*1 as had Marie Powell taken other children to the bus stop. gave conflicting Atkins stories as to what occurred that morning, one version that he heard C being fall as he lay bed and the other that she came behind him as he was standing in the bathroom. It is also telling neglected Atkins to mention that he fell all the down the hardwood with way stairs the child until he gave a formal statement to the six after police, days his interview at the hospital. Again, of witnesses credibility and the weight to be given fact, the evidence are for the trier of who may reject or evidence; accept any part such determinations will not be disturbed on when there appeal is substantial evidence to support State, factfinder’s conclusion. Brown v. supra.
The jury was properly instructed that facts in dispute may proven evidence, by circumstantial and that a fact is established by such evidence when its existence can reasonably be inferred from other facts in the proved case. From the testimony presented, jury could have inferred reasonably that C began suffering ongoing period abuse when Atkins moved into the home, culminating Atkins’ physical sexual abuse of C shortly before her admission to the county hospital October 31. Such circumstantial evidence sufficiently supports jury’s verdict of first degree battery and rape.
The record has been reviewed for any error prejudicial under found; Ct. R. Sup. 11(f) and none we therefore affirm. INTERSTATE SERVICES, FREEWAY INC., and Wayne
E. Stowe v. John T. HOUSER
91-291
Supreme Court of Arkansas Opinion delivered July [Rehearing denied September 1992.*] *Corbin, J., participating. not
Skokos, Rainwater, P.A., Coleman & Jay for Bequette, by: appellants.
Hilburn, Calhoun, Calhoun, Ltd., Pruniski & Harper, by: Lawson, D. James for appellee. Holt, Jr., Chief Justice. The central issue in this case
Jack is whether Services, Interstate Inc. appellants, Freeway Stowe, and (IFS), E. Wayne induced the fraudulently appellee, Houser, to accept and their manage John open restaurant, Diner, new John’s and the measure of corresponding and compensatory punitive damages. facts had underlying show that Houser managed 1980, time he volunta- at which IFS from 1971 for
restaurant to work in Houser continued his employment. terminated rily business, and, or October sometime September restaurant in which Stowe advertisement to a newspaper he responded his 76 Truck manager Stop for a shift Union advertised had filled, However, and Houser had been job already restaurant. Marlsgate chef at the as an assistant began working then Scott, Arkansas, on October 1989. near Plantation with an offer to open Stowe contacted Houser day The next Diner, restaurant, name, John’s bearing a new manage week, vacation, $500.00 paid offer included a salary per which Houser and his related insurance for both hospitalization Houser wife, of the restaurant’s gross profits. and ten percent Plantation, and, offer, notice to gave Marlsgate Stowe’s accepted for business as as quickly due to Stowe’s desire expressed open next to hire to clean began very day employees, possible, restaurant and to order food and facility, supplies. 31, 1989, John’s Diner under Houser’s opened
On October management; good business was apparently, patronage 3, 1989, however, Houser, On November as well daily. increased staff, Landers, IFS, agent as his entire was fired Bill and not following (allegedly because attitude company policy the restaurant to drink coffee and tea permitting employees 6, 1989, their beverages). without On November paying Stowe installed Landers as and a new staff was manager *4 to continue the business. The restaurant was employed operating Diner, renamed the remov by subsequently accomplished simply ing Houser’s first name from the sign. County
Houser filed a the Pulaski Circuit complaint 28, 1989; Court on November and IFS filed a motion to Stowe dismiss, and Houser filed an amended Stowe and IFS complaint. dismiss, with a second motion to which was responded granted and denied in the trial court left claim of fraud part part; Houser’s Stowe and IFS intact. against 9, 1991,
After a was awarded a jury trial Houser April Stowe and IFS in the judgment jointly severally against $2,787.00 $27,872.00 of for amount compensatory $ costs. From damages, statutory as well as 104.21 for punitive error, award, this Stowe and IFS and assert three appeal points 306 merit, judgment
none of which has and the of the trial court is affirmed as modified.
I. PROOF OF FRAUD contend appellants initially that the trial court erred in their motion for denying directed verdict and motion for judg- ment notwithstanding jury’s verdict or for new trial and instructing the on fraud due to jury Houser’s failure to prove essential elements of his claim for fraud.
Fraud is never presumed, but must be affirmatively
and the
proved,
burden of
fraud
proving
is
upon
party who
Co.,
it
alleges
Inc.,
and relies on it. Rees v.
Inv.
Craighead
336,
472 S.W.2d
(1971).
Co.,
25,
Morris v. Valley Forge Ins.
305 Ark.
S.W.2d 948 (1991)(citing Brookside
Mobile
Village
Homes v.
Meyers, 301 Ark.
Stowe also whether Houser response question restaurant, going to run the that Houser was going it, stated “[m]anage right.” Stowe also that he “. . . had Bill Landers, my general manager, down there to eye keep everything,” and Landers “. . . came night back every to me.” reported claim,
In response to Houser’s Stowe asserted that he had with complied every facet of his offer to Houser in worked, that he Houser paid for the two weeks that he as well as two weeks severance and installed him as pay, manager of the new restaurant. Houser was not employed long to receive enough paid benefits, vacation or insurance which were of the part promised package.
The jury was properly instructed the trial court that may However, not be presumed. It must be proven. you “[f]raud review may all of the circumstances of a transaction including the conduct of the parties, you infer may fraud from facts which have words, been proven. other fraud may proven by evidence, circumstantial where the circumstances are so clear and well connected as to show clearly fraud.”
Factual questions as to whether Stowe actually intended to defraud Houser and whether Houser relied justifiably on Stowe’s are representations issues within the province to decide. It is obvious that these were made representations them; and that Houser relied on based on the trial court’s instruction, fraud, the jury found and we agree. Given Houser’s concededly good reputation his profession, acknowledged by Landers, both Stowe and the terms of Stowe’s offer *6 start- of the restaurant oversight Landers’s manager, apparent as and the reasons employment, of Houser’s the short duration up, termination, say we cannot of Houser’s and circumstances on behalf of of fraud proving his burden satisfy did not Houser and Stowe. IFC DAMAGE COMPENSATORY
II. trial court erred in Next, that the argue the appellants trial, verdict, motion for new for directed their motion denying on instructing jury by of remittitur and and motion for order damage clearly his measure of damages claim for as Houser’s the State of Arkansas. to the law of contrary with modified AMI jury court instructed the The trial as follows: of liability on the plaintiff question
If decide for you fix amount must then suing, you he is against any party him fairly compensate which will money reasonably of damage sustained: following two elements of of the any income; First, of of the loss plaintiffs the value Second, benefits lost. the value of plaintiffs been damage these two elements of has Whether any is for to determine. you the evidence by proved $27,872.00, apparently awarded Houser jury trial, that, he would testified as of the time basis that Houser $500.00 $39,000.00 Using week. salary per have made from his $2,000.00 amount, that he deducted figure this as a base and severance wages pay had been from Stowe and IFS for paid $11,475.00 and added job that he had earned from another $2,347.00 determining of insurance in the amount for the cost its award. that, two IFS under the argue Stowe and
Essentially, cases, Houser was theories of for fraud since recognized recovery and he was for his two paid offered a on a job weekly salary based damages two weeks severance then pay, weeks of work plus $1.00. amount of should be reduced to a nominal generally are general Two measures of recognition underlying in actions for applied fraud The first in those actions. of both tort and contract elements measure, in which the the bargain is the benefit of measure the value of the entitled to the difference between injured party business, and its actual value or chattel as represented property, essence, would injured party at the time of the purchase. The second measure is the out-of-pocket receive his expectation. measure, being is to be made whole injured in which the party *7 he was in to the this measure injury; restored to the position prior the for the difference between the purchase price provides Brill, Arkansas Law goods actual value of the received. H. 35-37 (1990). Damages, § It has been that these two theories of recognized are difficult to where the induced recovery apply fraudulently services, is one for as See contract such personal employment. — — Annotated, Fraud 24 Damages, generally Employment (1969). A.L.R.3d 1388 In inducement of fraudulent cases, under the benefit of the measure the defrauded bargain receives the benefits he would have realized under the employee contract had the been true. Under the out-of- representations measure, the focus pocket is on the compensating injured party for the loss pecuniary sustained as a result the fraud. Id. Further, the of these theories is difficulty application increased case, by the fact that this is an employment-at-will that there is set length no of employment.
We note with the taken in the case of approval approach Security v. P.2d Berger Systems, (Colo. 795 1380 Pacific Inf. 1990), App. where an at-will who established her had concealed that the for which fraudulently project she had been hired to be terminated manage might was entitled to termination; lost wages from the time of project’s although will, was employee’s employment terminable could jury infer reasonably from the evidence that her would have continued for a reasonable time had the been as project successful as represented by employer. case,
In this Houser had worked for Stowe and previously IFS as a for manager eight years, and Stowe had been pleased with his work. All agree good that John’s Diner did parties business for a new restaurant the four that it was during days open therefore, while Houser was manager. as employed jury, for a continued work have Houser would infer that could however, the jury calculating damages; time when reasonable closed to after the restaurant the time period in its award included to be too trial, speculative this time period and we find the time of damages award. inclusion in the in the amount we that a remittitur find Accordingly, $27,872.00 $14,347.00, only encompass from damages is reasonable open, the restaurant remained during which period circumstances. in these DAMAGES
III. PUNITIVE court erred in claim that the trial Finally, appellants judg- and motion for for directed verdict their motion denying trial, verdict, remittitur for new and for notwithstanding the ment Houser’s claim for punitive as to instructing that their to meet his burden proving since he failed reckless, malicious, or intentional. conduct Moore, v. Inc. Ray Dodge, *8 of a (1972), plaintiff we noted that compensation S.W.2d 518 which the law but the penalty of punitive not purpose wanton, malicious, violation of a in for conduct which is fixes confidence, deliber or which is done with of trust or relationship There is no fixed standard another. injure ate intent lies largely and their amount damages, measurement of punitive of the on due consideration jury within the discretion of the attendant circumstances. $2,787.00 case, was not
In this award of jury’s motivation excessive in of the light appellants’ premeditated involved, actions, the of calculation degree behind the appellants’ rights of Houser’s and disregard and the extent of the appellants’ expectations. FEES FOR FOR COSTS AND
IV. MOTION ABSTRACT SUPPLEMENTARY fees for his supple- Houser has filed a motion for costs and however, $1,045.00; mental abstract in the amount in abstract of the material included his supplemental majority is, and in Stowe’s and IFS’s abstract has been included already therefore, and unnecessary repetitive. wholly $ and fees for of 100.00 for costs that an award
We find in not included abstract Houser’s supplemental those parts case. award this is an appropriate IFS’s abstract Stowe’s and Affirmed as modified.
Dudley JJ., dissent. Brown, and J., not participating. Corbin, Justice, The issues and the dissenting. Dudley, Robert H. There was majority as stated in the exactly opinion. facts are defendants, the appellants evidence to show that the substantial Stowe, court, induced the through plaintiff, in this defendant his elsewhere and to with job accept employment appellee, quit of a building them. The defendant was to clean the interior restaurant, then, of a after opening it for the prepare opening restaurant, told was to it. Defendant Stowe manage week, $500.00 that he would salary would plaintiff per vacations, insurance, and have and other paid hospitalization 10% of the The the defendants’ gross accepted profits. plaintiff term. In oral offer of for an indefinite their briefs court, this both that the contract of agree parties one of that both the oral employment-at-will, parties performed restaurant, contract that both through opening parties through the contract the first four the restaurant performed days was in but after four defendant operation, only days operation, Stowe and installed someone else as discharged plaintiff The found the defendants of the tort of manager. guilty damages. deceit and awarded The compensatory punitive affirms the modifies the amount of majority opinion finding, but it damages. majority judgment states that affirms the opinion installing because the defendants had the “hidden intent of their *9 own workers at the work had start-up restaurant after the initial been I can for standing the as completed.” only interpret opinion now, the an employée- that when an hires proposition employer at-will, else, but intends to later him with someone the replace be for the of to me to be can liable tort deceit. This seems employer evisceration, an overruling, if not a of our partial employee-at- will doctrine. Erickson, 433, 642 (1982), 277 Ark. S.W.2d 38 Griffin v. that the doctrine employment-at-will
dictum of the
states
opinion
in our case law and that the doctrine
is
embedded
deeply
expressly
the
of either
to terminate at will even
recognizes
right
party
where the conditions of
are that an
would
employment
employee
Then,
good
not be
for
cause.
in the
discharged except
significant
130,
of Gladden v. Arkansas Children’s
292 Ark.
Hosp.,
case
136,
The majority opinion does not its explain reasoning holding that the is liable employer for the tort of deceit. I can only assume that the gist of the is not that holding discharge gave rise to damages, but instead that the act of the falsely that he representing would retain the for some term, so, unspecified when in fact he never intended to do was the act which the majority gives holds rise to the damages. The
313 of the measure about majority opinion in the discussion was holds that the term of employment majority states that the time, will and that reasonable of period be for a implied from termination of employ as the period be defined normally Thus, the holds that majority employer ment until trial. the at-will right discharge his lawful give up falsely promised the facts that only is based holding upon employee. vacations, insurance, and future business discussed a comparable later employee. replaced expectations situation, we said the statement outrage, the tort of involving fact or association forward to a continued “looking a or hope was a statement “expressing more many years” said, additionally rather than a We promise.” expectation hired newly most “Surely, employers express hope them, but those long employers will career with employees enjoy sentiments to form a contract with the intend for their hardly Co., 353, 357, 700 v. Harris Arkansas Book 287 employee.” facts (1985). S.W.2d 43 It would seem that comparable case. should be construed in the same manner this issue, including A number of other courts have addressed Co., two of our states. In Price v. neighboring Mercury Supply Inc., (Tenn. 1984), 682 S.W.2d Ct. the Tennessee App. Court wrote: record, examination we find no material of this
Upon fact Mr. a claim of Price that would presented by support or otherwise. On the Mr. promissory contrary, fraud — Price’s own he testimony defeats this claim because admits that the defendants honored all commit- repeatedly ments to him commitment for lifetime except perceived statement, made, This even cannot employment. provide if because, most, the basis it allegation of fraud created a contract at the will either party. terminable [Emphasis added.] Co., F.2d 695
In Deschler v. Brown & Williamson Tobacco Cir. (8th 1986), Eighth citing Circuit Court of Appeals, law, had no discharged Missouri wrote that a applying based on an cause action for fraudulent misrepresentation lifetime where a alleged oral employer’s promises will written and terminable at unambiguous contract *11 see holdings, number of comparable There are a either party. As To Or Annotation, Prospect, Misrepresentation Employer’s Duration, Fraud, 24 A.L.R.3d As Actionable Employment Of have ruled that jurisdictions while some (1969), 1412 and actionable, none of those are an misrepresentations by claim in the context employment-at- cases discuss the fraud will. we have a is no Arkansas case squarely point,
While there
least in
to the
seem to be
at
contrary,
spirit,
number of cases that
Inc. v. Oxford,
In
holding
majority
Sterling Drug,
opinion.
239,
though
we held that even
(1988),
Ark.
Fraud cannot predicated in the instrument unfilled that is not recited which constitutes the contract of release. . . . may
‘This was not a false statement which fraud upon existing such fraud must be of facts or facts predicated; existed, which and cannot consist of mere previously acts, such are although as to future promises promises . The here com- representations broken. . . subsequently as to matters in the of relate plained solely promises future.’ Newman, 232, 191
Id.
v.
91
Conoway
S.W. at 923-24 (quoting
(1909)).
Ark.
In Harris v. Arkansas Book
287
outrage
S.W.2d
while
the tort of
(1985),
discussing
43
wrote: “Because of the em-
dismissal of an
we
employee,
claim of
right
discharge
outrage
an at-will
a
ployer’s
employee,
an at-will
cannot be
the fact of the
by
predicated upon
language,
with
discharge
approval,
alone.” We
same
quoted
596, 804
in
v. American
S.W.2d
Greetings Corp.,
Smith
Inc.,
v.
310 Ark.
(1991)
Transp.,
P.A.M.
Mertyris
Co.,
132,
As set the of the previously rationale employment-at- will doctrine is mutuality obligation. Unless a contract of time, is for a it be specified period may terminated at the will of either It is only when both bound party. parties are for a specified period that there is for mutuality a specified period, and the contract will binding be for that future period. does majority opinion not discuss the need for but the mutuality, tort of deceit also obviously requires mutuality. If one can party tort, of the the guilty so can other. Under precedent if majority opinion, an employee job takes a about inquires vacations, insurance, and future business but has a expectations, hidden intent to take job a better when it comes along, as most do, he employees subject too will be for to suit the tort of deceit bewill liable to for employer a reasonable period of time. law, our
Under established this case had employer right time, to discharge the so long as it was not employee any for a against reason policy. There was no evidence of a public representation by give right that he would to employer up Thus, terminate there employment-at-will. was no deceit. To does, hold, give facts of this case that the opinion as the majority an deceit an because against of action for rise a cause time is to disembowel for a reasonable was not retained employee the reason- discussing without doctrine the employment-at-will I dissent. ing. Justice, dissenting. There was no Brown,
Robert L. deceit in this case. The circumstances evidence of pretextual fraud are these: by majority support adduced good reputation. Houser had a 1. which was an employment package
2. He offered and insurance benefits that included vacation paid he never received. Landers, Bill manager, kept Another Interstate
3. of him. eye two weeks.
4. His lasted giving for an attitude and for problem 5. He fired tea and coffee away employees. the substantial of fraud? proof
Where in these circumstances is leading out events to an up All the has done set majority — pretextual call it new name termination and *13 deceit. as the
Fraud can be inferred from circumstantial evidence “where the circum only But that can occur majority emphasizes. fraud,” show stances are so clear and well connected as to clearly that fraud is legion as the was instructed. Our cases are also never but be circumstan presumed affirmatively proved by must See, or v. Bradley tial actual evidence. Southern Farm e.g., Co., (E.D. 1975); Bureau 392 F. 478 Ark. Supp. Cas. Insur. 384, 653 Co., v. Land 279 Berkeley Pump Reed-Joseph Co. v. (1983); Corp. 128 Electric Cooperative S.W.2d Ouachita Clair, Ark.App. 171, 672 S.W.2d 660(1984).That Evans-St. majority opens was not done in this case. its decision By Hereafter, litigation. anytime door for frivolous contend, he or she can during fired early days employment, was a pretext without further that the employment proof, short along all to hire only that the intended term. That cannot be the law.
aFor cause of action in deceit to there need be more prevail, than a conjured and a There must theory suspicion conspiracy. actual, either circumstantial or to sustain the proof, theory. Here, proof gossamer thin. We fraud when we presume without substantial evidence to it. I adopt theory would support reverse the judgment.
VIKING INSURANCE COMPANY of v. Wisconsin
Ramona JESTER
91-253
Supreme Arkansas delivered Opinion July