# Hodges v. S.C. Toof & Co. > Tennessee Supreme Court · April 20, 1992 · 833 S.W.2d 896 URL: https://www.frixlaw.com/law-library/cases/9760868 ## Case - **Full name:** Carl E. HODGES, Plaintiff-Appellant, v. S.C. TOOF & COMPANY, Defendant-Appellee - **Court:** Tennessee Supreme Court - **Decided:** April 20, 1992 - **Citations:** 833 S.W.2d 896; 60 U.S.L.W. 2679; 7 I.E.R. Cas. (BNA) 650; 1992 Tenn. LEXIS 312 - **Precedential status:** Published - **Opinion:** Concurring in part by O'Brien - **Judges:** Drowota, Reid, Daughtrey, Anderson, O'Brien, See - **Cited by:** 1,104 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9760868 ## How later opinions describe it (automated extraction) - holding that punitive damages may be awarded only if a court finds that the defendant “acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly” - stating that if common law comes first, then subsequently created statutory remedies are cumulative unless expressly stated otherwise by the General Assembly - holding that liability for punitive damages must first be established in a separate proceeding before the amount of punitive damages can be determined ## Opinion text O’BRIEN, Justice, concurring and dissenting. I concur with the lead opinion to the extent that I agree Mr. Hodges had a right of action against his employer in accordance with the provisions of T.C.A. § 22-4-108. I am not prepared to make a further incursion on the province of the legislature to establish public policy for the reasons stated in Chism v. Mid-South Milling Co., 762 S.W.2d 552, 558 (Tenn.1988) and Harney v. Meadowbrook Nursing Center, 784 S.W.2d 921 (Tenn.1990). In Smith v. Gore, 728 S.W.2d 738 (Tenn.1987), at p. 747, this Court clearly reiV erated the rule which applies under the public policy doctrine: “[It is generally recognized that the public policy of a State is to be found in its Constitution and statutes, and] only in the absence of any declaration in [Constitution and statutes] may [public policy] be determined from judicial decisions. *903 [In order to ascertain the public policy of a State in respect to any matter, the acts of the legislative department should be looked to, because a legislative act, if constitutional, declares in terms the policy of the State, and is final so far as the courts are concerned.] All questions of policy are for the legislature, and not for the courts ... [Hence the courts are not at liberty to declare a law void as in violation of public policy.] Where courts intrude into their decrees their opinion on questions of public policy, they in effect constitute the judicial tribunal as law making bodies in usurpation of the powers of the legislature,” Cavender v. Hewitt, 145 Tenn. 471, 475-76 , 239 S.W. 767 , 768 (1921). (Emphasis supplied). In Chism v. Mid-South Milling Co., supra, at p. 555, this Court recognized that T.C.A. § 22-4-108(f) imposed a restriction upon an employer’s right to terminate an employee for service on a jury and provided statutory sanctions for its violation. On the basis of the court’s opinion in Clanton v. Cain-Sloan Co., 677 S.W.2d 441 (Tenn.1981), the majority now seek to boot strap appellant into position where he may have available a tort action of retaliatory discharge as a consequence" of his employer’s violation of a clearly expressed statutory policy. To accomplish this, while acknowledging that when a statute creates a new right and prescribes a remedy for its enforcement, the prescribed remedy is exclusive, Turner v. Harris, 198 Tenn. 654, 664 , 281 S.W.2d 661, 665 (1955); Nashville & C.R.R. v. Sprayberry, 56 Tenn. 852 , 854 (1874); the majority cites Leach v. Rich, 138 Tenn. 94, 105 , 196 S.W. 138 , 140 (1917), for the proposition that, where a common law right exists, and a statutory remedy is subsequently created the statutory remedy is cumulative unless expressly stated otherwise. Clanton did not create an exception to the common law, employee at will rule. The Court merely recognized that implicit within the provisions of T.C.A. § 50-6-114 a cause of action existed to prevent an employer from utilizing retaliatory discharge as a device to defeat the rights of an employee under the Worker’s Compensation Law. See Harney v. Meadowbrook, supra. Leach is a somewhat abstruse case dealing with successive statutes concerned with replevin actions. The only thing it seems to say, as it relates to this case, is that “[s]ummary remedies, being in contravention of the common law, are generally held to be cumulative in the absence of language showing that they are intended to be exclusive.” How T.C.A. § 22-4-108(f) can be in contravention of a common law right which never existed is something that escapes me. In this case T.C.A. § 22-4-108(f) does establish a clear public policy against the discharge, demotion, or suspension of an employee for taking time off to serve on jury duty, evidenced by an unambiguous statutory provision setting out the employee’s rights in the event of such action by his employer, and providing for sanctions against the employer for its violation. For this Court to reach beyond its mandate is one more step toward blurring the line of demarcation establishing the initiatives of the separate branches of government. I would affirm the Court of Appeals. Since the clear logic of this dissent has not persuaded the majority, I concur in part two of the lead opinion in reference to the procedure for awarding punitive damages. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9760868. Public record. Not legal advice.