Sterling Drug, Inc. v. Oxford, 87-172
| Decision Date | 04 April 1988 |
| Docket Number | No. 87-172,87-172 |
| Citation | 747 S.W.2d 579,294 Ark. 239 |
| Parties | , 3 IER Cases 1067 STERLING DRUG, INC. Appellant, v. Charles G. OXFORD, Appellee. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Garland County; Walter G. Wright, Judge.
M. Stephen Bingham, Little Rock, for appellant.
Bryan J. Reis, Ronald Naromore, Q. Byrum Hurst, Jr., Hot Springs, for appellee.
[294 Ark. 254-A] PER CURIAM.
Petition for rehearing is denied.
DUDLEY, J., would grant rehearing.
I agree with the petitioner and amicus curiae that we should reconsider our opinion in this case 294 Ark. 239, 743 S.W.2d 380 and grant rehearing. Several independent attorneys, the Arkansas Trial Lawyers Association, and the [294 Ark. 254-B] AFL/CIO have joined in this impressive brief filed in support of the petition for rehearing. Their arguments are very persuasive.
The outstanding characteristic of the opinion in this case is that it clearly requires employees to suffer considerably more outrageous conduct by employers than is required of non-employees. This is a distinction not previously made by any court so far as I can determine. It is a result argued by no one and sought by no one.
I agree with petitioner that this court erroneously substituted its own view of the facts for that of the jury. The evidence presented to the jury concerning the employer's conduct toward this petitioner showed that the employer:
1. communicated the false message to other employees that the appellant blew the whistle on their overcharges to the government causing the company to pay over $1,000,000 in penalties or fines;
2. demoted him from highest paid sales position to that of a beginning salesman and transferred him to an especially created sales area in Texas;
3. wrote a letter to him setting up his termination (This typed letter had been used to get rid of others);
4. repeatedly and falsely accused him of misconduct when they knew he was under severe stress;
5. refused to issue stock he had earned;
6. sent him on many false sales leads;
7. made unauthorized deductions from his salary or commission;
8. threatened to sue him;
9. placed him under surveillance by other employers;
10. continued this type of conduct for eighteen months; and
11. admitted its conduct was intended as "harassment."
That's only eleven of the overt acts directed at the appellant. [294 Ark. 254-C] what course of action short of physical violence could be more outrageous? Obviously the appellee desired to inflict this humiliation and embarrassment upon the petitioner in order to get even with him because they thought he was a "whistle blower."
The tort of outrage was described by this court in Growth Properties v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984), where we stated:
[T]he essence of the tort of outrage is the injury to the plaintiff's emotional well-being because of outrageous treatment by the defendant. If the conduct is sufficiently flagrant to give rise to tort, then the injury the law seeks to redress is the anguish itself and it need not rest, parasitically, on more demonstrative loss or injury.... [T]he argument confuses the intent to cause suffering with the intent to...
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...have a cause of action for the tort of "outrage." Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380, reh'g denied, 294 Ark. 239, 747 S.W.2d 579 (1988).6 The application of tort concepts in discharge and other employment contexts is not revolutionary. Tort theories have been applie......
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...of the employer's illegal acts. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 reh'g denied, 294 Ark. 239, 747 S.W.2d 579 (1988) (per curiam with dissent). This Court essentially predicted the result in Oxford when, in applying Arkansas law, we ruled that an at will employee co......
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...label 'against public policy.' " Id. at 1204-05. In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380, reh'g denied, 294 Ark. 239, 747 S.W.2d 579 (1988), we verified the Eighth Circuit's assumption about Arkansas law. In that case, we recognized an action for wrongful discharge wh......
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...judgment. See L. Larson, Unjust Dismissal §9A.02[4] (1993); Sterling Drug, Inc. v. Oxford, 743 S.W.2d 380 (Ark. 1988), reh'g denied, 747 S.W.2d 579 (1988) The difficulty in applying these employment contract rules lies in the fact that the Commission failed to reach a conclusion of law rega......