Dockery v. Lampart Table Co., No. 7718SC500
| Docket Nº | No. 7718SC500 |
| Citation | 244 S.E.2d 272, 36 N.C.App. 293 |
| Case Date | May 16, 1978 |
| Court | Court of Appeal of North Carolina (US) |
Page 272
v.
LAMPART TABLE COMPANY and U. S. Furniture Industries.
Morgan, Byerly, Post, Herring & Keziah by Charles L. Cromer, High Point, for plaintiff-appellant.
Schoch, Schoch & Schoch by Arch Schoch, Jr., High Point, for defendants-appellees.
[36 N.C.App. 294] MITCHELL, Judge.
The sole question before us is whether the plaintiff's complaint sets forth a claim upon which relief can be granted and was, therefore, improperly dismissed. As the defendant made the motion to dismiss pursuant to G.S. 1A-1, Rule 12(b)(6), for failure to state a claim upon which relief can be granted, the allegations of the complaint must be taken as true for purposes of this appeal. Smith v. Ford Motor Co., 289 N.C. 71, 80, 221 S.E.2d 282, 288, 79 A.L.R.3d 651, 662 (1976); Mazzucco v. Board of Medical Examiners, 31 N.C.App. 47, 50, 228 S.E.2d 529, 532, appeal dismissed, 291 N.C. 323, 230 S.E.2d 676 (1976). This is the proper method of testing the legal sufficiency of the complaint. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). We point out, however, that we express no opinion as to whether the allegations could be supported in fact.
The plaintiff's complaint made the following allegations:
Page 274
The plaintiff was employed by Lampart Table Company (hereinafter "Lampart") during February 1976. On 18 September 1976 a load of tables fell on him, while he was engaged in his work, injuring his neck and back. He was treated for his injury at High Point Memorial Hospital and, at defendants' insistence, by Dr. H. Bryan Noah.
Pursuant to the North Carolina Workmen's Compensation Act, G.S., Chapter 97, plaintiff notified defendant Lampart of the injury and his claim was processed through Lampart's workmen's compensation insurance carrier who paid the plaintiff $621.60 temporary total disability benefits and $164.75 for medical expenses for the calendar period 18 September 1976 to 29 November 1976.
On or about 23 November 1976, Dr. H. Bryan Noah certified that the plaintiff could return to work by 27 November 1976. Plaintiff returned to work then, although still suffering severe pain. He was fired by defendant Lampart on 6 December 1976 without a reason being given, and has been unable to find other employment since that time. Throughout the period of plaintiff's injury he was hesitant to file a claim for workmen's compensation benefits and hesitant to have an attorney represent him in the matter, for fear of losing his job. For the same reason, he was forced to put himself in the care of a physician of defendant's choice.
[36 N.C.App. 295] The plaintiff was fired from his job in retaliation for pursuit of his remedies under the North Carolina Workmen's Compensation Act, G.S., Chapter 97. This action was an attempt by the defendants to create a deleterious effect on the plaintiff's exercise of his statutory rights. Further it was an attempt by the defendants to create a device to relieve them from their obligations under the Act. These actions were wrongful, willful, and have injured the plaintiff's reputation and earning capacity.
The plaintiff's complaint alleges a tort theory heretofore unrecognized in this State, that of "retaliatory discharge." In his brief he has referred us to decisions by courts of other jurisdictions which recognize this tort. See generally, Annot., 63 A.L.R.3d 979 (1975).
In Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425, 63 A.L.R.3d 973 (1973), the Supreme Court of Indiana reversed the dismissal of a similar claim. There it was held that the plaintiff's allegation, that his employer fired him in retaliation for pursuit of his Indiana workmen's compensation rights, stated a claim upon which relief could be granted. The Indiana court held "retaliatory discharge" to be an exception to the contract rule allowing termination, without cause, of employment contracts for an indefinite duration, by either party thereto. Although no authority was cited to support this novel proposition, the Indiana court observed that there was a parallel development in landlord-tenant law. Some states have recognized "retaliatory eviction" as an affirmative defense in actions by landlords for possession of the rented premises. Edwards v. Habib, 130 U.S.App.D.C. 126, 397 F.2d 687 (1968); Schweiger v. Superior Court, 3 Cal.3d 507, 90 Cal.Rptr. 729, 476 P.2d 97 (1970); Portnoy v. Hill, 57 Misc.2d 1097, 294 N.Y.S.2d 278 (1968); Dickhut v. Norton, 45 Wis.2d 389, 173 N.W.2d 297 (1970); Wilkins v. Tebbetts, 216 So.2d 477 (Fla.App.1968). The court in Frampton further observed that one state had held a landlord's "retaliatory eviction" to be a sufficient basis for an affirmative cause of action. Aweeka v. Bonds, 20 Cal.App.3d 278, 97 Cal.Rptr. 650 (1971). For these reasons the Indiana court held "retaliatory discharge" to be a "device" within the meaning of the Indiana Workmen's Compensation Act and actionable.
The section of the Indiana Workmen's Compensation Act proscribing the use of "devices" to defeat the purpose of the Act is [36 N.C.App. 296] similar to our own G.S. 97-6 which prohibits the use of a "device" to relieve an employer of any of the obligations of Article 1 of our Act. G.S., Chapter 97. However our courts have expressly rejected the use of "retaliatory eviction" by a tenant as an affirmative defense in an action by a landlord for possession. Evans v. Rose, 12
Page 275
N.C.App. 165, 182 S.E.2d 591, cert. denied, 279 N.C. 511, 183 S.E.2d 686; 8 Strong, N.C. Index 3d, Landlord and Tenant, § 17.1, p. 262. Therefore, the reasoning of the Indiana court in Frampton is not applicable in this State. We deem this claim based upon "retaliatory discharge" not a claim upon which relief can be granted.The Texas Court of Civil Appeals recently affirmed the judgment on a verdict in favor of the plaintiff who was allegedly fired in retaliation for instituting a proceeding under the Texas Workmen's Compensation Act. Texas Steel Co. v. Douglas, 533 S.W.2d 111 (1976). The Texas Workmen's Compensation Act, however,...
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...Martin v. Tapley, 360 So.2d 708 (Ala.1978); Segal v. Arrow Indus. Corp., 364 So.2d 89 (Fla.App.1978); Dockery v. Lampart Table Co., 36 N.C.App. 293, 244 S.E.2d 272, cert. denied, 295 N.C. 465, 246 S.E.2d 215 (1978); Stephens v. Justiss-Mears Oil Co., 300 So.2d 510 (La.App.1974); Narens v. C......
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...wrongful discharge. WRONGFUL DISCHARGE At the threshold we are confronted by the decision of this Court in Dockery v. Lampart Table Co., 36 N.C.App. 293, 244 S.E.2d 272, disc. rev. denied, 295 N.C. 465, 246 S.E.2d 215 (1978). In that case, speaking through Judge Mitchell now Justice Mitchel......
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Boyle v. Vista Eyewear, Inc., No. WD
...Co., 397 So.2d 874, 876-77 (Miss.1981); Segal v. Arrow Industries Corp., 364 So.2d 89, 90 (Fla.App.1978); Dockery v. Lampart Table Co., 36 N.C.App. 293, 244 S.E.2d 272, 275-76 (1978); Martin v. Tapley, 360 So.2d 708, 709 12 Examples of such employees are found in the following cases: Thomps......
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...v. Tapley, 360 So.2d 708 (Ala.1978); Kelly v. Mississippi Valley Gas Co., 397 So.2d 874 (Miss.1981); Dockery v. Lampart Table Co., 36 N.C.App. 293, 244 S.E.2d 272 5 See also Blackburn, supra note 3, at 468-69 (the rule presumably offers the employee protection against harsh and changing emp......
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Coman v. Thomas Mfg. Co., Inc., No. 491A88
...failed to state an action for wrongful discharge when she alleged her discharge was arbitrary and without cause); Dockery v. Table Co., 36 N.C.App. 293, 244 S.E.2d 272, disc. rev. denied, 295 N.C. 465, 246 S.E.2d 215 (1978) (prior to enactment of the remedial statute, employee did not state......
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Malhotra v. Cotter & Co., No. 88-2880
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