M. B. M. Co., Inc. v. Counce

Decision Date24 March 1980
Docket NumberNo. 79-313,79-313
Citation268 Ark. 269,596 S.W.2d 681
Parties, 118 L.R.R.M. (BNA) 2925 M. B. M. COMPANY, INC., Petitioner, v. Shirley Ann COUNCE, Respondent.
CourtArkansas Supreme Court

Parker & Henry, Jonesboro, for petitioner.

Barrett, Wheatley, Smith & Deacon, Jonesboro, for respondent.

FOGLEMAN, Chief Justice.

Shirley Ann Counce appealed from a summary judgment against her in her suit against M.B.M. Company, her former employer, to recover damages for wrongful discharge and for intentional infliction of emotional distress. Because we find a material issue of fact as to intentional infliction of emotional distress, we affirm the action of the Court of Appeals reversing the judgment and find no error in that court's holding.

In her complaint, respondent Counce alleged that, on February 2, 1977, she was "laid off" from her employment by petitioner at Coleman's Bar B-Q, its place of business in West Memphis, supposedly because her services were no longer needed but that she was subsequently told by an employee of petitioner that she must submit to a polygraph examination in connection with a money shortage on the last day she worked. She further alleged that she passed the test and demanded her wages for her last 17 hours of work, but when she received her paycheck it amounted to only $0.81 after an unexplained deduction of $36, which was later explained as being her share of the money which was missing on February 2. She asserted that these actions by petitioner were an intentional course of conduct designed to cause severe emotional distress, and that her termination was in retaliation for alleged stealing and a breach of the employment relationship and in violation of public policy.

M.B.M. moved for summary judgment on the basis of the discovery deposition of Ms. Counce and those of Jerrell Coleman Moss, area supervisor for M.B.M., who was in charge of the West Memphis store, and Porter Moss, president of M.B.M. Since we are considering a summary judgment, we will view this evidence in the light most favorable to Shirley Ann Counce, against whom it was rendered.

Ms. Counce was employed by M.B.M. at the West Memphis store on January 17, 1977. The store manager was Jan Hylander. Between the closing of the business on February 1, 1977 and its reopening the following day, $99.00 in money and checks were missing. Ms. Counce had been assigned to the cash register on that evening. She had no knowledge the money was missing until the store manager called her on the morning of February 2. When Ms. Hylander asked her if she had put all the money and checks together as she was supposed to do, Ms. Counce answered in the affirmative. Later Ms. Hylander called Ms. Counce and told her that she was laid off because Ms. Hylander had too much counter help. Shortly thereafter, Ms. Counce called and asked Ms. Hylander about her pay, but was told that she would have to take a polygraph test before the company would release her check. She went to Memphis and submitted to the test, which was arranged by Coleman Moss. The polygraph operator told her that she had passed and that M.B.M. would have to release her paycheck. The next day she picked up her check for the previous week's work. A week later she picked up her check for the last 17 hours she had worked. When she noticed that it was for only $0.81, she went back to Coleman's Bar B-Q and asked Jan Hylander why it was for that amount but was told that she would have to talk to Coleman Moss. Ms. Counce then called him on the telephone, asked why her money was withheld and told him that she had passed the test and needed her money. Coleman Moss responded, "I need mine, too."

Ms. Counce applied for unemployment benefits and gave the same reason for her discharge that she had been given by Jan Hylander. She was denied benefits because the employer had stated that she was laid off because of numerous customer complaints, a bad attitude and violation of company rules and policies. At the time Ms. Counce was discharged, M.B.M. was advertising for counter held in the West Memphis newspaper.

Coleman Moss stated that the reason Ms. Counce was dismissed was because there were two customer complaints about her service, but he did not know the name of either customer. Ms. Counce never had any problems or arguments with customers. The deduction from her pay was one-third of the missing money and the president of the company made the decision to withhold it. After an investigation by the Labor Department, this amount was paid to Ms. Counce. Coleman's Bar B-Q did not have excess counter help when she was discharged. No one ever said that Ms. Counce had stolen the missing money.

The written employment agreement between Ms. Counce and the company provided that she could be discharged at any time, without notice. In that contract, she consented, if she were employed, to submit to a polygraph test at any time during her employment and she understood that employees of Coleman's might be required to take such tests.

Ms. Counce first argues that there was a breach of the employment relationship in violation of public policy. This is but another way of saying that M.B.M. breached the contract of employment. She relies to some extent upon cases holding that discharge of an employee for filing a worker's compensation claim, for refusing to "go out" with her foreman, for going on jury duty, or for refusal to commit perjury, is a breach of contract. She contends that, upon the authority of such cases, she has stated a cause of action in contract. We might well agree with Ms. Counce if there was any indication that she was discharged for exercising a statutory right, or for performing a duty required of her by law, or that the reason for the discharge was in violation of some other well established public policy. That simply is not the case here. Since it is not, our holdings in such cases as Miller v. Missouri Pac. Transportation Co., 225 Ark. 475, 283 S.W.2d 158, lead us to hold that Ms. Counce has failed to establish a cause of action for breach of contract. In that case, the court relied upon the rule that, where no definite term of employment is specified in the contract of employment, and in the absence of other circumstances controlling the duration of the employment, the contract is terminable at the will of either party. That rule has greater impact when, as here, the contract specifically authorizes the employer to terminate the contract at will. In the absence of violation of some clearly established public policy, we join the Supreme Court of Utah in declining an invitation to remake the contract between the parties or to somehow devise a basis for relief whenever one party to a contract can show injury flowing from the exercise of a contract right by the other. Mann v. American Western Life Ins. Co., Utah, 586 P.2d 461 (1978).

This is not a case in which there was injury resulting from a physical impact, so appellant's right to recover damages for emotional distress depends upon the existence of a cause of action to recover these damages when distress is not merely "parasitic" as an element of damages for physical injury. The idea that a recovery should be permitted in some cases of this sort is not novel. In 2 Harper & James, The Law of Torts 1033, § 18.4 (1956), the authors said:

The more recent trend, in the British Empire as well as America, has been away from this mechanical requirement of impact. Where defendant's conduct is intentional, or willful and wanton, or constitutes a technical trespass or other legal wrong (which is complete without a showing of damage), recovery has often been allowed for emotional disturbance and its consequences. This has been so for a long time, but there has been an extension of liability along this line in recent years. * * *

In a footnote, the authors state that the oldest example was a case decided in 1348.

The concept of allowing recovery of damages for mental distress and injured feelings is not completely new in Arkansas. We upheld a recovery for mental suffering which was unaccompanied by any physical injury in Wilson v. Wilkins, 181 Ark. 137, 25 S.W.2d 428. Although we recognized that in actions for negligence there can be no recovery for mental suffering where there has been no physical injury, we said:

The rule is well settled in this state, but it has no application to willful and wanton wrongs and those committed with the intention of causing mental distress and injured feelings. Mental suffering forms the proper element of damages in actions for willful and wanton wrongs and those committed with the intention of causing mental distress.

Our holding in Wilson is not controlling authority for a holding that Ms. Counce has a cause of action against M.B.M., because the actionable wrong recognized in that case was wilful intimidation of the plaintiff's rights of personal security and of private property. The cause of action was based upon threats of the defendants that, if the plaintiff did not leave the community in which he lived, they would put a rope around his neck. Later in Geyer v. Western Union Telegraph Co., 192 Ark. 578, 93 S.W.2d 660, we again recognized the rule that, under the common law, there can be no recovery for fright or mental anguish caused by mere negligence, but that a recovery may be had where fright or mental anguish is caused by wilful conduct. In that case damages for mental anguish and fright were not sought, but we upheld a recovery for physical pain and injury attributable to the inability of the plaintiff to attend her brother's funeral because she was misled by an incorrect transmission of a death message.

Our statement in Wilson either overlooked or disregarded our previous holding in St. Louis, I. M. & S. Ry. Co. v. Taylor, 84 Ark. 42, 104 S.W. 551, 13 L.R.A. (n.s.) 159, the very case distinguished in the opinion. We actually held in Taylor that there could be no recovery for...

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