Horn v. Davis Elec. Constructors, Inc., 1487

• Court: Court of Appeals of South Carolina
• Writing for the Court: CURETON
• Citation: 302 S.C. 484,395 S.E.2d 724
• Parties: George Earl HORN, Respondent, v. DAVIS ELECTRICAL CONSTRUCTORS, INC., Appellant. . Heard
• Docket Number: No. 1487,1487
• Decision Date: 24 January 1990

Page 724

395 S.E.2d 724 302 S.C. 484 George Earl HORN, Respondent,
v.
DAVIS ELECTRICAL CONSTRUCTORS, INC., Appellant. No. 1487. Court of Appeals of South Carolina. Heard Jan. 24, 1990.
Decided April 16, 1990.

Page 725

[302 S.C. 486] Wallace K. Lightsey of Wyche, Burgess, Freeman & Parham, Greenville, for appellant.

James C. Spears, Jr. of Faucette Law Firm, Spartanburg, for respondent.

CURETON, Judge:

This is a retaliatory discharge action brought pursuant to S.C.Code Ann. Section 41-1-80 (Cum.Supp.1989). The case was tried before a judge and jury. Davis moved for a directed verdict on the grounds that (1) there was no evidence Horn had been actually discharged from his position, (2) there was insufficient evidence of a retaliatory motive, and (3) it was undisputed Horn did not receive a full medical release. The trial judge denied this motion. The judge ruled the jury only needed to decide whether Horn had been discharged in violation of the statute. The verdict form required the jury to find "for the plaintiff" or "for the defendant." After the jury found for Horn the trial judge awarded Horn $9787.68 in lost wages and ordered reinstatement. Davis moved for judgment notwithstanding the verdict which was denied. On appeal Davis does not challenge the computation of lost wages but asserts error in the failure to grant its motions for directed verdict and judgment notwithstanding the verdict. It also appeals the trial court's order of reinstatement. We affirm in part, reverse in part, and remand.

George Horn was employed by Davis Electrical Constructors Inc. as an electrician's helper. He was injured on the job on October 20, 1986. Horn was terminated by Davis approximately ten days later. His termination record indicated the reason for the termination was an injury on the job. Davis has a policy of terminating an employee if the employee remains away from work seven days from the time of the injury. Horn instituted a workers' compensation proceeding. He was temporarily disabled until August of 1987. When released by the physician he received a permanent disability rating and the doctor placed certain temporary restrictions on lifting and climbing. Horn testified the doctor told him to return to his [302 S.C. 487] job and "work into it." Horn inquired about returning to work for Davis. Davis Electrical did not rehire Horn because he did not receive an unrestricted medical release. It is Davis's policy that an employee must have a full medical release with no restrictions in order to return to work after an injury. A company spokesman testified he knew of no reason that Horn would not be rehired if he obtained the medical release.

This court held in Wallace v. Milliken & Company, 389 S.E.2d 448 (S.C.Ct.App.1990), that an action under Section 41-1-80 is equitable because the statute provides for the equitable remedies of lost wages and reinstatement. The record indicates the parties and the court treated this case as a law case with submission of the issues of fact to a jury. Obviously, the case was tried before our decision in Wallace. It seems clear the court did not consider the jury as advisory only. We believe the parties implicitly agreed to trial by consent under S.C.R.Civ.P. 39(c). Under that rule a court may, with the consent of both parties, order a trial by jury. The rule provides the verdict in such a case "has the same effect as if trial had been a matter of right." Under prior statutory authority, a presiding judge could frame

Page 726

issues of fact in an equity case for trial by a jury. S.C.Code Ann. Section 15-23-70 (1976), repealed by Act Number 100, 1985 S.C.Acts 277. When issues were submitted to a jury under that section the findings of the jury were conclusive if there was any evidence to support them. S.C.Code Ann. Section 15-33-70 (1976), repealed by Act Number 100, 1985 S.C.Acts 277; Johnstone v. Matthews, 183 S.C. 360, 191 S.E. 223 (1937); Thigpen v. Thigpen, 217 S.C. 322, 60 S.E.2d 621 (1950). Given the procedural posture of this case, we will review the factual findings of the jury to determine if there is any evidence to support them.

I.

The court's charge on the law is not a matter of record and no issue was raised about it. In considering the theories of the parties we are enlightened by a comment of the trial judge. He stated that if the jury determined Horn was discharged because he could not do the job then Horn would not be entitled to recover. Horn could only recover if the jury concluded he was discharged for filing his claim. Davis argues on appeal [302 S.C. 488] this court should adopt the approach utilized in federal court under Title VII of the Civil Rights Act of 1964. Federal cases interpreting Title VII require a plaintiff to show as part of his prima facie case of retaliatory firing that he was qualified to perform the job at the time of his discharge. See Williams v. Boorstin, 663 F.2d 109 (D.C.Cir.1980), cert. denied, 451 U.S. 985, 101 S.Ct. 2319, 68 L.Ed.2d 842 (1981).

This case was tried before our decision in Wallace v. Milliken & Company. In Wallace we determined that a plaintiff makes out a prima facie case where he shows (1) he has been discharged and (2) the employer's retaliation for the filing of a workers' compensation claim was an important factor in motivating the employee's discharge. Wallace, 389 S.E.2d 448 (S.C.Ct.App.1990); Lattie v. SHS Enterprises, Inc., d/b/a Midas Muffler, 389 S.E.2d 300 (S.C.Ct.App.1990).

Davis contends a full medical release was one of the...