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Liddle v. Swann

March 10, 1998

LIDDLE, ET AL
v.
SWANN



The opinion of the court was delivered by: King, J

PHIL LIDDLE, PIGGLY WIGGLY, APPELLANTS SUPERMARKET OF COFFEEVILLE, INC., AND PIGGLY WIGGLY MID-SOUTH, INC. v. JOHN SWANN, APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 10/20/95

TRIAL JUDGE: HON. ANDREW CLEVELAND BAKER

COURT FROM WHICH APPEALED: YALOBUSHA COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - TORTS (OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE)

TRIAL COURT DISPOSITION: JURY VERDICT OF $25,000 FOR PLAINTIFF

DISPOSITION AFFIRMED - 3/10/98

ENBANC

Appellee, John Swann, brought an action for wrongful discharge against Phil Liddle, the division manager of Piggly Wiggly Supermarket of Coffeeville; Mike Gunn, the assistant supervisor of Piggly Wiggly of Coffeeville; and Piggly Wiggly Supermarket of Coffeeville in the Circuit Court of Yalobusha County. Pursuant to Swann's motion, ore tenus, Mike Gunn was dismissed as a defendant in the lawsuit. The court entered judgment upon a jury verdict in favor of Swann for $25,000 against Liddle and Piggly Wiggly. Aggrieved, Liddle and Piggly Wiggly appeal the judgment alleging the following assignment of error: Was the trial court in error in refusing to direct a verdict for the defendants, and in refusing the defendants' request for a peremptory instruction that the defendants had no liability to the plaintiff as a matter of law? We affirm the judgment of the circuit court.

FACTS

In August of 1992, John Swann was hired as assistant store manager of the Greenwood Big Star by Mike Gunn. Gunn was employed by Food Giant Management, Inc., a subsidiary of Piggly Wiggly Mid-South, Inc. (PWMS), as a division manager and supervisor of several of the company's regional grocery stores, including the Greenwood Big Star and the Coffeeville Piggly Wiggly (PWC). In November of 1992, Gunn hired Swann as manager of PWC. According to Swann, Gunn promised that he would receive $600 per week and an $8000 bonus at the end of the first year. As store manager, Swann was responsible for the day-to-day operations of the store including financial operations, pricing of merchandise, presentation of merchandise, employee supervision, store security, and store maintenance.

A few weeks after Swann became manager of the PWC, he had Darryl Necaise, Sr. arrested for shop lifting a pack of cigarettes from the store. The case went to trial in early 1993 but was dismissed because the evidence, the cigarettes, was missing. Prior to Swann's termination from PWC, Necaise, Sr. filed a suit against PWC for false arrest, which was settled for $6,000.

In July of 1993, Swann accused Darryl Necaise, Jr. of running him and his two young sons off of a local road. According to Swann, they were driving on the road, when Necaise, Jr. came speeding around their vehicle and caused them to run off of the road. Swann stated that Darryl Necaise, Jr. ran off of the road as he attempted to make a vulgar hand sign to Swann through the rear windshield of his truck. As Darryl Necaise, Jr. regained control of his truck, the tires sprayed Swann's windshield with gravel, which resulted in eight cracks. Swann followed Darryl Necaise, Jr. to a traffic light, got out of his car, and confronted Darryl Necaise, Jr., who was still sitting in his truck. The two exchanged angry words before Darryl Necaise, Jr. reached under his seat and pulled out an automatic pistol. Swann backed off and later swore out a warrant for simple assault against Darryl Necaise, Jr. Necaise was found guilty of assault.

Later that month, Swann attended a food show in Memphis, Tennessee, where he was approached by Mr. Storey, the owner of Piggly Wiggly Mid-South, Inc. (PWMS). Storey told Swann that he had received a telephone call from the Necaises concerning the incident with Darryl Necaise, Jr. Swann gave Storey his account of the assault incident. According to Swann, Storey told him, "I don't blame you, do what you've got to do." Moments later, Swann had a similar conversation with Phil Liddle, who had taken Mike Gunn's place as the North Mississippi Division Manager of Food Giant Management, Inc., a subsidiary of Piggly Wiggly Mid-South, Inc.*fn1 Liddle told Swann that Storey had received a telephone call from the Necaises. Swann informed him that he had just spoken with Storey and had given him his account of the incident. Liddle also told Swann, "I don't blame you, you've just got to do what you've got to do."

On August 3, 1993, Liddle and Gunn met with Swann in the stockroom at PWC. Liddle showed Swann a cassette tape that he claimed contained Swann making an harassing telephone call to the Necaises. Swann denied having made the call and asked to hear the tape. He testified that Liddle and Gunn stated that he would have to have a lawyer there to listen to it. According to Swann, Liddle stated that his conflict with the Necaises had gone too far and that the Necaises were going to sue the store. Swann alleged that Liddle said, "we're going to have to separate ourselves from you." Swann said that he began to cry and asked what had he done. He said Liddle and Gunn stated that it was nothing to do with his work performance, just the Necaise business. They stated that his gross profit was good, his inventory was great, and no one had kept the stockroom as well as he had. However, they said that Necaise was going to sue again and it was best if they were not associated with Swann. Swann was then escorted from the store.

Two days later, Swann went to one of the Greenwood stores owned by PWMS, at Liddle's request. On his way into the store, he passed Gunn and Storey coming out. Swann met with Liddle, who gave him a $3000 bonus check from his employment with PWC. According to Swann, Liddle stated that he had not been terminated, that they planned to bring him to the Greenwood store as an assistant manager and then move him to a new store when it opened in a couple of months. Liddle told Swann that he did not need to be tied up with the Necaise matter because they were suing Piggly Wiggly. He then suggested that Swann needed to drop his complaint against Necaise, Jr.

Swann thought about the suggestion for a couple of days but called Liddle and declined to do so. Swann testified that Liddle could not understand why he would not drop the complaint against Darryl Necaise, Jr. and inquired what he expected to get from it. Swann indicated that he could not forget about the compliant because Darryl Necaise, Jr. had pulled ...


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