaintiffs had stated claims upon which relief could be granted and reversed the trial court's dismissal orders. However, a dissenting judge transferred the case to this Court because he viewed the principal opinion as being in conflict with prior decisions of this Court. We now decide the case as if originally appealed to this Court. Mo. Const. art. V, § 10.

In Missouri it is firmly established that absent a contrary statutory provision, an at will employee ² cannot maintain an action for wrongful discharge against his former employer. ³ Amaan v. City of Eureka, 615 S.W.2d 414, 415 (Mo. banc 1981), cert. denied, 454 U.S. 1084, 102 S.Ct. 642, 70 L.Ed.2d 619 (1981). Accord, Howe v. St. Louis Union Trust Company, 392 S.W.2d 625, 627 (Mo.1965). See also Carr v. Montgomery Ward & Company, 363 S.W.2d 571, 574 (Mo.1963).

Here, plaintiffs would have us render near impotent this long standing legal principle--by establishing a rule that would permit an at will employee to bring an action for wrongful discharge under the guise of the prima facie tort doctrine. ⁴ This we decline to do.

Under Missouri's employment at will doctrine an employer can discharge--for cause or without cause--an at will employee who does not otherwise fall within the protective reach of a contrary statutory provision and still not be subject to liability for wrongful discharge. Amaan v. City of Eureka, supra, at 415. Therefore, it follows that unless there is a contrary statutory provision upon which to base his claim, an at will employee must set forth in his petition for wrongful discharge "the essential elements of a valid contract, and a discharge in violation thereof." Maddock v. Lewis, 386 S.W.2d 406, 409 (Mo.1965), cert. denied, 381 U.S. 929, 85 S.Ct. 1569, 14 L.Ed.2d 688 (1965).

In the present case, it is conceded by all that plaintiffs were at will employees. Their pleadings are completely barren of any allegations concerning the existence of an employment contract and a discharge in violation of its provisions. Nor have plaintiffs attempted to ground their claims on a contrary statutory provision. Absent such allegations, the petitions do not invoke substantive principles of law sufficient to entitle them to relief in a Missouri court of law.

Judgments affirmed.

RENDLEN, C.J., and WELLIVER, HIGGINS, GUNN and DONNELLY, JJ., concur.

BLACKMAR, J., concurs in result in separate opinion filed.

BLACKMAR, Judge, concurring in result.

The alleged reason for the discharge of plaintiff Dake is set forth in his petition as follows:

Plaintiff had reported improper sales practices and fraudulent misrepresentations being made by another employee of the defendants.

Plaintiff Fausett's petition contains similar allegations.

I agree that the alleged discharges for "whistle blowing" should not give rise to a claim for damages for wrongful termination. Such a holding is supported by the great weight of modern authority. See Krauskopf, "Employment Discharge: Survey and Critique of the Modern At Will Rule," 51 UMKC Law Review 190, 237-239. The principal opinion need go no further than this.

The principal opinion, however, purports to establish an ironclad rule that there may be no action for wrongful termination in the absence of contract or statute. I do not believe that it is desirable to circumscribe future courts in this manner. Professor Krauskopf, in the article cited above, sets forth numerous exceptions to the "common law rule" of discharge at will. I want to be free to consider these situations as they arise.

In Lucas v. Brown and Root, Inc., 736 F.2d 1202 (8th Cir.1984) Judge Richard Arnold analyzed Arkansas law, which seems to maintain the "at will" rule just as ours does, and held that a complaint alleging that the female plaintiff was discharged because she refused to sleep with her foreman stated a claim. To the extent that the sweeping pronouncements of the principal opinion would preclude a claim such as this under our law, I disagree.

The principal opinion cites Amaan v. City of Eureka, 615 S.W.2d 414 (Mo. banc 1981), as the recent authoritative case on the point. Amaan was grossly overwritten. There the record showed that a police officer was discharged because of a reduction in force. All that needed to be said was that the law did not guarantee him continued employment.

Our Court has been very willing to consider modern developments in the law of torts and to overrule or distinguish earlier cases which seemed to stand in the way. See, e.g., Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo.1969) and Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434 (Mo. banc 1984), products liability; Abernathy v. Sisters of St. Mary's, 446 S.W.2d 599 (Mo. banc 1969), charitable immunity; Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), comparative negligence; Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977), sovereign immunity. ¹ This list is not complete. The principal opinion may tend to inhibit the common law process with regard to wrongful termination by its unnecessarily broad pronouncements. I hope that future courts realize that it is...