Smith v. Holt, Rinehart & Winston, Inc.

242 S.E.2d 548, 270 S.C. 446, 1978 S.C. LEXIS 523

• Court: Supreme Court of South Carolina
• Decided: March 2, 1978
• Docket: 20626
• Status: Published

Opinions

Littlejohn, Justice.

This appeal is from the order of the lower court sustaining the defendants’ three separate demurrers to the complaint on the ground that the complaint does not state facts sufficient to constitute a cause of action. Permission to replead was not granted.

The plaintiff, Patricia Smith (Smith), commenced this action against the defendants Holt, Rinehart and Winston, Inc. (HRW), Sales Consultants of Columbia, Inc. (Employment Agency), and Ken Crabb (Crabb), alleging a cause of action for tortious interference with prospective advantage. The lower court recognized the viability of a cause of actiton for tortious interference with prospective advantage, but sustained each demurrer for failing to state a cause of action, and dismissed the complaint. Smith appeals.

As additional sustaining grounds the defendants-respondents submit that no cause of action is recognized in this state for interference with prospective advantage.

On appeal from an order sustaining a demurrer, this Court’s review is limited to the allegations stated in the complaint, which are assumed to be true. Herndon v. Wright, 257 S. C. 98, 184 S. E. (2d) 444 (1971). A demurrer to a complaint cannot be sustained if facts sufficient to constitute any cause of action are stated in or can fairly be gathered from the complaint. Baldwin v. Sanders, 266 S. C. 394, 223 S. E. (2d) 602 (1976).

The complaint alleges that Smith entered into a contract with the Employment Agency, whereby the Employment Agency undertook to find employment for Smith in sales; that Smith later answered an advertisement run by the Employment Agency on behalf of HRW for a position in educational sales; that Smith applied for the job with HRW and that Crabb, an employee of the Employment Agency, was assigned to handle negotiations between Smith and HRW; that Smith had several interviews with HRW, after which she and HRW had virtually agreed to employment at a salary of $12,000.00 per year; that Smith later learned that Crabb had been interviewing for the job with HRW, and that he was given the position for which she had applied. It is further alleged that Smith was never told that an employee of the Employment Agency was being considered for the position with HRW, and that Crabb’s actions were approved by the Employment Agency, which accepted a fee from HRW knowing that they were breaching a contract with Smith. Finally, the compliant alleges that Crabb and HRW conducted negotiations in secret at the same time that Smith was interviewing for the position, and that Crabb’s actions constituted a course of double-dealing and willful, deceitful and malicious conduct which deprived Smith of the prospective advantage she had in the likelihood of lucrative and permanent employment with HRW.

We think that disposition of the issue raised by the additional sustaining ground makes all other issues moot. That issue is: Does a cause of action for interference with prospective advantage lie under the common law of this state ? Smith concedes that there are no South Carolina cases which recognize such a cause of action. She urges that we recognize the legal theory based on the fact that other jurisdictions have done so. We acknowledge that there is authority for such claims. See Prosser, The Law of Torts § 130 4th ed. (1971); Harper and James, The Law of Torts § 6.11 (1956); 45 Am. Jur. (2d) Interference §§ 50-51; Restatement Second, Torts, Tentative Draft § 766A (1969).

Smith argues that since we recognize a cause of action for tortious interference with contract, Keels v. Powell, 207 S. C. 97, 34 S. E. (2d) 482 (1945), there is no reason why we should not also recognize the viability of a cause of action for tortious interference with prospective contractual relations.

The cause of action for tortious, or malicious, interference with contractual relationships was first recognized in South Carolina in the case of Chitwood v. McMillan, 189 S. C. 262, 1 S. E. (2d) 162 (1939). It was there stated that the doctrine, which had its genesis in the early English case of Lumley v. Gye, 2 El. & Bl. 216, 118 Eng. Rep. 749 (1853), was based on the theory that

“the parties to a contract have a property right therein, which a third person has no more right maliciously to deprive them of, or injure them in, than he would have to injure their property.” Chitwood, supra, at 1 S. E. (2d) 163.

The principle that a right of action for tortious interference lies where there is a valid contract, has been followed in Keels v. Powell, supra, at 207 S. C. 101, 34 S. E. (2d) 484, and Parker v. Brown, 195 S. C. 35, 10 S. E. (2d) 625, 631 (1940), but has never been expanded in South Carolina to encompass prospective contractual relations. More recently, the cause of action for intentional interference with contractual relations has been recognized in Crowe v. Domestic Loans, Inc., 242 S. C. 310, 313, 130 S. E. (2d) 845 (1963); Meadors v. South Carolina Medical Ass’n, 266 S. C. 391, 223 S. E. (2d) 600 (1976), and Webster v. Holly Hill Lumber Co., 268 S. C. 416, 234 S. E. (2d) 232 (1977).

Despite authority, we decline to recognize such a claim by judicial fiat. We think that the limitation on a cause of action for intentional interference, to instances where there is a valid contract in existence, is justified by the fact that the parties have a property right in an existing contract. No such property right can be said to exist in the mere “likelihood of employment.” The law affords no protection to rights which are not in existence. If an action for tortious interference with prospective advantage or prospective contractual relations is to become the law in this State, it should be by legislative enactment.

We conclude that the lower court was correct in sustaining the demurrers and in dismissing the complaint. We reach the conclusion by way of the additional sustaining grounds under Rule 4, Section 8, of this Court, which permits affir-mance “upon any ground appearing in the record.”

Affirmed.

Ness and Rhodes, JJ., concur. Lewis, C. J., and Gregory, J., dissent.