*1 OF APPEALS COURT Manufacturing Thomas Co. Coman v. Plaintiff-Appellant CO., COMAN, R. THOMAS MANUFACTURING MARK Defendant-Appellee INC.,
No. 8822SC218 1988) (Filed September discharge employee’s employee wrongful “at and Servant 10.2— Master — will” — employee of to state claim refusal to violate federal —failure employee not for not state a An whose contract a definite term does discharge against wrongful when he of action for tort cause to violate federal the sole reason for his is his refusal claims that regulations, Department Transportation since such contrary remedy, might a cause of action to North and creation of such doctrine. Carolina’s Judge dissenting. Wells (T. Coman, WJ, Mark R. from Ross by plaintiff, APPEAL Court, January 1988 in Superior entered 25 Judgment
Judge. September in the County. Appeals Heard Davidson from the defend- damages seeks In this civil terminating his em- wrongfully Manufacturing Thomas ant complaint pursuant moved to dismiss the Defendant ployment. 12(b)(6) for failure to Rules of Procedure Rule of the N.C. Civil hearing After a granted. which relief could be upon state a claim complaint dismissing was entered on the motion an order defendant, Plaintiffs appeals. from which the plaintiff of fact: following allegations contains the complaint distance long time as began working part In 1978 plaintiff Co., Inc. Manufacturing for defendant Thomas driver truck respon- It was employee. became a full-time 1984 he by the owned in vehicles long trips distance sibility to and fin- raw materials transporting purpose for the North outside points to various goods manufactured ished Department regulations promulgated Federal Carolina. carriers, de- including motor private all require Transportation safety records con- keep Thomas fendant traveled, service of each length mileage the route cerning car- regulated of a that no driver regulations provided driver. which is a ten-hour shift than longer a vehicle rier drive Each hours. eight not less than by a rest period followed to be Manufacturing Co. v. Thomas *2 to maintain accurate and the by regulations is required driver any of carrier. regulated travel on behalf of all logs complete long to several he was required Plaintiff that alleged In order to of the defendant. each week on behalf trips distance to trips plaintiff required of the number complete assigned by regulations the of the fed- in of the time allowed drive excess Further, alleged that plaintiff of Department Transportation. eral make false of the num- reports he was required that his driving in order to evidence provide ber of hours driven Department Transportation in with the of compliance hours were informed Manufacturing When Thomas regulations. to drive in excess of the number of hours required
he would be refused to work regulations, plaintiff except in the prescribed Department Transportation regulations. with the compliance or, least, plaintiffs employment Defendant then terminated (50%) by fifty if pay percent plain- threatened to reduce plaintiffs tiff to work in violation of the federal Plain- regulations. refused , tiff reason for his dismissal was his refusal sole except compliance Department Transportation to drive regulations. L. Eubanks and David F. Tamer
Larry plaintiff appellant. Petree, Robinson, Loftis, Stockton & W. R. Jr. and Penni Bradshaw, P. appellee. for defendant
ARNOLD, Judge.
Plaintiff contends that the trial court erred in dismissing complaint for failure to state a claim on which relief can be granted. As the defendant made the motion pursuant G.S. 12(b)(6) 1A-1, Rule for failure to state a claim on which relief can granted, allegations complaint of the set forth above must be taken as true for of this purposes appeal. Smith v. Ford Motor 71, 80, 282, 288, 221 S.E. 79 A.L.R. 3d (1976). Facts as presented complaint raise this question Does an appeal: employee whose contract is not for a definite term state a tort cause of action for wrongful discharge against his employer when he claims that the sole reason for his dis- is his refusal to charge violate federal Department Transporta- regulations? tion For the reasons set out below we find that there no such cause of action. We affirm the ruling the trial court. OF APPEALS Thomas
Coman v. note at the that the question We outset federal include statutory promote are of a scheme safe roads and part protections.” “whistleblower See 49 U.S.C.A. Thus, remedy we to a state tort for the violation were create in addi- it would be Department Transportation regulations remedy. existing tion to an
I. “At Will” Doctrine North Carolina than being no claim other Plaintiff makes by the N. C. explained The “at will” doctrine has been employee. way: of employment this a contract Supreme “[w]here *3 term, the of either it is terminable at will does not fix a definite cause, in which or in those instances party, except with without v. is a statute.” Smith Ford Motor protected the employee (citations (1976) 80, 282, omitted); 71, ac- 221 S.E. 2d 289 N.C. (1979). Pell, cord, “at Presnell v. The departure English will” is a from the doctrine North Carolina Leonard, year. A Law which a for one hiring Common presumed Termination, Rev. New Law 66 N.C.L. Employment Common of (1988); Parker, The Uses the Past: The Surprising of Carolina, 22 in North Employment Terminable-at-Will History of (1987). L. Rev. In 1877 the English Wake Forest Common firmly by an Rule an- supplanted was American presumption Law Gray of Wood: us the in the 1877 treatise Horace nounced “[w]ith inflexible, hiring is general prima that a indefinite rule is facie . and hiring at will . . is an indefinite is determinable hiring [It] Wood, H. A Treatise on the Law at will of either party.” the a nine- The rule reflects and Servant Master freedom century strongly complete view which supported teenth freely ac- to hire and fire employers It allows freedom contract. Leonard, 66 and other economic needs. cording production to 631, 641. Rev. N.C.L. employee he is an plaintiff
In his brief
admits that
is
free to dis-
not
that a North Carolina
but asserts
v.
Haskins
faith and cites
“at will”
bad
charge case,
(1874),
recent
and the more
Coman v. Thomas party’s concerned a third an em- Haskins interference the defendant ployment plaintiff employer contract. sued away from two his defense luring sharecroppers employ. the claimed that the contract between the plaintiff the was unlawful. did not find employee sharecroppers The Court an unlawful contract and found the defendant for unlawful liable interference a contract.
Coman, to rely asks us on present dic- tum Haskins to find a bad faith to the “at will” exception doc- Subsequent finding Royster trine. to its the defendant liable the Haskins stated: Court
It necessary is not what effect decide would be the of such in an action stipulation on contract between the parties to it. as there misconception But seems to be some of the law a case ... such a few observations will more conveniently actually lead us the question presented.
Haskins at With that introduction the then reviews some case law and concludes that the plain- contract between the Royster tiff and his sharecroppers was lawful. In conclusion the Haskins Court stated: notice, important
It however that none of these goes length authorities of holding, if after the con- work, duly tractors had all or performed part *4 cause, fide, had mala or without lawful discharged them, they could not on recover the contract. Haskins at 610. We do not with agree plaintiff that the above- and, quoted passage is central to the holding Haskins there- fore, we rely are unable to iton to find an exception the well- established employment “at will” doctrine in North Carolina. Co., 71, Smith 282, v. Ford Motor 289 N.C. 221 S.E. 2d 79 A.L.R. 3d 651 is a more recent of the N. example Su- C. preme doctrine, application Court’s the and is in- an comparison structive to Haskins as it also concerns interference of a Smith, third party an employment contract. plain- tiff Cloverdale, had been president and stockholder of a Ford automobile dealership. Plaintiff became involved a dealer’s alliance of, and, which Ford Motor Company disapproved as a re- sult, successfully Ford influenced Cloverdale terminate 331 Manufacturing Co. v. Thomas to terminate Cloverdale’s by threatening 293. The found that 221 S.E. 2d at Court Id. at franchise. interference of his con- wrongful of action for Smith had a cause Co., he was Motor but held that because Ford rights against tract absolutely against he had no recourse will” employee an “at states, committed The “Cloverdale Court employer, Cloverdale. if, there was plaintiff alleges, even as the no of its contract breach 80-81, 221 S.E. Id. at 2d for termination.” ‘just not cause’ such itself to be had allowed though 288. This was so even Cloverdale Ford, though even and wrongful behavior influenced Smith with- wrong accomplished have been no there could from the employer screened of Cloverdale. help out inter- malicious alleged Ford’s liability acquiescence its despite 221 S.E. 2d at contract. Id. at in the employment ference to discharge privilege that Cloverdale’s we Though from a dismissal distinguished can be just for “no cause” Smith or, to violate federal on refusal employee’s based cause,” is, our research reveals for “bad a dismissal virtually privi- unqualified loyally supported North Carolina v. Nantz firing employees. hiring lege regarding (1976) Comm’n, S.E. 2d 340 290 226 N.C. Sec. Employment (labor lack discharge upon based analyst alleged wrongful market Lance, termination); 279 N.C. Still her of evidence 254, (1971) (schoolteacher dis- alleged wrongful 182 S.E. 2d cause); arbitrary and without discharge being on based charge Co., 139 S.E. 2d Lumber v. Kernersville Tuttle (lumber (1964) discharge alleged wrongful manager company as long for so job promise permanent employer’s breach Huffman, 247 N.C. satisfactory); Willard v. work was manager’s (1958) (court stated recognized employee S.E. 2d 373 for reason motivating if discharge wrongful cause activities); v. Bur- Scott unionizing was retaliation dismissal (weaver (1956) S.E. Corp., Mills lington decision manufacturer’s following wrongful other coerce him and thus firing of weaver example weaver); than that of fired were poorer records whose weavers (1943) Jewelry Kay Malever v. *5 employ- after discharge wrongful alleged salesman (jewelry store perma- promises job former to leave salesman er induced R.R., 191 N.C. Line Coast v. Atlantic Elmore employment); nent 332 v. Thomas (1926) (railroad
182,
633,
S.E.
II. “At Will” Exceptions to the Doctrine in to
Plaintiff his brief asks us following consider in Sides v. Duke in of his language Hospital argument for that this Court cause of action wrongful discharge in his case:
Thus,
right
while
be a
to
there
terminate a contract at
reason,
will for no
right
there can be no
to terminate such a
contract
an unlawful reason or purpose that contravenes
policy. A
public
interpretation
different
encourage
would
and
lawlessness,
sanction
which
very
law
its
hold, therefore,
nature is de-
to
We
signed
encourage
prevent.
that no
State,
notwithstanding
that an
will,
right
at
to
employee and deprive
him of his livelihood without
liability
civil
he
because
refuses
testify untruthfully
in a court
incompletely
as
plaintiff alleges
here.
happened
331, 342,
818,
Duke
Sides v.
826,
Hospital,
App.
N.C.
S.E.
2d
denied,
331,
314 N.C.
In Trought, plaintiff, a nurse supervisor, alleged that she was discharged retaliation her unwillingness assign work nurses under her supervision violation of the state Nursing Practices Act. Trought 338 S.E. 2d at Hogan 619. In Club, Forsyth Country S.E. 2d disc. rev. S.E. this Court held *6 333 APPEALS Manufacturing Thomas Co. Coman v. a waitress at the behest was free
that an employer
resisted, even when it
advances had been
of a chef whose sexual
cause of action
sufficiently alleged a
complaint
was held that
of emotional
both the
against
for the intentional
infliction
distress
violations of Title VII of the
possible
chef and the
employer,
Though
at
Coman violate he would have had to job compensation his at the same log him to an accurate require keep that regulations 395.3(a)(l)(2). 395.1(a), hours. 49 49 C.F.R. driving U.S.C. § § fed- part comprehensive at issue are The federal Safety safety. Tandem Truck scheme ensure motor carrier eral Act, (98 98-554, & Admin. News Cong. Pub. L. No. U.S. Code Stat.) if were to regulations provide 4785-96. would be in connection with his duties he reports false 395.8(e). C.F.R. prosecution. liable of action an has a tort cause recognized
This Court to the “at will” doctrine only exception when an employer em- gives which legislature specifically our been created retaliatory discharge. for See to sue an right ployee (denial reason of labor of employment 95-81 and 95-83 G.S. (discharge filing for 95-25.20 prohibited); G.S. membership union 95-130(8) (dis- complaint prohibited); Act G.S. and Hour Wage (dis- 97-6.1 G.S. complaint prohibited); charge filing for OSHA G.S. prohibited); claim compensation worker’s filing charge testimony Employment at an in retaliation (discharge 96-15.1 Security Hearing prohibited). the rule whether decided squarely has never
This Court Smith, contract “is will” employment an “at enunciated cause, ex- with or without party, the will of either at terminable COURT OF Thomas
Coman v.
protected
in those instances
which
cept
statute,” Smith,
(1976) (citations
While we the strong public policy interests which safety the federal motor carrier regulations, we also noted at the outset of this opinion that these pro- interests are tected federal statute:
No person discharge, shall discipline, any or manner discriminate against an to the respect employ- terms, conditions, ee’s compensation, or privileges of employ- ment for refusing operate a vehicle when such operation rules, any constitutes a violation of Federal regulations, standards orders applicable to commercial motor vehicle health, safety or or because of the employee’s reasonable ap- prehension injury serious to himself or public due to the unsafe condition of such equipment. 2305(b) (1988).
49 U.S.C.A. App. remedy provided by the statute is to file a complaint within one eighty days hundred violation with Secretary of Labor. 49 U.S.C.A. 2305(c) App. § In light of the remedy, we do not see that it necessary or efficient for this Court to create state tort cause of COURT OF
Brown v. Brown where particularly action this the creation of such a cause contrary to our State’s “at will” doctrine. For these reasons we affirm the dismissal of action for failure to state a claim on which relief can be granted.
Affirmed. Judge Hedrick concurs.
Chief
Judge dissents. Wells dissenting.
Judge Wells faithfully follows majority opinion thoughtfully While the I path, public policy implica- well-established case law find the *8 as as those enunciated compelling tions this case be University, v. Duke unnerving It is to me sug- the trial court we contemplate sustaining truck drivers that it is not a employers long-distance gesting of the this state for them public policy require violation therefore, I, vote safety statutes. their drivers to violate say trial court and to that we should to overrule the case. plaintiff for relief asserted this the claim ELAINE BROWN v. JAMES DAVID BROWN SUSAN JONES
No. 8718DC1242 (Filed 1988) September injunction inappropriate preliminary Injunctions primary § 13— no action — injunction preventing entering preliminary erred in The trial court friends, neighbors, plaintiffs discussing grievances with from co-workers, preliminary in- primary to which the was no since there junction could attach. “defaulting par- separation agreement as and Wife 13— 2. Husband —defendant attorney finding fees for ty” to that effect —no —no attorney request fees based properly The trial court denied materially parties’ separation breached the that defendant on her contention terms, and, “defaulting party” for the responsible as agreement its