*1 trial, appellant issue at Having to raise this failed appeal. argue right to it on his waived judge the trial Likewise, appellant next asserts burglary charge be- on the a verdict have directed should breaking. appellant, prove failed to the State cause trial, objection and preserve this at however, also failed Hill, Inc., 265 appeal. Thomas and thus, it on Jones v. waived C. S. S. Wayne appellant, Garvin
Therefore, the conviction Bailey, is affirmed.
Affirmed. J., Harwell, and
Gregory, Chandler JJ., concur. COMPANY, Defendant, TOTH, D Plaintiff v. G. SQUARE
Frank 14 consolidated cases. (2d) 584) (377 E.S. Supreme Court Louthian, Jr., Louthian, Herbert W. of Louthian & Colum- bia, plaintiff. Ellzey, Pearson,
G. Daniel *2 Jonathan P. Mason G. Alex- ander, Jr., Ogletree, Deakins, Nash, all of Smoak and Stew- art, Columbia, for defendant. Haynsworth, Jr., Spears, Jr.,
Knox L. both of and James B. Haynsworth, Baldwin, Miles, Johnson, Edwards, Greaves & Greenville, curiae, Employers amicus The Ass’n South of Carolina, Inc., The Greater Greenville Chamber Com- of merce, ’n, The South Carolina Bankers Ass The South Caro- Admin., The lina Council the American Soc. Personnel of of Commerce, Spartanburg South Carolina The Chamber of Commerce, Spartanburg Development Area Chamber Ass’n, League South Carolina Sav. and South Institutions Carolina Textile Ass’n. Mfrs. 5,
Heard Dec. 1988. 13,
Decided March 1989.
Per Curiam: Supreme agreed
Pursuant to Court Rule we to answer following question by certified order of the Honorable Henderson, Karen LeCraft United Court for States District of South District Carolina: Springs Industries, Inc., Is the in Small v. 481, 357 (1987), given to retroactive be permit plaintiff effect so as to a whose was 8, 1987,1 terminated June the date the Small before filed, bring con was an action for breach of provisions tract based on the of an handbook? May 26, Judge erroneously filing date as Henderson’s Order lists the Springs Industries, Inc., (1987) 1987. Small v. actually was filed on June 1987.
FACTUAL BACKGROUND employees by employer Plaintiffs are “laid off” defendant January January in of 1986 and of 1987.Plaintiffs filed suit July August alleging of 1987 breach of contract as a alleged provisions result of violations of included an em- ployee summary judgment handbook. Defendants moved Springs Industries, Inc., supra asserting that Small v. could applied retroactively. Small, we held that could be introduced as evidence against employer. accepted breach of contract action We question application certification of the retroactive September 7, an order dated 1988.
DISCUSSION general regarding application rule retroactive “[T]he judicial creating decisions is that decisions new substantive only, rights prospective effect whereas decisions creat have existing rights applied ing to vindicate are new remedies McCaskey Shaw, retrospectively.” 368 S. E. *3 672, 1988) citing (2d) (Ct. App. Bartlett v. Nationwide 154, 157, 530, Co., (2d) E. Mutual Fire Ins. 290 S. C. 348 S. (Ct. App. 1986). “Prospective application required is when liability formerly Hupman is created where none existed.” v. College, 43, 44, 314, (2d) E. Erskine 281 S. C. 314 S. prospective application, agree To limit Small to we must action, liability that it created a new cause of with where inspection previous previously none existed. An of cases involving prospective application helpful. In Ludwick v. Carolina, 219, (2d) E. This Minute 287 S. C. 337 S. of case, (1985), employment recognized we first the tort law retaliatory discharge, thereby creating of a new cause of right. Clearly, prospective only action and a new substantive mandated, application was and this Court included state body directing in itself. Mc ment so Shaw, Appeals gave Caskey supra, pro v. the Court of only application recognition of spective to this Court’s a tort negligent emotional distress.2 As for the infliction of Company, Augusta (2d) and Door 286 S. C. 336 S. E. v. Sash Kinard negligent distress). (1985) (recognizing of infliction of emotional tort Ludwick, new tort and therefore a new cause this created a of action. prospective application to be which have held
Other cases have appropriate include those which immunities been Hyder Jones, 271 S. C. dissolved. These include: v. parental immunity (1978) (statute abrogating E.S. retroactively Stewart, applied); not Walton (abrogation interfamily (1982) E. immun 289 S. Douglass ity3 retroactively applied); v. Florence Gen not Hospital, (1979)(judicial4 eral statutory immunity for hos and modification5 of charitable pitals retroactively applied). more These cases effected They liability procedural changes. created than remedial or Further, Hyder previously existed. both where none had Douglass statutes; presumption involved for statutes is Hyder, prospectively applied. supra. they are to be examples situations where
The above-cited cases are inappropriate. retroactive relief would have been unfair and markedly from these situations. In Small we Small differs action; recognized no no new or cause of we abolished previous immunities. Small involved an action for breach elementary It is that a action for breach of contract. cause of Respondent argues contract is not a new one. that Small “substantially altered the doctrine of at-will obligations create contractual ... where none had existed (Resp. p. 3). agree brief We do not that a new before.” obligation companies has been created. The previously obligations themselves created the contractual through promises made in handbooks. Small al- as evidence of a lowed the introduction these handbooks Employers contract. cannot now be allowed to retract their promises ignore they handbooks have drafted. *4 employee provisions
The use of handbook the construc- employment relationship tion of an is not a novel idea. In fact, provisions previously introduction of such has been pro-employer setting. previously allowed This Court Elam, (2d) (1980). Elam v. 275 E.S. County Hospital Association, Brown v. Anderson 268 S. C. (1977). § S. C. Code Ann. 44-7-50 upheld the dismissal of an because a handbook provision “any employee or allowed dismissed sus- [to be] City Florence, pended by city manager.” Dew v. The Appeals E. 303 S. Our Court of upheld provisions in has also consideration of handbook Hogsed employment relationship. construction of an v. Lan- Trustees, caster Area School Board (Ct. App. 1984) (summary judgment inappropriate clearly employer’s where evidence did not establish com- pliance provision handbook). with transfer included light past upholding these decisions consideration of employment contracts, handbook to construe re- spondents’ totally claim that the Small un- decision was foreshadowed is untenable.
Finally, point already given we out that this Court has through retroactive effect to the Small decision our Cooperative, Op. in Francisco v. Black River Electric Mem. Francisco, (S. July 27, 1987). plain 87-MO-325 C. filed alleging tiff filed suit of contract based on violations breach provisions. The Small case had not yet judge been decided. The trial sustained the defendant- employer’s demurrer to the of contract cause of breach filed, subsequently ap action. Small was and Francisco pealed, arguing proceed that he was he entitled to because recognized by had stated a cause of action as Small. We agreed judge’s Although and reversed the trial decision. we recognize that Francisco is a memorandum without precedential value,6 it nonetheless indicates we have already implicitly application allowed retroactive of Small. By holding today, explicitly our we hold that Small is to be retroactively applied arising prior to causes of action to the date it was filed. question
Certified answered. J., J., dissenting Gregory, separate opinions. Justice, dissenting:
Gregory, Chief Supreme 23. Rule See Court
11 my dissenting I Because adhere to view in Small today majority because the its misconstrues the effect of holding case, in the I dissent. long-standing
It has been a rule of law in this State that employment period an contract for indefinite is termina may will any any ble at be terminated at time for reason or no for reason at all. See Todd v. S. C. Farm Bureau Mut. Co., Shealy Ins. S. E. (2d) (1981); v. Fowler, 81, 188 only exception S. The prohibition to this rule against is the discharge of an at-will public policy. contravention See v. Ludwick Carolina, This Minute S. C. 337 E. S. (1985);see 1988) (civil § also S. C. Code Ann. 41-1-70 (Supp. damages against employer discharging employee for com plying subpoena); may with (employer § 41-1-80 not dis charge employee instituting for compensation workers’ action). An employment at-will contract is enforceable as only duration if given. additional consideration is Orsini Trojan Corp., (1951); Steel 219 C. S. E. S. Perry, Weber v. appeal refusing
Small was an from an order the em- ployer’s ground motion on directed verdict the the evi- only dence established an at-will contract. The employee presented agreement no sup- evidence of a new ported by incorporate consideration to the existing the contract, handbook into at-will nor did she allege any additional consideration that would have ren- her dered otherwise terminable contract enforceable as to law, duration. existing employment Under our the em- ployer’s motion for a directed verdict should have been granted. contrary Small, majority to the the effect held that the mere existence anof employment. my view, alters nature of at-will Small created new contractual to recover which should given retroactive effect. Moreover, unsettling effect of the decision Small on employer-employee relations state this should not be aggravated by extending further retroactively. imposing liability by unfairness of newa law manifestly reasons, without notice For I clear. these dissent. Justice, dissenting: following respectfully reasons. dissent
I *6 presented, First, question is I believe the as the certified application permit retroactive majority in error to the jury to decide Small, was the said “it Small. we bulletin, handbook, the oral assurances the the whether Springs In- employment contract.” an constituted dustries, Inc., 292 S. C.
Second, if not create a new even Small did enormously expanded to re- recovery, right to it retroactively my feel, applied. and, not I should be cover disrup- potential for view, majority’s offers governing contractual legal principles tion settled obligations. Cooper
Third, Electric Black River I find Francisco v. 27, 1987), (S. July to ative, Inc., Op. filed Mem. 87-MO-325 distinguishable. be may
Therefore, decision I hold that the Small would bring plaintiff to retroactively applied allow a so as to provisions of an based on the breach of contract action employee handbook. Cheryl DOE.
In the Matter of Veronica (377 (2d) 588) Supreme Court 23, 1989. March ORDER practice attorney licensed to Cheryl is an Veronica Doe petition which was to a Pursuant law South Carolina. Disciplin- Rule paragraph 19 of the on previously filed under disability Procedure, ary Respondent was transferred by this Court. inactive status Doe, Cheryl Respondent, Veronica IT IS ORDERED Disability until further Pe- Status remain on Inactive shall this Court. Respondent and until further Order of tition of