concurring:
One of the serious problems with “evolving case law,” the so-called pride of the common law about which law professors wax eloquently during orientation for first year law students, is that general law emerges from very specific factual situations. Such was the case in First National Bank, cited in the majority opinion; under the facts described by the majority, sympathy for the discharged employee was inevitable. I was disqualified in First National Bank, and for that reason unable *313to register my disapproval of its creation of a new cause of action; now, however, since its syllabus is again quoted I would register my dissent to the general rule of law enunciated in First National Bank in the context of the case before us.
It is important for judges to recognize that the primary effect of the courts is not upon the cases which they decide, but rather upon the cases which they do not decide. As I pointed out in my dissent to Mandolidis v. Elkins Industries, Inc., _ W.Va. _, 246 S.E.2d 907 (1978), the existence of a narrow cause of action for egregious conduct frequently distorts relations between people because it creates an invitation to nuisance suits. When we say that a will and pleasure employee can be fired for any reason EXCEPT that he refused to follow orders to violate the law, then every discontented employee is invited to find some reason why his termination was predicated on his resistance to illegal action. While it may be just in the grand scheme of things to protect employees who urge their employers to be honest, it is unjust to the economic system to foster nuisance suits which will undermine efficiency, raise costs, and destroy morale by leaving inferior employees in place because employers fear litigation.
Judges must be circumspect about the long run effects of general rules on the actions of people outside the litigation process. A free enterprise, private sector economy is predicated upon there being winners and losers in the competitive process. Successful competition on the part of one person or firm generally results in unsuccessful competition on the part of another person or firm. Discharge is always a most unpleasant experience regardless of its reasons and in general it engenders bitterness. The injustice to employers by encouraging frivolous litigation outweighs any justice to the very rare employee who is discharged for his honesty. Consequently, since a will and pleasure employee in the private sector has no common law right to his job I would not create a common law exception to the general rule.