The opinion
John B. Robbins, Judge, dissenting. This case involves an employment contract which a trial court found was wrongfully terminated by the employer. The employee, Mr. Morgan, sued the employer, Clinton State Bank, three months after he was terminated. The majority of this court holds that the employee should have waited more than two years and four months before filing his action if he wanted to recover all of his damages.
Two issues are argued by Mr. Morgan on appeal. First, he acknowledges that Arkansas follows the minority view that a wrongfully discharged employee may recover damages under an employment contract only through the date of trial. But he contends that Arkansas law does not bar a second action by the employee after expiration of the employment contract term for the remainder of his damages. As a second issue and in the alternative, Mr. Morgan contends that if we conclude that Arkansas law does bar a second action, that we should overrule the Arkansas cases which hold that damages may be recovered only to the date of trial and adopt the majority position.
The principal reason why I disagree with an affirmance of the trial court’s dismissal of Mr. Morgan’s second action is because the reason for doing so is based on mere dictum. Clinton State Bank moved to dismiss Mr. Morgan’s second action arguing that his election to sue during the contract term, rather than waiting until expiration of the employment term, bars a subsequent action because he could sue only once. The trial court agreed and dismissed the action. Van Winkle v. Satterfield, 58 Ark. 617 , 25 S.W.2d 1113 (1894), is the sole Arkansas case which suggests this to be the law. In Van Winkle the supreme court reviewed the remedies of an employee who had been wrongfully discharged by his employer stating:
First, he may consider the contract as rescinded, and recover on a quantum meruit what his services were worth, deducting what he had received for the time during which he had worked. Second, he may wait until the end of the term, and then sue for the whole amount, less any sum which the defendant may have a right to recoup. Third, he may sue at once for breach of the contract of employment.
58 Ark. at 621 . Following this statement, the supreme court added the sentence, “He, however, can adopt only one.” On the authority of this one sentence the majority holds that an employee may sue only once. But this sentence was only obiter dictum. Van Winkle did not involve an employee who had earlier sued his employer and obtained a judgment for damages accrued up to the date of trial, and then later brought a second action for the balance of his damages after final expiration of the employment term. The supreme court’s statement that the employee can adopt only one of the enumerated remedies was clearly only a gratuitous remark. As stated by the supreme court more recently, “courts should be guided by the real holding — i.e., the essential — rather than by the dicta — i.e., the incidental, in previous cases.” Campbell v. Beaver Bayou Drainage Dist., 215 Ark. 187, 193 , 219 S.W.2d 934, 937 (1949).
The economic imbalance which usually exists between an employer and employee gives the employer a distinct advantage if it chooses to breach the employment contract. While the appellant here, Mr. Morgan, a bank president, may not have been destitute when he commenced his first action, many employees can ill afford to wait until expiration of an employment contract to bring an action for damages. Until our law is changed and Arkansas joins the vast majority of other jurisdictions which permit a wrongfully discharged employee to recover prospective damages, we can, and should, recognize the right of an employee to bring successive actions until he is eventually made whole. We should use this opportunity to so hold. Who could quarrel with the fairness of such a holding? The employee would receive no less than he is entitled: the employer would pay no more than he obligated himself to pay. I would reverse and remand.
While I agree with Mr. Morgan on his first issue, I disagree with his proposal that we overrule the Arkansas cases which hold that damages may be recovered only to the date of trial. We should not do this for two basic reasons. First, that issue is not properly before us. That issue should have been raised by appeal at the conclusion of the first action when the trial court limited Mr. Morgan’s damages to those which had accrued up to the date of trial. It is now too late to seek review of this issue. Secondly, we do not overrule decisions of the supreme court. Huckabee v. State, 30 Ark. App. 82 , 785 S.W.2d 223 (1990).