Harris v. Arkansas Book Co., 85-116

• Citation: 287 Ark. 353,700 S.W.2d 41
• Decision Date: 18 November 1985
• Docket Number: No. 85-116,85-116
• Parties: , 121 L.R.R.M. (BNA) 2117 Wilford HARRIS, Appellant, v. ARKANSAS BOOK COMPANY, Carolyn Gibson, H. Allen Gibson, Mary Jane Winter, and Judy W. Sayer, Appellees.
• Court: Supreme Court of Arkansas

Page 41

700 S.W.2d 41

287 Ark. 353, 121 L.R.R.M. (BNA) 2117

Wilford HARRIS, Appellant, v. ARKANSAS BOOK COMPANY, Carolyn Gibson, H. Allen Gibson, Mary Jane Winter, and Judy W. Sayer, Appellees.

No. 85-116.

Supreme Court of Arkansas.

Nov. 18, 1985.

Rehearing Denied Jan. 13, 1986.

Richard Quiggle, Little Rock, for appellant.

Friday, Eldredge & Clark by Bill S. Clark and Michael S. Moore, Little Rock, for appellees.

DUDLEY, Justice.

Appellant, Wilford Harris, filed suit alleging wrongful termination of his employment by appellees, Arkansas Book Company and its four owner-partners. He sought tort damages for (1) the intentional infliction of emotional distress and (2) bad faith discharge. He sought contract damages for (1) breach of his employment contract and (2) breach of a promise to pay him a pension. The trial court granted a directed verdict on the tort claims, but let the contract claims go to the jury. The jury returned a $93,700 verdict for appellant. The trial court then granted a judgment notwithstanding the verdict on the ground that the employment contracts are unenforceable under the Statute of Frauds. We affirm.

In the early and mid-1930's, appellant Harris was a summertime employee of the Arkansas Book Company, a book depository. In 1938, he became a full-time employee and, from that time until his discharge in 1979, he served as manager of appellees' warehouse. He never had a written contract of employment. He was assured by a previous partner-owner that he could have his job "for many more years" and that the company would pay him some unspecified type of pension. The company had no stated or organized pension plan for its employees, although one employee did receive periodic payments for two years immediately following his retirement.

At appellant's discharge, J.D. Harris, appellees' general manager, and Carolyn Gibson, one of the partners, held a discussion with appellant. They told him that he had been an unsatisfactory employee by refusing to follow management directives, by keeping irregular hours, by acting outside his authority, and most importantly, his salary of $28,000.00 was more than the job called for and more than they could pay. He was given two weeks of unused vacation time, but no severance pay.

Appellant later applied for unemployment compensation benefits, and the appellees contested the claim. One of the grounds given by appellees for appellant's discharge involved ordering some labels without first obtaining management's permission. It was established at trial that appellees did not know of the incident until after appellant had been discharged. In addition, appellant put on proof that he got along well with publishers' representatives as well as with the majority of his fellow workers.

Appellant first contends that the trial court erred in directing a verdict against him on his claim of intentional infliction of emotional distress. Viewing the evidence in the light most favorable to appellant, as we must do, we do not find sufficient evidence to hold that fair minded people might have found appellees liable for the tort of emotional distress.

As a matter of law, we recognize the tort cause of action for the intentional infliction of emotional distress, sometimes called the tort of outrage. M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). In Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982), we stated:

The new and still developing tort of outrage is not easily established. It requires clear-cut proof. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." [Citations omitted.]

In Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984), we emphasized that the conduct must be both "extreme and outrageous," while in Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985), we explained that "clear-cut proof" does not mean greater proof than a preponderance of the evidence. It is for the trial court to determine, in the first instance, whether the conduct may be so extreme and outrageous as to permit recovery. Restatement of Torts (2d), § 46, Comment h (1965); Givens v. Hixson, supra.

The trial judge was unquestionably right in granting the directed verdict on the count alleging the tort of outrage. The gravamen of appellant's argument is that he was discharged after working for the book company for 49 years. Because of the employer's right to discharge an at-will employee, a claim of outrage by an at-will employee cannot be predicated upon the fact of the discharge alone. However, the manner in which the discharge is accomplished or the circumstances under which it occurs may render the employer liable. M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). To be actionable the employer's conduct must be so extreme and outrageous as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. The discharge of a long time employee alone does not meet that test. Appellant also argues that the tort of outrage was inflicted because he was promised employment until the age of 70 and "lost four years salary at $28,000 a year and an expected pension" as a result of his wrongful termination. While the breaking of some promises may well constitute conduct utterly intolerable in a civilized community, this is not such a case. There was no testimony that appellant was promised employment until he was 70 years old. Appellant testified that he received letters from earlier partners which concluded with phrases such as "looking forward to a continued employment or association for many more years." Such statements were nothing more than...