
    Ex parte KIMBERLY-CLARK CORPORATION and Doug Wesson. (In re Gill C. McKINNEY and Rhonda McKinney v. KIMBERLY-CLARK CORPORATION and Douglas Wesson).
    82-125.
    The Supreme Court of Alabama.
    Sept. 30, 1983.
    Rehearing Denied Dec. 22, 1983.
    Clark Carpenter of Wooten, Boyett, Thornton, Carpenter & O’Brien, Talladega, for petitioners.
    B. Greg Wood of Wood, Hollingsworth & Willis and Jack A. Wallace, Talladega, for respondents.
   ADAMS, Justice.

We granted the petition for writ of cer-tiorari in this case to consider the following issue:

Did the circuit court err in granting the motion in limine which prevented plaintiff from introducing evidence of loss of wages as one element of damages in his malicious prosecution action?

The Court of Civil Appeals found error regarding this issue. After careful consideration, we affirm that court’s decision.

The facts of the case are set out in the opinion of the Court of Civil Appeals. We see no need to repeat them, but proceed directly to a discussion of the issue. The petitioners, Kimberly-Clark and Doug Wesson, argue that they are protected from liability for damages resulting from the loss of Gill McKinney’s job because he was an employee at will, and, thus, could have his employment terminated at any time for any reason. They note that this means a good reason, a wrong reason, or no reason. See Martin v. Tapley, 360 So.2d 708 (Ala. 1978); Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977). Petitioners argue that because Kimberly-Clark could terminate McKinney’s contract for any or no reason, the evidence of such termination is irrelevant in a malicious prosecution action in which Kimberly-Clark is a defendant.

The problem with this argument, as pointed out by the court below, is that this is not an action for wrongful termination of employment, but one for malicious prosecution. The jury found that the petitioners had maliciously prosecuted McKinney. Kimberly-Clark stipulated that Wesson had been acting as its agent in instituting criminal proceedings against McKinney. While it is clear from the cases referred to above, as well as numerous other Alabama cases, that Kimberly-Clark had a legal right to terminate McKinney’s employment, it had no such right to maliciously prosecute him through its agent.

We agree with the Court of Civil Appeals that loss of employment may be an element of damages in a malicious prosecution case. In addition to the authorities referred to by that court, we note that Prosser states the general rule that the plaintiff in a malicious prosecution case may recover “for any specific financial loss, such as the loss of present or prospective employment, which can be proved with reasonable certainty to have been caused by the prosecution, provided that it is regarded as a foreseeable, or normal, consequence of the criminal proceeding.” W. Prosser, Handbook of the Law of Torts § 119 (4th ed. 1971).

Although Alabama law gives an employer the legal right to maliciously terminate the employment of an employee at will, we decline to extend that right so as to allow the employer also to maliciously prosecute such an employee without being liable for all the elements of damages allowed in any other malicious prosecution case. Therefore, we hold that the plaintiff in a malicious prosecution case against the plaintiff’s employer should be allowed to introduce evidence that his or her loss of employment was caused by the malicious prosecution, and that it was a forseeable, normal or natural consequence thereof. Of course, the plaintiff must also prove the damages resulting from the termination.

For the foregoing reasons, we affirm the judgment of the Court of Civil Appeals, 449 So.2d 790.

AFFIRMED.

FAULKNER, JONES, SHORES and EM-BRY, JJ., concur.

TORBERT, C.J., concurs specially.

MADDOX, ALMON and BEATTY, JJ., dissent.

TORBERT, Chief Justice

(concurring specially).

I concur specially in order to draw attention to the unusual facts in this case and the evidentiary difficulties inherent in plaintiff’s theory of recovery for loss of employment.

An employer can discharge an employee, hired under a contract at will, for any reason, including a malicious one, and the employee cannot recover for wrongful termination of employment. See, e.g,, Hinrichs v. Tranquilaire Hosp., 352 So.2d 1130 (Ala.1977). Yet, loss of employment can constitute an element of damage in a malicious prosecution claim. See Restatement (Second) of Torts § 671 (1965). See generally C. Gamble & D. Corley, Alabama Law of Damages §§ 36-39 (1982).

This case is confusing because it does not involve the usual facts which give rise to a malicious prosecution action. Typically, A maliciously prosecutes B. As a result, B’s employer, company C, discharges him. In the subsequent suit by B against A, B may recover for his loss of employment with C. In the present action, Kimberly-Clark Corporation is both the employer and the malicious prosecutor. This factual twist appears to create a conflict between these doctrines. If plaintiff is permitted to recover against Kimberly-Clark, we would appear to be approving an exception to the rule that an employee at will cannot recover for wrongful termination. By the same token, if plaintiff is not allowed to recover employment damages, then we would be denying him just compensation merely to prevent the appearance of conflict with the employee termination doctrine.

The solution to this dilemma is to consider whether plaintiff, in this case, can prove that his loss of employment was caused by Kimberly-Clark’s malicious prosecution. Although the facts which gave rise to criminal charges were the same as those which led to plaintiff’s termination, the actual filing of criminal charges (the gravamen of the malicious prosecution action) probably did not cause plaintiff’s termination. In virtually every case where the employer and malicious prosecutor are the same, the employee will be unable to prove that his termination was caused by the filing of criminal charges. It seems unlikely that a company would file criminal charges against an employee and still retain his services.

Although plaintiff probably cannot demonstrate in this action that the prosecution caused his termination, the loss of employment is a proper element of damage in a malicious prosecution case. Since plaintiff was not given an opportunity to present evidence aimed at proving that the malicious prosecution caused his loss of employment, I concur in remanding this case to the trial court for further proceedings.

BEATTY, Justice

(dissenting):

The majority’s decision represents the beginning of the end for the contract at will. The result here is a curious one. The majority recognizes that an employee hired under a contract at will may be terminated by the employer for any reason. It then proceeds to conclude that somehow a malicious prosecution form of action against the employer imposes a legal responsibility on that employer to pay the “lost wages” to the discharged employee. In other words, the form of action selected somehow allows the employee at will to recover wages which the employee clearly could not have earned simply because he had been discharged by an employer who had the legal right to terminate his employment for any reason.

Until this decision, under a contract at will an employer could discharge an employee for any reason, even a malicious reason. Bender Ship Repair, Inc. v. Stevens, 379 So.2d 594 (Ala.1980); Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977); Comerford v. International Harvester Co., 235 Ala. 376, 178 So. 894 (1938). That is to say, the employer had the absolute and unequivocal legal right to terminate his obligation to pay wages to that employee. Thereafter, the employer did not owe the employee any wages and, so, no “lost wages” could accrue. And, of course, none could be recovered by an employee who alleged that the employer had maliciously discharged him. There being no “lost wages” to be collected, it follows that none could be made an element of damages in any lawsuit.

The special concurrence attempts to modify the thrust of the majority’s opinion by introducing an element of “proximate cause” so that after the employer “proximately caused” the discharge, he could be required to pay lost wages. This position is as ludicrous as that of the majority. The employer of an employee at will, having exercised his perfectly legal option to stop any commitment for future wages, cannot be required to pay “lost wages” which could never have existed. But, since the majority would require the employer to pay such wages, the majority has simply rewritten the contract for the parties, the consequences being that the contract for employment at will becomes a contract for an employment at term during which fictitious “lost wages” have accrued.

From this, it follows that the contract at will doctrine has, to a serious extent, been abrogated.

MADDOX and ALMON, JJ., concur.  