Young v. McKelvey

• Citation: 333 S.E.2d 566,286 S.C. 119
• Decision Date: 04 June 1985
• Docket Number: No. 22354,22354
• Court: United States State Supreme Court of South Carolina
• Parties: Marshall YOUNG, Respondent, v. Kenneth L. McKELVEY and A. Byrnes Bryant, Jr., as Co-Executors of the Estate of B.C. Inabinet, Jr., deceased, individually and d/b/a The Beach House Golf and Racquet Club, and B.C.I., Inc., Appellants. . Heard

Page 566

333 S.E.2d 566

286 S.C. 119

Marshall YOUNG, Respondent, v. Kenneth L. McKELVEY and A. Byrnes Bryant, Jr., as

Co-Executors of the Estate of B.C. Inabinet, Jr., deceased,

individually and d/b/a The Beach House Golf and Racquet

Club, and B.C.I., Inc., Appellants.

No. 22354.

Supreme Court of South Carolina.

Heard June 4, 1985.

Decided July 22, 1985.

T. English McCutchen, III, and John R. Holland, of Whaley, McCutchen, Blanton & Rhodes, Columbia, and Kenneth J. Hagreen, Myrtle Beach, for appellants.

David R. Gravely and Judith L. Johnson, of Bellamy, Ruthenberg, Copeland, Epps, Gravely & Bowers, Myrtle Beach, for respondent.

LITTLEJOHN, Chief Justice:

The plaintiff-respondent, Marshall Young, instituted this breach of contract action against his former employer B.C. Inabinet, Jr., d/b/a The Beach House Golf and Racquet Club and B.C.I., Inc., ¹ the defendants-appellants, for the failure to pay amounts allegedly due under the terms of an employment contract. After the taking of B.C. Inabinet, Jr.'s deposition, employee moved for summary judgment under our Circuit Court Rule 44 asserting no material issue of fact existed. The trial judge agreed and ordered summary judgment in favor of the employee. The employer contends that summary judgment was improperly granted because genuine issues of material fact existed such that the case should have been submitted to a jury. We agree.

The employee was hired as Vice-President of Sales for Beach House. The written brief employment contract was drafted in letter form and provided that employee was to receive a weekly draw of $500 plus 2% of real estate sales until that sum equalled a 2 1/2% commission on a consistent basis. Thereafter, he was to receive only the 2 1/2% commission. The method of compensation and insurance benefits were specified in the contract but it was silent as to other requirements of his employment.

On July 2, 1982, a written addendum to the employment contract was executed. It provided that the employment contract could be "... cancelled upon a written, 60 day notification to the other party." The addendum further provided in the event of cancellation "... by either party, all sales commissions, draws and/or overrides that are due and payable to [employee] will be paid on the next regularly scheduled pay period following the closing and booking of said sale."

Employee began work on July 2, 1982, and was fired on July 21, 1982. He claims his employer breached the terms of the contract by failing to give him the 60-day notice as provided in the addendum. The employer admitted the existence of the contract, but alleged employee had breached the agreement by openly engaging in an unbecoming romantic relationship with one of his subordinate female employees. The employer alleged that employee continued this course of conduct despite repeated warnings that it was against company policy and would be cause for termination. Employer submits that the termination was for cause.

It is the duty of the court, on a motion for summary judgment, to determine whether there are genuine issues of fact to be tried, and if there are, the judge must leave those issues for determination by the jury. Eagle Construction Co. v. Richland Construction Co., Inc., 264 S.C. 71, 212 S.E.2d 580 (1975). All inferences from the evidence presented must be viewed in the light most favorable to the non-moving party. For the purpose of this appeal, we must accept as true the assertions that employee wilfully disobeyed his employer's express instruction to not date the female employees. The trial judge did not give proper consideration to the material issue of whether the employee was discharged for cause based upon his conduct.

The nature of an employment contract is such that the employee promises, either expressly or by implication that he or she will perform the work in a diligent and reasonably skillful manner. An employee has a duty to abide by his employer's instructions and policies and owes a duty of loyalty to his employer to carry out those instructions and policies. See, Berry v. Goodyear, 270 S.C. 489, 242 S.E.2d 551 (1978), wherein we said:

It is implicit in any contract for employment that the employee shall remain faithful to the employer's interest throughout the term of employment. An employee has a duty of fidelity to his employer. Lowndes Products, Inc. v. Brower, et al., 259 S.C. 322, 191 S.E. (2d) 761 (1972). Where an employee acts adversely to the interest of the employer, he is disloyal and his discharge is justified. In Re Burris, 263 N.C. 793, 140 S.E. (2d) 408 (1965); Perfection Mattress & Spring Company v. DePree, 216 Ala. 303, 113 So. 74; 56 C.J.S. Master and Servant § 42, p. 430.

In his deposition, the employer described the relationship between the employee and another female employee as a "... flagrant torrid romance with this nice lady." The details enumerated make the "discharged-for-cause" issue one for the jury.

There is certainly nothing in the agreements which attempted to protect the employee against discharge for cause. In the order of the trial judge, he asserted:

It is well established in South Carolina that parole evidence is inadmissable to vary or contradict the terms of an agreement reduced to writing. Gantt v. Van derHoek, 251 S.C. 307, 162 S.E.2d 267 (1968). The rationale for this rule is that a written agreement between two persons merges all prior talks and...