# Counce v. MBM Company, Inc.

> Court of Appeals of Arkansas · April 16, 1980 · 266 Ark. 1064

URL: https://www.frixlaw.com/law-library/cases/9768252

## Case

- **Full name:** Shirley Ann COUNCE v. M.B.M. COMPANY, INC.
- **Court:** Court of Appeals of Arkansas
- **Decided:** April 16, 1980
- **Citations:** 266 Ark. 1064; 597 S.W.2d 92
- **Precedential status:** Published
- **Opinion:** Dissent by Penix
- **Judges:** Wright, Penix
- **Cited by:** 9 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/9768252

## Opinion text

Marian F. Penix, Judge, dissenting. I would affirm the granting of the summary judgment by the trial court. I find there to be no material issue of fact.
It is basic in tort law that a plaintiff must prove 1) a duty owed, 2) a breach of that duty and, 3) damages proximately caused by that breach. Jonesboro Coca-Cola Bottling Co. v. Young, 198 Ark. 1032 , 132 S.W.2d 382 (1939).
Even if we adopt the rule outlined in Agis v. Howard Johnson Co., 371 Mass. 140 , 355 N.E. 2d 315 (1976) and make it applicable in Arkansas, the plaintiff’s case could not stand — she has suffered no damages. The tort of wrongful discharge, a new cause of action, is nevertheless a tort and must meet the tort test.
Does an employer owe an employee the duty not to fire? In our system of free enterprise does an employee have an automatic intrinsic interest in his or her particular job? All of the actions taken by the employer were agreed to by the employee at time of employment. No one enjoys losing her job, but an employer is not required to retain an unsatisfactory employee, nor is the employer responsible for hurt feelings because of the discharge which was within the employer’s right. The employer owed appellant no duty to retain, therefore, how can we say the employer is responsible for the appellant’s unhappiness following such discharge.
Where no right has been violated there is no injury for which the law affords compensation. McCoy v. Board of Directors of Plum Bayou Levee District, 95 Ark. 345 , 129 S.W. 1097 (1910).
The manner of the discharge may be subject to dispute. This, however, does not require a reversal, for the appellant’s testimony reflects no damage nor injury.
Q. Did Jan Highlander ever accuse you of stealing.
A. No, she didn’t.
Q. According to you you don’t have any information, MBM or Coleman’s or anybody said anything to you about you being suspicioned of taking anything or participating in taking anything as far as you know nobody said anything like that to the unemployment people?
A. Not that I know of.
Q, ... I want to know to your knowledge has anybody at Coleman’s ever told anybody else that you had either taken, stolen or participated in stealing or misappropriation of anything?
A. Not that I know of. I don’t know if I understood that question or not.
The trial judge considered the depositions filed, the arguments of counsel and the applicable law and granted a summary judgment for the appellee. I would affirm the judgment. Therefore, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9768252. Public record. Not legal advice.