Commercial Business Systems, Inc. v. BellSouth Services, Inc.

JUSTICE WHITING,

with whom CHIEF JUSTICE CARRICO joins, dissenting.

While there are several reasons for my dissent, I focus upon only two. First, I do not think that the majority has correctly applied the test for vicarious liability in cases of this kind. In distinguishing Davis v. Merrill, 133 Va. 69, 77-78 , 112 S.E. 628, 631 (1922), and Tri-State Coach Corp. v. Walsh, 188 Va. 299, 305 , 49 S.E.2d 363, 366 (1948), the employee-assault cases relied upon by the majority, we indicated that the test was whether the tortious act

(1) was an act fairly and naturally incident to the business of the employer, and (2) was . . . done with a view to further the master’s interest or from some impulse or emotion which naturally grew out of or was incident to the attempt to perform the master’s business, and did not arise from some external, independent and personal motive on the part of the servant to do the act upon his own account.

Cary v. Hotel Rueger, Inc., 195 Va. 980, 984 , 81 S.E.2d 421, 423 (1954) (citing Tri-State Coach Corp.).

In Davis and Tri-State Coach Corp., described in detail in the majority opinion, the agents’ acts incident to their principals’ business were motivated by aberrant impulses or emotions which grew out of that business. However, in Cary , another employee-assault case, we held that there was no vicarious liability because the employee’s act “arose from an independent and personal motive on the part of [the agent] to do the act upon his own account.” 195 Va. at 987 , 81 S.E.2d at 424 .

In Cary , a hotel bellman shot a hotel guest during an argument over a debt the bellman owed the guest when the guest prevented the bellman from leaving a hotel elevator to deliver some ice to another guest. 195 Va. at 982 , 81 S.E.2d at 422 . We noted that the arguments in Davis and Tri-State arose from the manner in which the employee did his work, but in Cary , we observed that *52 even though “the fatal shooting took place on the hotel’s elevator while [the employee] was operating it, . . . the shooting did not arise out of this service.” Id. at 986-87 , 81 S.E.2d at 424 .

The majority notes correctly that Waldrop’s “motive was personal—to advance his self-interest, rather than the interest of BellSouth.” Yet the majority makes BellSouth responsible for his act.

Applying the standards articulated in Cary , I conclude that BellSouth is not liable for Waldrop’s tort because: (1) Waldrop’s alleged acceptance of a bribe in return for negotiating a contract unfavorable to BellSouth was not an act fairly and naturally incident to his duties for BellSouth; (2) the act was not done with a view to further BellSouth’s interest; (3) the act did not arise from some impulse or emotion which naturally grew out of BellSouth’s business, nor was it incidental to his attempt to perform Bell-South’s business; and (4) Waldrop’s tort arose from his “external, independent and personal motive” of greed in taking a bribe in return for the award of a contract disadvantageous to BellSouth.

In my opinion, Waldrop’s fraudulent act was no more within the scope of his employment than was the act of the bellman in Cary . Thus, I do not agree that Waldrop’s tortious act bound BellSouth.

My second reason for dissenting is that I do not think CBS can do indirectly what it could not have done directly. In my opinion, BellSouth would not have been liable to CBS if it had refused to renew CBS’s contract for no reason at all, or for an improper reason not contrary to a clearly articulated public policy. Miller v. SEVAMP, Inc., 234 Va. 462, 465 , 362 S.E.2d 915, 916-17 (1987) (at-will employment contract may be terminated by either party “for any reason, or for no reason”).

We apply two “narrow” exceptions to termination rights of at-will employment contracts. Each is based on public policy articulated in statutory provisions. See Lockhart v. Commonwealth Educ. Sys., 247 Va. 98, 102 , 439 S.E.2d 328, 330 (1994) (racially motivated discharge of at-will employee); Bowman v. State Bank of Keysville, 229 Va. 534, 539-40, 331 S.E.2d 797, 801 (1985) (retaliatory discharge of at-will employees for exercise of their stockholder-voting rights). * Since such a contract can be termi *53 nated for no reason, at least one jurisdiction holds that there is no liability for termination for improper reasons. Salter v. Alfa Ins. Co., 561 So. 2d 1050, 1054 (Ala. 1990).

Here, we are dealing with a claim of an allegedly improper refusal to renew a contract rather than an allegedly improper termination of an at-will contract. However, the same principles apply in both instances. See Glass v. Glass, 228 Va. 39, 51-52 , 321 S.E.2d 69, 76-77 (1984); FOWLER V. HARPER, ET AL., THE LAW OF TORTS § 6.13, at 360 (2d ed. 1986); W. PAGE KEETON, ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 129, at 987 (5th ed. 1984 & Supp. 1988) (causes of action for interference with prospective and at-will contracts analogized). And the majority articulates no public policy imposing a direct liability upon BellSouth even if it had refused to renew CBS’s contract for no reason at all or for an improper reason.

I conclude that no public policy is served by imposing a vicarious liability upon an innocent principal for its agent’s independent tort in advancing his own interests at the principal’s expense. Accordingly, I would affirm the court’s judgment for BellSouth.

Examples of the application of these and other narrow exceptions by other jurisdictions are cited in Bowman, 229 Va. at 539-40 , 331 S.E.2d at 800-801 , and Michael A. *53 DiSabatino, Annotation, Modern Status of Rule that Employer May Discharge At-will Employee for Any Reason, 12 A.L.R.4th 544 (1982 & Supp. 1993).