Roemer v. Zurich Ins. Co.

• Citation: 323 N.E.2d 582,25 Ill.App.3d 606
• Decision Date: 20 January 1975
• Docket Number: No. 59930,59930
• Parties: Frederick ROEMER, Plaintiff-Appellant, v. ZURICH INSURANCE COMPANY et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 582

323 N.E.2d 582

25 Ill.App.3d 606

Frederick ROEMER, Plaintiff-Appellant, v. ZURICH INSURANCE COMPANY et al., Defendants-Appellees.

No. 59930.

Appellate Court of Illinois, First District, First Division.

Jan. 20, 1975.

Chester A. Lizak, Chicago, for plaintiff-appellant.

David P. List, William O. Fifield and Nathan P. Eimer of Sidley & Austin, Chicago, for defendants-appellees.

GOLDBERG, Justice:

Frederick Roemer (plaintiff) brought this action for damages against his employer, Zurich Insurance Company (Zurich), Allison Henry (Henry), a supervisor for the employer and a secretary and co-worker of plaintiff Patricia Thomas (Thomas). The record before us commences with plaintiff's third amended complaint at law (complaint) consisting of five counts. The three defendants filed a motion to strike Counts I, III and IV in their entirety; or, alternatively, to strike the pertinent portions of these counts. After a hearing, the trial court granted defendants' motion to strike these three counts with prejudice, finding that there was no just reason to delay enforcement of, or appeal from, the order. Plaintiff has appealed.

Count I of the complaint seeking damages from Zurich, alleges that in January of 1971, plaintiff was hired by Zurich to work in its personnel department. Plaintiff duly performed all of his duties until he was discharged on March 12, 1973. Plaintiff received a number of pay raises and was promoted to employment manager and 'during such period acquired certain rights in such corporation, including participation in the profit sharing plan and group insurance offered by such corporation.' Defendant Henry was the immediate supervisor of plaintiff and defendant Thomas was employed under plaintiff's direct supervision. Both of them had due notice and knowledge of the contract of employment between plaintiff and Zurich.

Count I further alleges that on March 12, 1973, plaintiff was advised by Henry that Thomas had accused plaintiff of making sexual advances toward her and that these accusations were untrue. On March 12, 1973, plaintiff was summarily discharged without just cause, a hearing and the right to confront his accuser.

Count III, seeking damages from defendant Thomas, incorporates the paragraph first above set forth pertaining to the allegations of Count I. Count III also alleges that plaintiff had been reputed, esteemed and accepted by and among his neighbors and professional associates, to whom he was known to be a person of good repute and chaste character. Plaintiff had never previously been suspected of being guilty of unchaste and unprofessional conduct. On March 9, 1973, defendant Thomas 'did falsely, maliciously and intentionally advise' defendant Henry that she was forced to quit Zurich because plaintiff was making 'sexual advances' toward her. It is further alleged that by this statement defendant Thomas imputed that plaintiff was of unchaste and immoral character and was unfit, unqualified and lacking in professional integrity to be employment manager at Zurich.

Count III proceeds to allege that by reason of these defamatory statements, plaintiff has suffered, and will continue to suffer, substantial damages such as loss of employment and salary, loss of future employment opportunities, great mental pain, distress of mind and humiliation, and his reputation for professional integrity and virtue has been brought into question. For many years plaintiff will be confronted with the facts of his discharge where he seeks other employment and will be forced to tell other and future employers to whom he might make application for work that he was once discharged as above set forth. All of this has caused, and in the future will cause, plaintiff to suffer great mental agony, distress of mind and humiliation.

Count IV, seeking damages from defendants Zurich and Henry, also incorporates the initial paragraph above set forth regarding Count I. It alleges that on March 12, 1973, plaintiff was advised by defendant Henry that defendant Thomas had accused him of making sexual advances toward her. On March 12, 1973, plaintiff was summarily discharged. Plaintiff registered with certain placement agencies in an attempt to secure new employment. It alleges further that on March 19, 1973, defendant Henry, both individually and in his supervisory capacity for Zurich, 'did wrongfully, willfully and maliciously respond to an inquiry' from a placement agency asking him to rate plaintiff's work performance by stating, 'That's self-explanatory. He is no longer here.'

In addition, Count IV alleges that on March 20, 1973, defendant Henry, in like capacity, 'wrongfully, willfully and maliciously responded to an inquiry' from another placement agency asking him to rate plaintiff's work performance by stating, 'I would not want him working for me.' Both of these replies falsely impute that plaintiff was an incompetent and unqualified employee. Both replies were made 'with express malice, with knowledge that such replies falsely imputed that plaintiff was an incompetent and unqualified employee, and with design and intent to injure Plaintiff and his good name, reputation and his ability to secure employment.' Plaintiff also alleges that by reason of the above he has suffered, and will continue to suffer, substantial damages such as alleged in Count III.

In this court, plaintiff contends that an employee at will, who participates in the profit sharing and group insurance plans of his employer, may not be discharged without cause; the complaint is sufficient at law as regards the accusation of sexual advances because such accusation was made with malice and resulted in special damages to the plaintiff and a false statement by an employer imputing incompetency to an employee is actionable if maliciously made and resulting in special damages. Defendants urge that plaintiff's employment with Zurich was terminable at will without cause by either party so that his discharge is nonactionable as a matter of law; the allegedly slanderous statements made by defendant Thomas against plaintiff are capable of innocent construction and therefore they must be so construed and declared nonactionable as a matter of law and the responses made by defendant Henry to inquiries from prospective employers of plaintiff were privileged.

The legal sufficiency of these counts of the complaint must be considered and determined with certain basic principles in mind. The properly pleaded allegations are admitted by the motion of defendants to dismiss. (Holiday Magic, Inc. v. Scott, 4 Ill.App.3d 962, 963, 282 N.E.2d 452, leave to appeal denied, 52 Ill.2d 594, and cases therein cited.) However, although well pleaded facts must be taken as true, conclusions are not admitted and need not be accepted. (Chicago Teachers Union v. Bd. of Ed. of Chicago, 14 Ill.App.3d 154, 156, 301 N.E.2d 833.) As this court has held, the motion to dismiss 'does not admit conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which the conclusions are based.' Delis v. Sepsis, 9 Ill.App.3d 217, 222, 292 N.E.2d 138, 139.

Analysis of Count I reveals that it alleges no specified time or duration for the employment of plaintiff by Zurich. No copy of any written contract between these parties is appended to the complaint or described therein. The complaint merely alleges that plaintiff 'was hired by defendant, ZURICH.' We must therefore assume that the legal relation between the parties was an employment at will. This arrangement between plaintiff and Zurich was subject to termination by either of them at will, for or without cause. (Buian v. J. L. Jacobs and Company (7th Cir. 1970), 428 F.2d 531, 533 citing Atwood v Curtiss Candy Company, 22 Ill.App.2d 369, 161 N.E.2d 355, leave to appeal denied 18 Ill.2d 627. See also 17 I.L.P., Employment, ch. 2, § 21, p. 386 and Urnest v. Forged Tooth Gear Co., 102 Ill.App.2d 178, 188, 243 N.E.2d 596.) Consequently, plaintiff had no cause of action against Zurich for mere termination of his employment at any time; either with or without cause.

The only additional allegations in Count I are conclusions that plaintiff 'acquired certain rights' in defendant Zurich 'including participation in the profit sharing plan and group insurance offered by such corporation.' These are pure conclusions of the pleader. We are not informed regarding the provisions of any profit sharing or group insurance plan and as to whether plaintiff had vested rights in any benefits which might have accrued under these plans. No copy of any plan is appended to the complaint. (Ill.Rev.Stat.1973, ch. 110, par. 36; Barnes v. Peoples Gas Light & Coke Co., 103 Ill.App.2d 425, 428, 243 N.E.2d 855.) Thus, as above shown, these conclusory allegations are insufficient to state any cause of action flowing from plaintiff's termination. It follows that Count I was properly dismissed.

Turning now to Count III, which seeks damages from the secretary, defendant Thomas, the charge is made that she 'did falsely, maliciously and intentionally' tell defendant Henry that she was forced to leave her employment because plaintiff was making 'sexual advances' toward her. There is a paucity of factual...