Beane v. WEIMAN COMPANY , 5 N.C. App. 279 ( 1969 )

168 S.E.2d 233 (1969) 5 N.C. App. 279

Sarah G. BEANE
v.
WEIMAN COMPANY, Inc., Louis J. Galvan and George Fricella.

No. 6919SC264.

Court of Appeals of North Carolina.

July 2, 1969.

Alston, Pell, Pell & Weston, by Jerry S. Weston, Greensboro, for plaintiff appellant.

Block, Meyland & Lloyd, by A. L. Meyland, Greensboro, for defendant appellees.

BRITT, Judge.

It is noted in the record on appeal and in the briefs that defendant Galvan is variously referred to as Louis J. Galvan, James J. Galvin, Lou Galvan, Lewis J. Galvin, Louis J. Galvin, Galvan, and Galvin; we proceed on the assumption that his correct name is Louis J. Galvan.

The question presented is whether the facts alleged in the complaint, when construed liberally, state a cause of action.

Both in her complaint and in arguments before this Court, plaintiff contends that her relief is on the theory of malicious interference with contractual relations, rather than breach of contract. The plaintiff was an employee at will.

The leading case in North Carolina on interference with contractual relations is Childress v. Abeles, 240 N.C. 667, 84 S.E.2d 176. The elements of the tort, according to that case, are the following: First, that a valid contract existed between the plaintiff and a third person, conferring some contractual right against the third person; second, that the outsider had knowledge of the plaintiff's contract with the third person; third, that the outsider intentionally induced the third person not to perform his contract with the plaintiff; fourth, that in so doing the outsider acted without justification; and fifth, that the outsider's act caused the plaintiff actual damages.

The corporate defendant is clearly excluded by the terms of the first requisite, since the contract was with it and not with a third person. As to defendant Fricella, no act is alleged except the communication to Mr. Goddard of Fricella's opinion as to the identity of the person who called his wife. There is no allegation as to the purpose of this communication or that it induced Goddard, as agent of the company, to refuse to continue the employment of the plaintiff. Thus, there are no facts alleged tending to show "that the outsider intentionally induced the third person not to perform his contract with the plaintiff." Childress v. Abeles, supra. "* * * [P]laintiff must allege every fact necessary to constitute his cause of action so as to disclose the issuable facts determinative of his right to relief, and recovery must be had, if at all, on the theory of liability set forth in the complaint. * * * A mere allegation of the legal conclusion which the pleader conceives should be drawn from the evidence he intends to offer is insufficient." 6 Strong, N.C.Index 2d, Pleadings, § 2, p. 292 (numerous citations). See also 30 Am.Jur., Interference, § 28, p. 77.

As to defendant Galvan, there is a similar deficiency in plaintiff's allegations, except that plaintiff alleges she was told by Goddard that Galvan had said he would not work for the company while plaintiff was employed there. This statement does not amount to an attempt to induce the company to terminate its contract with the plaintiff. Galvan had a legitimate right to announce the condition under which he woulld continue his employment. The plaintiff has not alleged facts which would indicate that the decision by Goddard, though perhaps regrettable, was the result of any outside influence, or that any outside influence was intended to result in termination of the contract at will. Appellees have properly relied upon 57 C.J.S. Master and Servant § 630, p. 435, where it is said: "Thus, it has been said that, if persons in the employment of a master consider others in that employment obnoxious, either personally or because of their character or conduct, they have a perfect right to put to their employer the alternative whether he will discharge the obnoxious person or persons and retain their services, or lose them and retain the obnoxious persons." To the same effect, see 30 Am.Jur., Interference, § 33, p. 79. (Note the thorough annotations in 26 A.L.R. 2d 1227.)

The judgment of the superior court sustaining the demurrer is

Affirmed.

MALLARD, C. J., and PARKER, J., concur.