Potter v. Milbank Mfg. Co.

Decision Date11 December 1972
Docket NumberNo. 1,No. 55615,55615,1
Parties82 L.R.R.M. (BNA) 3197 Edsel POTTER, Respondent, v. MILBANK MANUFACTURING COMPANY, a Corporation, Appellant
CourtMissouri Supreme Court

Walter R. Simpson, Robert Ernest Gould, Kansas City, for respondent; Sheridan, Sanders, Carr & White, Kansas City, of counsel.

George M. Winger, H. Fred Northcraft, Kansas City, for appellant; Smith, Schwegler, Swartzman & Winger, Kansas City, of counsel.

HIGGINS, Commissioner.

Action for actual and punitive damages for libel, Count I; for failure to comply with the service letter statute, Section 290.140, V.A.M.S., Count II; and for slander, Count III. A verdict was directed for defendant on Count I; plaintiff had a verdict for $1.00 actual and $20,000 punitive damages on Count II, and for $1.00 actual and $5,000 punitive damages on Count III. Judgment was rendered accordingly, and defendant seeks to be relieved of the judgment of $25,002.

Count II of plaintiff's petition alleged: that plaintiff was employed by defendant from October 26, 1966, to February 14, 1968, when defendant arbitrarily discharged him; that plaintiff requested defendant to furnish him a service letter stating his length of employment, the true nature and quality of his work, and the true cause of his discharge; that in response to plaintiff's request defendant provided the following letter:

'Mr. Edsel Potter

'717 Ditman

'Kansas City, Missouri

'Dear Mr. Potter:

'RE: Request For Service Letter

'Receipt of your request for a service letter dated February 27, 1968 and received in our office on March 1, 1968 is hereby acknowledged.

'You were employed as a punch press operator by Milbank Manufacturing Company on October 26, 1966. You were later transferred, pursuant to your request, to sheetmetal worker Class A, and your employment was terminated by discharge on February 15, 1968. By letter dated February 2, 1968, a copy of which is enclosed herewith and incorporated by reference herein, the Company forwarded to you copies of its letters dated January 29, 1968 and January 30, 1968 to the United Steelworkers of America, the Union representing the employees in the plant, confirming the Union's agreement with the Company that an increment in your wage rate should be withheld.

"for the reason that this employee is not satisfactorily and efficiently performing his work. This man is an exceptionally slow worker with many errors occurring which are adding to the production costs of products made within his department. As we discussed, this employee is also argumentative to all supervisors which prohibits us from giving additional instruction.

Written and oral warnings have been issued to Potter by the Company on these matters.'

'It was agreed between the Company and the Union, as recited in the above letter, that until February 14, 1968 you would be given 'an opportunity to make a substantial improvement before his progress is re-evaluated and a final determination made.'

'At the end of the period set forth above, the Company made a final determination that your employment performance during the period in question did not vary materially from that described above and, accordingly, it discharged you.

'Yours very truly,

'MILBANK MANUFACTURING COMPANY, INC.

's/E. L. Harle, Plant Superintendent';

that said letter did not comply with section 290.140 in that defendant did not state the true nature and quality of services rendered by plaintiff nor did it truly state the cause of discharge; that, contrary to the letter, plaintiff was diligent and efficient, performing a satisfactory job with at least average speed and mistakes, and was not argumentative but was receptive to constructive criticism and suggestions; that, contrary to the letter, plaintiff was discharged for one or more or all of the following reasons: personality conflict with defendant's lead man due to no fault of plaintiff, lead man was desirous of plaintiff's job, personality conflict with defendant's foreman due to no fault of plaintiff, plaintiff became active in the union in an attempt to build a stronger local which defendant did not desire; that as a result of the false letter plaintiff was damaged; that defendant's acts were malicious. The prayer was for $30,000 actual and $25,000 punitive damages.

Count III alleged: that defendant's plant superintendent, E. L. Harle, in the presence of two employees of the Jackson County, Juvenile Court adoption department, and other employees at the plant, wantonly and maliciously spoke false, defamatory words, 'that plaintiff was unable to perform his job and was not efficient and was constantly seeking out his supervisors for further direction which cut down on performance and output. That plaintiff did not get along with other employees. That plaintiff was a union radical. That plaintiff could not turn out good work. That plaintiff was highly irritable and that plaintiff was an insecure person'; that, as a result, plaintiff was damaged; that the slanderous statements were made wilfully and maliciously. The prayer was for $30,000 actual and $25,000 punitive damages.

Defendant's answer asserted that the service letter contained statements which it believed in good faith to be true, and that the statements made to the juvenile court workers were qualifiedly privileged.

Appellant contends on the sufficiency of plaintiff's case: I. There was no evidence to establish that the service letter did not state the true cause of plaintiff's discharge; II. There was no evidence to establish that statements made to juvenile court personnel were not true and, if made, were qualifiedly privileged; III. There was no evidence to support Instruction No. 7 on punitive damages for wrongful failure to issue a proper service letter; IV. There was no evidence of malice to justify submission by Instruction No. 12 of punitive damages for slander.

The following facts appear from the evidence favorable to plaintiff: Milbank Manufacturing Company of Kansas City, Missouri, makes meter boxes for electrical installations and has a net worth of $2,396,481. Edsel Potter, born August 15, 1919, worked for Milbank from October 26, 1966, to April 1967, as a punch press operator, and from April, 1967, to February 15, 1968, in the specialty department as a sheet metalworker Class A. He had previously been employed for sixteen years by Koch Refrigerator Company as an assembler. He had also had experience as a sheet metalworker with Make-All, an assembler with Benson, and as a punch press operator with Rival. At the time of employment with Milbank he was known to be physically handicapped by a crippled leg.

T. O. Malone, plaintiff's foreman in the punch press department, described his work there as an exceptional job and he had no complaints about his work in that department. Plaintiff's transfer to the specialty department in April, 1967, came pursuant to a 'bid' for such position and was accompanied by a pay increase. Plaintiff's work in the specialty department was the same as in the punch press department except that press operators in the specialty department read drawings and set their own dies and gauges.

Plaintiff was paid by the hour and had no piecework quotas. He received regularly scheduled wage increases until January 17, 1968, when an increase due that date was withheld. He was discharged February 15, 1968. Following his discharge, plaintiff made written request for a service letter and received the letter described in connection with the petition.

Prior to his discharge, and in October, 1967, plaintiff was elected plant union steward and, in that capacity, handled grievances against defendant for fellow employees until his discharge. During his stewardship a new union contract was under negotiation and he was consulted with respect to the contract by fellow employees. Upon complaints from fellow employees that the president and local union committee were failing to process grievances, plaintiff involved himself in an attempt to remove the local president, and the dispute was carried by plaintiff to the National Labor Relations Board.

Max L. Alexander, a fellow employee of plaintiff, was told by Norman Sams, lead man over plaintiff, that 'he was going to go over and agitate Potter or try to cause trouble so he would either quit or get him fired.' This occurred on several occasions after plaintiff began his union stewardship.

Also, during plaintiff's union stewardship, Mr. Malone requested John Mader, a fellow employee without any responsibility for plaintiff's work, to write a letter detailing any unacceptable aspects of plaintiff's work. Mr. Malone did not tell Mr. Mader why he wanted the letter, or that it would be placed in plaintiff's personnel file. Mr. Malone represented the letter would be kept confidential. After thinking about it for a week, Mr. Mader wrote the requested letter November 5, 1967, and Mr. Malone placed it in plaintiff's file. In eleven years at Milbank Mr. Mader had never received a similar request.

In his first thirty days in the specialty department, plaintiff was told by his foreman on one occasion that he took too much time to set up his machine and, on another, that he made a mistake. Both instances drew a form warning notice placed in plaintiff's file. Both were to be expected of a new man on the particular job.

There were no further complaints of plaintiff's work until November 15, 1967. On that date, and on December 4, 1967, and January 4, 1968, Mr. Malone placed additional warning notices in plaintiff's file. Plaintiff was not given a copy of any of these notices, and Mr. Malone had never placed a warning notice in any other employee's file without notifying the employee and giving him a copy of the notice.

On January 12, 1968, plaintiff received a written warning notice from Mr. Harle that there was no...

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  • Agriss v. Roadway Exp., Inc.
    • United States
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    ...12, 11 Cal.Rptr. 787 (1961) (defamatory to say of employee that he took papers out of employer's private file); Potter v. Milbank Manufacturing Co., 489 S.W.2d 197 (Mo.1972) (defamatory for plaintiff's employer to publish charge plaintiff was argumentative, irritable, and insecure, and his ......
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    ...to state the true reason for plaintiff's discharge. The burden of proof in a service letter claim is set out in Potter v. Milbank Manufacturing Co., 489 S.W.2d 197, 203 (Mo.1972): "Plaintiff has no burden of proving the true reason for his discharge; his burden is negative in character beca......
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