May v. Tide Water Power Co

• Decision Date: 08 November 1939
• Docket Number: No. 380.,380.
• Citation: 216 N.C. 439,5 S.E.2d 308
• Parties: MAY. v. TIDE WATER POWER CO.
• Court: North Carolina Supreme Court

5 S.E.2d 308

216 N.C. 439

MAY.

v.TIDE WATER POWER CO.

No. 380.

Supreme Court of North Carolina.

Nov. 8, 1939.

Appeal from Superior Court, Lenoir County; Frizzelle, Judge.

Action by J. S. May against the Tide Water Power Company for wrongful discharge of the plaintiff as an employee of the defendant. From an order overruling demurrer to the complaint, the defendant appeals.

Reversed.

Civil action for recovery of damages resulting from wrongful discharge of plaintiff, heard upon demurrer.

The complaint alleges in part:

"4. That this plaintiff was employed by the defendant in May, 1931, and was in its employment until he was discharged as hereinafter mentioned on March 24, 1938. During practically all of his period of employment by the defendant, the plaintiff served as Branch Manager of the defendant at its Kinston, North Carolina, office and plant.

"5. That on March 24, 1938, the defendant illegally, ruthlessly, wantonly and wrongfully discharged the plaintiff and made said discharge unnecessarily in a public place and in a public manner on the public street of the City of Kinston, and at an hour of the day when the street was frequented by passers by, many of whom, as the plaintiff is advised and believes, and so alleges, heard the discharge of this plaintiff as it was being made. That in order to make the discharge in the manner hereinbefore specified the defendant actually called this plaintiff from his office and from the office building occupied by the defendant in the City of Kinston, to the public street, and there in the manner aforesaid effected the discharge of this plaintiff from the service of the defendant. That at the time and on this public street this plaintiff protested against the conduct of the defendant and demanded that he first be given an auditing of his accounts and that he be permitted to turn over the office and the property of the defendant in an appropriate and orderly way, all of which was refused.

"6. That no complaint had ever been made by the defendant to this plaintiff as to purpose to discharge him at all, nor had any complaint been made to the plaintiff by the defendant to the effect that his services were unsatisfactory. At the time of the discharge in the manner hereinbefore mentioned, this plaintiff requested that information concerning the reasons therefor be given him, all of which was refused by the defendant.

"7. That the discharge of the plaintiff in the manner as hereinbefore mentioned became quickly known through the passers by and was immediately and continuously and generally discussed by the people of the City of Kinston and in the vicinity thereof where this plaintiff has spent his entire life and was well and favorablyknown. That great speculation and gossip was indulged in by the people as to what conduct by the plaintiff caused such peremptory and public discharge of this plaintiff by the defendant.

"8. That the service of this plaintiff during all the time of his employment by the defendant had been diligent, efficient and faithful to the defendant.

"9. That by the conduct of the defendant as hereinbefore mentioned, this plaintiff has been greatly damaged in the sum of $25,000.00."

The plaintiff prays judgment in the sum of $15,000 actual damages, and for $10,000 punitive damages.

Defendant demurs to the complaint for that it does not state facts sufficient to constitute a cause of action in that: "The alleged cause of action is predicated upon allegations that the defendant, employer, discharged the plaintiff, employee, under circumstances whereby the fact of discharge became known publicly, the plaintiff in his complaint seeking to recover damages for this alleged tort; whereas, as a matter of law, an action in tort does not lie against an employer for discharging an employee under the circumstances set forth and alleged in the complaint."

The court below, being of opinion that a cause of action is stated, entered order overruling the demurrer, from which defendant appeals to the Supreme Court and assigns error.

Charles F. Rouse, of Kinston, for appellant.

Allen & Allen and John G. Dawson, all of Kinston, and L. E. Maxwell, of Pink Hill, for appellee.

WINBORNE, Justice.

Careful consideration of the allegations in the complaint lead to the conclusion that the demurrer should be sustained.

If we consider this an action in tort for wrongful discharge, which we think it is, the liability must grow out of the violation of some legal duty by the defendant, not arising out of contract, and "the complaint should state facts sufficient to show such legal duty and its violation resulting in injury to plaintiff". Mcintosh P. & P., 394.

"A wrongful discharge from employment becomes the basis of an action in tort when accompanied by a wrongful act which amounts to a...