Janet Tidwell v. Holston Methodist Federal Credit Union

<bold>1. Pleadings — 12(b)(6) motion to dismiss — consideration of documents</bold> <bold>not attached to complaint — motion not converted to summary judgment</bold> <block_quote> A motion to dismiss for failure to state a claim was not converted into a motion for summary judgment where the court considered documents not attached to the complaint. Those documents were referred to in the complaint and formed the procedural basis for the complaint.</block_quote><page_number>Page 253</page_number> <bold>2. Employer and Employee — retaliatory discharge — time limit for claim</bold> <block_quote> The 180-day time limit for filing a Retaliatory Employment Discrimination Act claim with the North Carolina Department of Labor is mandatory even though there is no express statutory consequence for failing to file within the time limit.</block_quote> <bold>3. Statutes of Limitations and Repose — retaliatory discharge —</bold> <bold>time limits for filing</bold> <block_quote> There is no merit in the argument that the 3-year limitations period of N.C.G.S. § <cross_reference>1-52</cross_reference> should control the 180-day filing limit of the Retaliatory Employment Discrimination Act.</block_quote> <bold>4. Employer and Employee — retaliatory discharge — motion to amend —</bold> <bold>additional claim — responsive pleading not filed — futile motion</bold> <block_quote> The trial court properly denied plaintiff's motion to amend his complaint to assert an additional claim under the Retaliatory Employment Discrimination Act based on an alleged post-complaint incident of discrimination where the original claim was time-barred and plaintiff failed to file his additional claim with the N.C. Department of Labor before seeking to add it to his complaint so that allowance of the amendment would have been futile.</block_quote> <bold>5. Employer and Employee; Workers' Compensation — wrongful discharge —</bold> <bold>assertion of workers' compensation rights — amen

<p>Appeal from St. Charles Circuit Court. — Eon. J. B. Barnett, Judge.</p> <p>(1) Defendant’s plea to the jurisdiction of the trial court should have been sustained. The construction placed upon the Missouri statutes by the lower court renders them unconstitutional and void in denying’ to the defendant the equal protection of the laws. County v. Railroad, 118 IT. S. 394; Railroad v. Ellis, 165 IT. S. 150; State v. Ashbrook, 154 Mo. 375; State v. Railroad, 195 Mo. 288; State v. Loomis, 115 Mo. 307; Hammond Co. v. Best, 91 Me. 431. (2) Plaintiff’s petition is fatally defective in that it fails to set out enough of the article complained of to enable the court to understand the sense in which the language so set out was used, and the demurrer and motion in arrest should, therefore, have been sustained. Townshend on Libel, sec. 334; Odgers on Libel (4 Ed.), 581; Cartwright v. Wright, 5 B. & A. 615; Rutherford v. Evans, 6 Bingham, 451. There being no matters of “inducement” alleged in the petition — no allegation that plaintiff was in fact either an owner, or a stockholder, or managing officer of the corporation owner — both the petition and the proofs are in this respect fatally defective. Havemeyer V. Puller, 60 How. Prac. 320; Püb. Co. v. Journal Co., 108 Mo. App. 232; Legg v. Dunleavy, 80 Mo. 558; Crystal v. Craig, 80 Mo. 367; McManus v. Jackson, 28 Mo. 56; Bundy v. Hart, 46 Mo. 460; Kenworthy v. Journal Co., 117 Mo. App. 327; Flowers v. Smith, 214 Mo. 132; Hatfield v. Sisson, 59 N. Y. Supp. 73. (3) It was admitted that the “owner” of the Delmar Race Track was a corporation. As a corporation must necessarily act through its officers and agents, this article can only mean that those managing officers and agents of the corporation, who were personally in control of said track about the 22d of June, 1905, were, in the opinion of the Attorney-General, guilty of a felony. As it was admitted that plaintiff was in Europe at that time, this article could not have been libelo

<p>Appeal from St. Louis City Circuit Court. — lion. John A. Talty, Judge.</p> <p>(1) Tbe court below erred in instructing tbe jury to find for plaintiff on tbe issue of libel or no libel, only tbe fact of publication being admitted, tbe jury thus being deprived of tbe power to render a general verdict on that issue of libel or no libel. Art. II, sec, 14, Constitution; Odgers on Slander' and Libel (2 Ed.), p. 468; Bayles v. Lawrence, 11 A. & E. 920; Cox v. Lee, L. R. 4 Excb. 288; Parmiter v. Ooupland, 6 M. & W. 105; Saxby v. Easterbrook, 3 C. P. D. 339; State v. Armstrong, 106 Mo. 395; Arnold v. Jewett, 125 Mo. 241; Cooley on Const. Lim. (6 Ed.), 564; 2 Greenl. on Evid. (15. Ed.), 411; Usher v. Severance, 20 Me. 11; Drake v. State, 20 Atl. Eep. 46; Goodrich v. Davis, 11 Met. (Mass.) 473. (2) A peremptory instruction to find for plaintiff in an action for libel, where only the fact of publication is admitted, is not only violative of the express provision of the Bill of Eights, but in effect makes the practice in libel cases what it was in England under Lord Mansfield, when it was found necessary to enact the Fox Libel Act in 1792. See argument of Thos. Erskin in Dean of St. Asaph’s case. Also argument of Hamilton and opinion of Kent, J., in People v. Oroswell, 3 Johnson’s cases, 337. State v. Allen, 1 McCord (S. C.), 626; State v. Syphrett, 27 S. C. 29; Drake v. State, 20 Atl. Eep. 746; Cooley on Const. Lim. (6 Ed.) 564-567; Shattuck v. Allen, 4 Gray, 540. The jury find the law in the issue of “libel or no libel,” “under the direction,” but not under the compulsion of the court. Hazy v. 'Waith, 23 Colo. 556; State v. Powell, 66 Mo. App. 598. (3) This error of the court in peremptorily directing a verdict on the issue of libel or no libel was not cured by giving an instruction telling the jury at the same time that they were the judges of that issue. It was simply a case of absolutely contradictory instructions. Stone v. Hunt, 94 Mo. 475; Henchen v. C’Bannon, 56 Mo.