Gaulden v. Emerson Electric Co.

680 S.W.2d 92, 284 Ark. 149, 117 L.R.R.M. (BNA) 3375, 1984 Ark. LEXIS 1922

• Court: Supreme Court of Arkansas
• Decided: December 3, 1984
• Docket: 84-187
• Status: Published

Opinions

Robert H. Dudley, Justice.

The plaintiff, William Gaulden, contends that the trial court erred by dismissing his amended complaint for failure to state facts upon which relief could be granted. Jurisdiction is in this court to construe the Arkansas Rules of Civil Procedure. Rule 29(1 )(c). We affirm the trial court.

In the amended complaint, plaintiff alleged that he was employed by defendant, Emerson Electric Company, as a truck driver and in September, 1982, “was laid off for lack of work”; that on December 15, 1982, defendant’s personnel manager requested that he return to work by 7:00 a.m. the next morning; and that he told the personnel manager that he had an illness which might prevent his return to work. Additionally, the amended complaint recited that on December 15th, he was taking the prescription drug Compazine, which caused him to experience dizziness. Additional averments were that he did not report for work at the designated time and place but, two hours later, telephoned defendant’s personnel manager to tell him that he would be a few hours late; that he was then told he was discharged for failure to “make the run on time and failure to notify the defendant of his illness.”

On appeal, plaintiff first contends that portion of the three count complaint, set out above, states a cause of action both in contract and in tort for wrongful discharge. See Comment: Wrongful Discharge of Employees Terminable At Will - A New Theory of Liability in Arkansas, 34 Ark.L.Rev. 729 (1980).

Almost a century ago we began to follow the common law rule that when a contract of employment does not bind the employee to serve for a specified time, the contract may be terminated at will by either party, even though the contract provides that the employee can be discharged only for cause. See St. Louis, I.M. & S. Ry. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897); Petty v. Missouri & Arkansas Ry. Co., 205 Ark. 990; 167 S.W.2d 895, cert. den. 320 U.S. 738 (1943). The harshness of this common law rule is being softened in many jurisdictions. See Annotation, 12 ALR4th 544 (1981). Twice, we have recognized the new trend without finding it necessary to explore this issue. Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982); Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984).

That part of the complaint set out above does not allege any facts which bring the plaintiff within any of the proposed exceptions to the employment at will doctrine. Rule 12(b)(6), which tests the sufficiency of the pleadings, provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted” while Rule 8, which deals with the content of the pleadings, provides:

A pleading which sets forth a claim for relief, whether a complaint, counterclaim, cross-claim, or third party claim, shall contain... (2) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief . . . (emphasis supplied).

The sole allegation is that plaintiff told defendant that an illness might prevent him from making the trip the next day. The complaint does not aver that defendant was informed that plaintiff was taking prescription medication or was suffering from dizziness. Moreover, the complaint reflects that plaintiff failed to notify appellee that he would not be at work the next day. Since no facts were alleged which would have brought the plaintiff within any of the proposed exceptions to the employment at will doctrine, there is no need for us to further explore the exception issue, and we affirm for failure to state facts upon which relief can be granted. See Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981).

Plaintiff’s second point of appeal is that he was not a mere at will employee but had completed a probationary period and could be fired only for good cause. In this portion of the amended complaint plaintiff alleged that he contracted with defendant for probationary employment to be followed by employment which could be terminated only for good cause. He additionally alleged that he had completed his probationary period.

We have clearly stated that we will reexamine our doctrine when we are presented with a case in which the contract of employment provides for discharge only for cause and the employee is discharged arbitrarily or in bad faith. Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984). In fact, in Jackson we reversed the granting of a summary judgment in order that the facts of the case could be developed on this precise issue. However, in the case at bar, the plaintiff has not stated a cause of action, for even if we should decide to change our law to prohibit an arbitrary or bad faith discharge when the contract requires cause, this complaint shows that the defendant had good cause to discharge plaintiff. The complaint recites that defendant informed plaintiff that he was being discharged for “failure to make the run on time and because of his failure to notify defendant of his illness. . .” and the complaint further recites that plaintiff, in fact, did not report for work at the designated time and place.

Affirmed.

Hubbell, C.J., and Hickman, J., concur. Purtle, J., and Hollingsworth, J., dissent.