*1 twеnty- child’s years age, jurisdiction be extended to necessary purposes of education or birthday if first correction). jurisdiction to longer family court no has
Because the protective at custody issue a order or to determine Sasha’s Accordingly, request, case is moot. her mother’s this appeal is
Dismissed.
Toal, J., participating. not INC., INDUSTRIES, Appellant. SMALL, Respondent Kаthy v. SPRINGS (2d) 808) (388 S. E.
Supreme Court *2 Benjamin Johnson, David A. White and A. of Roddey, Carpenter P.A., Hill, White, Spratt & Rock J. White and Christopher Barnard, Legal Dept., Springs Industries, Inc., Mill, Young, Nelson, Fort and Kenneth E. Mullins, Riley Greenville, appellant. Scarborough, & for Louthian, Jr., W. and Herbert W. Louthian Herbert Columbia, respondent. Louthian, & Louthian for May Heard 1989. Feb.
Decided
Toal, Justice: Industries, Inc., C. 357 S.
In Small v. verdict, upheld jury (1987), (Small I) this Court (2d) 452 Industries, Small for the finding Springs Inc. was liable to contract, re- damages resulting but from its breaсh damages, reversing jury’s award of manded the issue of $300,000 present appeal by Indus- as excessive. tries, damages trial which the Inc. is from the remanded $100,000. jury awarded Small We affirm.
FACTS employed eight years spinner with as a Springs Industries, (Springs). Springs’ employee hand- Inc. *3 employees. step procedure firing book set out a four for following procedures Springs discharged the Small without Springs brought against outlined in its Small suit handbook. employment arguing for her at-will breach of contract employee provisions hand- by status altered the of the trial, had In found that book. the first for the was liable breached a with Small and contract affirmed the This Court resulting from its breach. damages for a new of liability the issue issue and remanded trial. Springs made an opinion,
Following Small I this Court’s rеemployment to Small. alleged unconditional offer of previous position, her proposed offer Small to to reinstate physical exam- normal seniority restore her waive the all other specified that requirement. ination The offer “[i]n identical to that of other respects employment will be [her] given a also be “clean” hourly-paid employеes.” would Small was not of reinstatement disciplinary This offer record. litigation between pending of the conditioned on settlement parties. offer. refused the Small $100,000 damages. in retrial, On Small awarded appeal by Springs This followed.
484
DISCUSSION Wrongful Damages Termination and working employer An an under individual for a con employment period of tract for an indefinite can be Shealy Fowler, 81, 188 terminated at will. v. 182 S. C. (1936). generally S. E. 499 At-will is terminable by any time, party any either at for reason or for no reason at all. Todd v. South Carolina Farm Bureau Mut. Ins. 284, (2d) remand, E. (1981), appeal 278 S. 607 after 155, (2d) App. 283 S. 321 E. (Ct. 1984), granted C. S. 602 writ part, 84, in (2d) quashed, 285 S. (1985), C. S. 479 287 190, (2d) (1985). S. C. 336 S. E. 472 The termination of an at- employee normally give will does not rise to cause action Inc., for Engraving Co., breach of contract. Hudson v. Zenith However, (1979). 273 S. C. 259 S. certain situations, employer’s an discharge limited of an at-will employee may give rise wrongful to a cause action discharge such employee as where the status of the at-will by handbook, altered the terms of Inc., Industries, 292 C. E. (2d) 357 S. (1987), discharge or where the violates a mandate of clear public policy. Carolina, Inc., Ludwick v. This Minute S. C. 337 S. E. wrongfully
A discharged suing for breach of contract is entitled to receive the of the em- amount ployees’ employer’s net losses caused breach. (Second) Agency (hereinafter § Restatement (1958) Restatement); Williston, A Treatise on Law of (3rd Jaeger) (hereinafter § Contracts Ed. Williston). Such pay losses include as well back as future § 1361. Williston Mitigation Damages
2. of operates The of consequences doctrine in avoidable
wrongful discharge actions, others, permit in to as a wrongfully discharged employee only recover to damages which, diligence, for in losses the exercise of due he Corbin, 1359; could not § avoid. Williston 5 A. Corbin on (1964); § § Contracts 1095 Restatement 455 comment d. The employee’s duty mitigate damages permits so-called to his employee the by to recover the amount his losses caused
485 employee amount the reduced employer’s breach diligence have ob- through could obtains, reasonable or body A employment. Id. sizable tained, from other suitable employment defining types of other developed has of law in particular accept under circumstances employee must an Annotation, generally mitigate See his order to Employee Employment Must Which Alternative Nature of Discharge, 44 Damages Wrongful Accept For to Minimize fully employee has (3d) (1972). Whether an A. L. R. 629 question Mixon v. damages a of fact. mitigated is his (1953). Rossiter, 223 S. C. Reemployment
3. Offer of
(a) Fide Offer Bona may employment which serve break One source of damages employee’s is an an the chain of causation wrongfully discharging reemployment by the offer discharged rule, wrongfully em general a employer. As a faith, good bona fide offer accept employer’s ployee must d; Williston comment reemployment. § Restatement reemploy offer of qualify a bona fide § In order to employer’s must re ment, discharging offer wrongfully substantially similar employee the same or instate the Co., Henry Kraker pay. position at the same Flickema require not (1930).The must offer Mich. 233 N. W. pursue his cause of legal right to to waive his University v. Chau discharge. Alaska wrongful action for 1974). vin, (Alaska 521 P. employer to show proof upon the The burden of on its face. fide reemployment is bona that an offer of its if it defends burden carries this defendant fide offer to liability damages ground of a bona on the Henry 252 Mich. reemploy. Kraker Flickema v.
N. W. 362 Refusal (b) Faith and Reasonable Good re- facially fide of a bona The existence employee’s necessarily limit the not does An damages of the offer. to the date suffering diminu- reemployment without refuse an offer of ground for is a reasonable where there tion of his *5 486 employee’s refusal, something
the
such as where
has oc
рarties
curred to render further association between the
degrading
offensive or
to the
or where other cir
cumstances exist which would make such a renewal of ser
inequitable.
Toale,
(1886) (a
vices
See Mitchell v.
25 S. C. 238
dismissing
right
any
master
a servant has no
to recall at
pain
time and under all circumstances after dismissal on
forfeiting
right
recover);
Anderson,
all
Saunders v.
(1834) (impliеdly recognizing
rule);
S. C. L. 486
this
see also
Gray
Co.,
234, 155
v.
Suction Cleaner
Cal.
P. 469
Pacific
(1915);
Co.,
v.
Schisler
Milker
193 Minn.
Perfection
Davis,
1, 173
(1934);
App.
N.
Price v.
187 Mo.
W.
S. W. 64
(1915);
d;
1359;
§
§
Restatement
455 comment Williston
see
generally Annotation, Employer’s
to Take Back Em
Offer
Affecting
ployee Wrongfully Discharged
Former’s Lia
bility,
(1931);
(2d) Damages
72 A. L.
22 Am.
R. 1049
Jur.
522§
(1988). Further,
employee may
offer,
an
the
show
bona fide
face,
good
Gray
on its
is not made in
faith.
Suсtion
Pacific
Cleaner
Cal.
Whether is made in bad wrongfully discharged faith and whether a em- ployee’s accept refusal an unconditional offer of reemployment questions is reasonable are to be determined by the fact finder. § Restatement 455 comment d. The bur- proof upon den of the showings, to make these by making as the defendant has carried its burden a show- ing fаcially reemployment. of a bona fide offer of
Springs argues reject general that this Court should relating wrongfully discharged employee’s rule to a duty to mitigate damages require employees accept and that must facially reemployment by unconditional offer of made employer damages awards, or suffer diminution of their irrespective good of thе reasonableness or faith of the offer. majority rule, recognized by We are convinced the this Court fifty years ago, over one hundred and is the better rule. Jury 4. Trial Court’s Instructions to the thoroughly properly by instructed trial court only that Small was entitled to recover those compensatory damages which had been established preponderance of the evidenсe. The trial court instructed in order to determine the amount Small’s damages, they certainty must determine with reasonable long employed by how Small would have continued to be *6 wrongful discharge. Springs but for the The trial court emphasized plaintiff’s employment that status was at-will. Further, jury the trial court instructed the that Small was conjectural speculative to or The not entitled trial judgе charged jury the that Small’s should be by any reduced amounts she obtained or could have obtained employment. through diligence from other reasonable Specifically, respect Springs’ reemploy- with to offer of ment, deciding the trial court instructed that in whether reasonably rejected Springs’ offer, jury Small should first, the offer return consider: whether was to Small to the substantially position same or a similar to that from which discharged; second, required she was the offer a whether employee’s rights waiver or modification of the under the contract; third, original anything and whether had occurred parties which would render further association between the degrading offensive or to Small.
5. Standard Review action, As a contract this is an action аt law. Small v. Industries, Springs Inc., 292 S. C.
(1987). in This Court’s standard of review an action at law is correcting law; limited to errors of this Court will not re- jury’s findings in verse a factual unless there is no evidence reasonably supports jury’s findings. the record which Id.; Associates, City Greenville, Townes Ltd. v. Application to the Facts Law Springs presented facially evidence of a bona fide Thus, reemployment. proof
оffer of the burden of was upon present facially to Small evidence that the bona good in fide offer was not made faith or that her refusal of the offer was reasonable. fired, testified when
Small she was she cried and begged job for her but that she was told she would never be permitted Springs again long to work for as she lived. fairly Small testified that in would not treat her future, they not сare her. She testified because did about merely company made the offer as an that she believed the damages following attempt to minimize its the adverse rul- Court, despite “they they ing in this the fact knowed Further, throughout proceedings. wrong” the entire wrong, they she would “do me testified feared [but] way nothing I it.” do it in a where could not do about would foregoing testimony to raise wаs sufficient We believe reasonably refused question a of fact as to whether Small reemployment Springs’ fa- Springs’ offer of and whether was, fact, good in cially offer made faith. unconditional jury question proper instructions considered the on Springs. against decided
Having issue on the determined that Small created accept Springs’ reasonableness of her refusal reemployment good and the faith of the offer which the adversely Springs, damages were not decided Small’s *7 reemployment. limited to the date of the offer of The next of the issue before this Court is the extent and elements Springs damages future Small is to recover. con- entitled long have tends Small failed to establish how she would employed damages continued to be with and future are, therefore, speculative. Springs requested the trial court charge employment the duration of Small’s an essential element her of contract claim. As of breach above, they charged jury that must noted the trial court employment determine the duration of Small’s continued damages. charge speculative and could not award This sub- stantially Springs’ requested charge. Springs did included request charge specifically respect not to the method with calculating damages. of or the elements of future More judge’s charge, importantly, at the close of the trial he asked any exceptions charge or whether it had to negative requests charge. Springs replied further to in the has, therefore, any objеction might properly and it waived Metropolitan have raised on this issue. Clements v. Ins. Life Co., jury’s E. (2d) 266 S.C. S. The range damage testimony award is within the experts. Therefore, presented this Court’s stan- Small’s requires us to affirm. dard of review Remaining Allegations Error Springs’ remaining allegations disposed of error are pursuant Supreme Summary judgment, A. Court Rule 23: Williams v. 267 C. Lumber S. Chesterfield (1976) (trial deny summary court must a motion fоr facts, judgment, light unless the viewed in the most favor- party opposing summary judgment plain able to the are and indisputable, and are such that minds cannot reasonable differ); Expert Witham, testimony, B. Darden v. (1974) (error not reversible unless
prejudice complaining party may have resulted there- from).
Affirmed. J., JJ.,
Harwell, Finney, C. and Chandler and concur. Acting Justice, Littlejohn, Associate dissents and con- separate opinion. curs Acting
Littlejohn, (concurring Associate Justice and dissenting): writing opinion originally of the in this case fell to I proposed opinion
me. submitted to members of Court a affirming the majority trial court as modified. A Court, having view, taken I my origi- a different now order opinion printed my concurring dissenting opin- nal ion. It follows: appeal awarding respondent
This is from a vеrdict $100,000 for breach of an contract after retrial on the issue of We affirm as modified herein. *8 appellant Springs
Small commenced this action after In- dustries, (Springs) employment Inc. terminated her without honoring four-step discharge procedure set forth in Springs’ employee trial, jury handbook. At Small won a $300,000. appeal, Springs’ verdict of On this Court affirmed liability employment for breach of the contract because the provisions employee of the handbook were enforceable de- spite employment Small’s otherwise at-will status. We re- case, however, manded the for a new trial on the issue of damages $300,000 finding award excessive. Small v. Springs Industries, Inc., I). retrial,
(1987) (Small Upon Small won a verdict of $100,000. appeal This follows.
Springs judge failing contends the in trial еrred rule to a matter of law only that Small was entitled to recover lost wages rejection to the date of her Springs’ reinstatement. ISprings
After this in Court’s decision Small tendered Small an pre- unconditional offer of reinstatement to her position, restoring seniority waiving vious her and the nor- physical requirement. mal examination specified The offer respects that еmployment all others will be identi- “[i]n [her] cal hourly-paid employees.” to that of other Small would given also be disciplinary a “clean” record.
This offer of reinstatement was not conditioned on settle- pending litigation parties. ment of the of the The offer was made one authorized to on Springs. contract behalf of It writing patently was in respects. Small, in bona fidе all however, only given refused the offer. The reason for this rejection longer was she Springs that no “trusted” because only the offer had come after the decision in Small I. There was no any reason for to make offer until it was discharge irregular. determined that No court in South Carolina had employee before this time held that an impact. handbook had ruling contrаctual It was not until the of this I court Small became aware of the part fact that such handbooks were of the contract. being genuine face,
The offer on its it became the burden of Small to show to the court that reinstatement under the circumstances inequitable. would be obligation Small had an mitigate damages by to accepting employment. Small’s ex- pert testified her wages lost unaccepted to the time the expired $24,911. reinstatement offer totalled An seeking damages employ- for breach of an duty ment contract mitigate has a to I, those S. C. at question at before us duty mitigate requires whether this accept an unconditional offer of reinstatement. We hold it Only if does. inequitable finds reinstatement under circumstances future be considered. This rule is consistent with in many jurisdictions that followed
491
See,
for breach of an
e.g.,
contract.
Univ. of
Chauvin,
P. (2d)
(Alaska
Alaska v.
521
1974);
1234
Billetter v.
Posell,
858,
App. (2d)
94 Cal.
(2d)
(1949); Ryan
211 P.
621
v.
City High
Dist.,
App. 63, 146
Mineral
27
School
Colo.
P. 792
(1915);
Cup Co.,
App.
632,
Schwarze v. Solo
(3d)
Ill.
68
112[1].
228,
(2d)
Dec.
445 N. E.
(1983);
Henry
872
Flickema v.
Co.,
406,
Kraker
252 Mich.
(1930);
Here the any record is devoid of evidence reinstatement under the terms offered inequitable. would have been In determining involved, whether a issue is we tradi- tionally apply the application always scintilla rule. Its is not easy. reasoning of the court in the case of In re Crawford, (1944) S. C. 30 S. E. equally applicable here. Taylor
In Railway Co., 552, 556, the case of 78 S. C. S. E. [1907], this court said: ‘A scintilla of evi- any that, true, dence is material evidence if would tend juror. establish issue the mind of a reasonable (Italics added.) adhering rule,
Whilst scintilla this court has recognized supplemental a rule rule, to the scintilla propounded which is thus in the case of National Bank Barrett, Jr., 1, 174 v. Thomas J. & E.S. [1934]; ‘If it be conceded there that be deduced
by process a reasoning unusual finesse of that there * * * is a scintilla of evidence nevertheless there is an rule, other upon more founded common sense and rea son, to the only effect that when one reasonable just inference, inference not one but one reasonable inference, evidence, can be deduced from the it becоmes question court, question of law for the and not a jury.’ fact for the
Small would create bootstrap- a scintilla of evidence ping her claim based on her supported own conclusions not by the record. She testified: you accepted you why ... let me ask have not
Q. employment? *10 they I don’t believe would be fair me. A. Because judge should have held as a matter conclude that We compensation to no further law that was entitled of improperly per- rejected the offer. The she after reaching its future verdict. mitted consider pay today employee holding entitles an to back Our an at-will contract reinstatement for breach of provisions employee of an on of hand based violation remedy appropriate by This has been held other courts book. employee. addressing wrongful discharge See, of an at-will Village Romeoville, (3d) 286, App. 85 Ill. e.g.,Redemske v. Brockmeyer (2d) (1980); N. E. v. Ill. Dec. Dun (1983); W. Bradstreet, Wis. 335N. see & Moreover, Annot., 44 A. L. it generally R. 4th 1131 wrongful remedy provided legislatively for dis the same compensation charge pursues who a worker’s an (Supp. 1988). judicially § S. C. Ann. 41-1-80 To claim. Code greater recovery wrongful discharge for of an at-will allow a incongrous result. in this instance would be We remedy equitable the em find such while with consistent mitigate. ployee’s duty to $24,911.
Accordingly, jury’s verdict is reduced to Brokers, CAROLINA BUSINESS BROKERS d/b/a Sunbelt Business STRICKLAND, George Respondent. Petitioner C. (388 (2d) 815) E.S.
Supreme Court Charleston, Hitchcock, Hitchcock, L. Robin Brock & petitioner. Philip Middleton, Wills, IV A. Thomas J. and Robert A. Patterson, Whaley, Barnwell, Helms, & all Patterson respondent. Charleston, for