May v. Tidewater Power Co.

5 S.E.2d 308, 216 N.C. 439, 1939 N.C. LEXIS 11

• Court: Supreme Court of North Carolina
• Decided: November 8, 1939
• Status: Published

Opinion

Winborne, J.

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 technical trespass with actual or constructive force. A malicious motive disconnected with the infringement of a legal right cannot be the subject of a civil action,” Adams, J., in Elmore v. R. R., 191 N. C., 182, 13 S. E., 633, citing Richardson v. R. R., 126 N. C., 100, 35 S. E., 235; S. v. Van Pelt, 136 N. C., 634, 49 S. E., 163; Bell v. Danzer, 187 N. C., 224, 121 S. E., 448. See, also, Biggers v. Matthews, 147 N. C., 299, 61 S. E., 55.

In the sense there used, trespass to the person “involves the idea of force or the direct character of an injury, remediable at common law by the action of trespass vi et armis.”

In this connection there is no allegation of assault, of force, of trespass to his person or property, or any other act which “disjointed from the mere termination of the employment constitutes an independent cause of action.” Elmore v. R. R., supra. Plaintiff does not contend that the action is for slander.

Applying these principles to the facts alleged, admitted for the purpose as we must do in testing a demurrer, Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761; Ins. Co. v. McCraw, 215 N. C., 105, 1 S. E. (2d), 369, and cases cited, the allegations appear to be insufficient to meet the requirements.

It is contended by counsel for plaintiff in brief filed as well as in oral argument that, while a mere reading of the complaint may be suggestive of the conclusion that the action is in tort, they do not concede that all contractual relations as between the parties are excluded from consideration under the allegations of the complaint. They argue that the allegation that plaintiff had been in constant employment of defendant from May, 1931, to March, 1938, nearly seven years, is adequate to admit of showing that as a reason for his continued employment, there were renewed annual agreements between the parties that the relation should continue for another year.

Giving to the allegations the most liberal construction and the benefit of every reasonable intendment and presumption, we are unable to follow through on this argument. To do so would require the interpolation of allegation.

They further argue that in the allegation that plaintiff was illegally and wrongfully discharged, the words “illegally discharged” and “wrongfully discharged” may be applied with equal force to the breach of contract of employment as to a tortious discharge from employment. Conceding this to be true, as used here, it is apparent that the words are in connection with and as incidental to allegations in tort. There are no allegations of “the making of the contract, showing the terms which fix the plaintiff’s right and defendant’s liability” which are essential in an action on express contract. McIntosh P. & P., 394.

When in contracts for personal service no time is fixed and no stipulated period of payment made, the contract is terminable at the will of either party, and no cause of action results therefrom. Edwards v. R. R, 121 N. C., 490, 28 S. E., 137; Richardson v. R. R., supra; King v. R. R., 140 N. C., 433, 53 S. E., 237; Soloman v. Sewerage Co., 142 N. C., 439, 55 S. E., 300; Currier v. Lumber Co., 150 N. C., 694, 64 S. E., 763; Elmore v. R. R., supra.

The judgment below is

Reversed.