Ackerman v. Thompson

• Decision Date: 12 May 1947
• Docket Number: 40052
• Citation: Ackerman v. Thompson, 202 S.W.2d 795, 356 Mo. 558 (Mo. 1947)
• Parties: William Ackerman v. Frank A. Thompson, Trustee of the St. Louis-San Francisco Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

202 S.W.2d 795

356 Mo. 558

William Ackerman v. Frank A. Thompson, Trustee of the St. Louis-San Francisco Railway Company, a Corporation, Appellant

No. 40052

Supreme Court of Missouri

May 12, 1947

Rehearing Denied June 9, 1947.

Appeal from Jackson Circuit Court; Hon. Thos. J. Seahorn Judge.

Affirmed.

M G. Roberts, E. G. Nahler, Thos. E. Deacy and Milligan, Kimberly & Deacy for appellant.

(1) There was no legal duty or obligation on the part of defendant or his predecessor trustees in bankruptcy under Section 5064, R.S. 1939, to give to the plaintiff a service letter because said section by its express terms applies only to corporations doing business in this state, and the same is not applicable to trustees in bankruptcy because they are not a corporation, or agents or representatives of a corporation, within the meaning of the statute, and any failure on their part to give a service letter would not constitute any violation of said statute. Plaintiff did not plead or offer any facts showing that said statute was applicable or that defendant or his predecessor trustees in bankruptcy were under any duty to give plaintiff a service letter by reason thereof. State ex rel. Kurn v. Wright, 349 Mo. 1182, 164 S.W.2d 300; Lyons v. St. Joseph Belt Ry. Co., 84 S.W.2d 933; Soule v. St. Joseph Ry. Light, Heat & Power Co., 220 Mo.App. 497, 274 S.W. 517; Lynch v. M.-K.-T. Ry. Co., 333 Mo. 89, 61 S.W.2d 918; Cummings v. Kansas City Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920; Julian v. Kansas City Star, 209 Mo. 35, 107 S.W.2d 496; Schneider v. Schneider, 146 S.W.2d 584, 347 Mo. 102; Forest City Mfg. v. International L.G.W. Union, 111 S.W.2d 934, 233 Mo.App. 935; Memphis & C.R. Co. v. Hoechner, 67 F. 656; North Kansas City Bridge & Road Co. v. Lenness, 82 F.2d 9; State ex rel. Thompson v. Truman, 319 Mo. 423, 4 S.W.2d 433; United States v. Powell, 95 F.2d 752; United States v. Nixon, 235 U.S. 231, 35 S.Ct. 49; Cheek v. Prudential Ins. Co., 192 S.W.2d 387; Cheek v. Prudential Ins. Co. of America, 223 S.W. 754; Prudential Ins. Co. v. Cheek, 259 U.S. 530, 42 S.Ct. 516, 66 L.Ed. 1044. (2) The evidence failed to establish that the District Court of the United States for the Eastern District of Missouri in which the reorganization proceedings involving St. Louis-San Francisco Railway Company were pending had ever consented to the filing or prosecution in the Circuit Court of Jackson County, Missouri, of plaintiff's suit and said suit could not be maintained in said court without the consent and permission of said Federal Court because it had sole and exclusive direction, control and jurisdiction over the trustees in bankruptcy and this defendant and said trustees were operating the properties of said railroad company under the sole direction and control of said Federal Court. Title 11, U.S.C.A., sec. 205; Haag v. Ward, 89 Mo.App. 274; Smith v. St. Louis-S.F. Ry. Co., 141 Mo. 391; Ex parte Baldwin, 291 U.S. 610, 54 S.Ct. 551, 78 L.Ed. 1020; Vanausdall v. Schorr, 168 S.W.2d 110; Armour & Co. v. Alton R. Co., 27 F.Supp. 625, 11 F.2d 913, 313 U.S. 195, 61 S.Ct. 498. (3) Plaintiff's petition fails to state a claim upon which relief can be granted and states no cause of action against this defendant for the reason that it is not alleged that plaintiff ever demanded a service letter from this defendant or his predecessor trustees, Kurn and Lonsdale, who were the original defendants in this cause. The statute involved is penal and it was incumbent upon plaintiff to both allege and prove that he was within its terms in order to recover. Chrisman v. Terminal Ry. Assn. of St. Louis, 157 S.W.2d 230. (4) Plaintiff's evidence failed to establish that he was ever in the employ of Messrs. Kurn and Lonsdale, the original defendants herein, or of the present defendant, or that he had been continuously employed by the original defendants and trustees herein for a period of 90 days immediately preceding his discharge on July 8. Barrows v. Riss & Co., 179 S.W.2d 473; Chrisman v. Terminal Railroad Assn. of St. Louis, 157 S.W.2d 230, Certiorari denied 169 S.W.2d 328. (5) Plaintiff's evidence failed to establish that he had ever made a request or demand for a service letter upon the original defendants in this cause and upon the person who performed the duty of a superintendent or manager as to the work or department in which plaintiff was engaged. Chrisman v. Terminal Railroad Assn. of St. Louis, 157 S.W.2d 230. (6) The court erred in admitting incompetent, immaterial and irrelevant evidence offered by the plaintiff and over the objections and exceptions of the defendant. Hughes v. Prudential Ins. Co., 179 S.W.2d 630; Commercial Inv. Co. v. Citizens State Bank, 54 S.W.2d 424; Poor v. Poor, 167 S.W.2d 471; Petrovic v. Standard Fire Ins. Co., 167 S.W.2d 412; Bello v. Stuever, 44 S.W.2d 619; McKelvey v. Marquette Iron & Steel Co., 24 S.W.2d 702; State v. Hostetter, 126 S.W.2d 1173. (7) The court erred in giving to the jury plaintiff's Instruction No. 1, over the objection and exception of the defendant, and in overruling defendant's specific objections thereto. Barrows v. Riss & Co., Inc., 179 S.W.2d 473; In re Neff, 157 F. 57; In re Catts, 33 F.2d 693, affirmed 35 F.2d 1018, certiorari denied 50 S.Ct. 86, 280 U.S. 605, 74 L.Ed. 649, 46 A.L.R. 1171. (8) The court erred in giving plaintiff's Instruction 2, over the objection and exception of the defendant, and in overruling defendant's specific objection thereto. Said instruction did not state a proper measure of damages, either actual or punitive and there was no evidence of actual damages and no submissible evidence of actual malice. Cook v. Midcontinent Petroleum Corp., 193 S.W.2d 66; United States v. Nixon, 235 U.S. 237, 35 S.Ct. 49; Van Sickle v. Katz Drug Co., 151 S.W.2d 489; Patton v. Carder Wholesale Grocery Co., 150 S.W.2d 1096; United Factories v. Brigham, 117 S.W.2d 662; Culver v. Kurn, 193 S.W.2d 602; Pinkley v. Rombauer, 87 S.W.2d 1045; State ex rel. United Factories, Inc., v. Hostetter, 126 S.W.2d 1173; Restatement of the Law -- sec. 909, chap. 47, pp. 557-558; Restatement of the Law -- sec. 908, chap. 57, p. 554; Howellette v. George, 9 So. 85; Evans v. Gibson, 3 P.2d 389; Marvante v. Hein, 67 P.2d 689. (9) The court erred in giving plaintiff's Instruction 3, over the objection and exception of the defendant, and in overruling defendant's objections thereto. Said instruction constituted an improper comment on the evidence, tended to mislead and confuse the jury, and unlawfully charged the jury not to consider the evidence referred to in said instruction in arriving at a verdict and unlawfully deprived the defendant of the benefit of said evidence (which was material to the defense) together with the inferencs to be drawn therefrom. Allen v. American Life & Accident Ins. Co., 83 S.W.2d 192; Scanlon v. Kansas City, 28 S.W.2d 84; Bouligny v. Metropolitan Life Ins. Co., 133 S.W.2d 1094; Fortner v. Kelly, 60 S.W.2d 642; Gettys v. American Car & Foundry Co., 16 S.W.2d 85, 332 Mo. 787; Billingsley v. Kansas City Pub. Serv. Co., 191 S.W.2d 331; Utterback v. New York Life Ins. Co., 191 S.W.2d 421. (10) The court erred in refusing to give defendant's Instruction E. Under the law and the evidence plaintiff in no event was entitled to recover more than nominal damages. Soule v. St. Joseph Railway, L.H. & P. Co., 274 S.W. 517, 220 Mo.App. 497; Cook v. Midcontinent Pet. Corp., 193 S.W.2d 66. (11) The verdict of the jury, both as to actual and punitive damages, was and is excessive. Stephens v. Lever Bros. Co., 155 S.W.2d 540.

Ira B. Burns and Dwight Roberts for respondent.

(1) There was a legal duty or obligation on the part of the defendant and his predecessor trustees to give the plaintiff a service letter and the statute applies. State ex rel Kurn v. Wright, 164 S.W.2d 300, 349 Mo. 1182; McNulta v. Lochridge, 12 S.Ct. 11, 141 U.S. 327; Sec. 124, Title 28, U.S.C.A.; Fullerton v. Fordyce, 25 S.W. 587, 121 Mo. 1; Farrell v. Union Trust Co., 77 Mo. 475. (2) The evidence does show that the plaintiff had a right to file and prosecute this suit without the consent and permission of the federal court and further it is not necessary under these proceedings to secure the specific consent of the federal court. Sec. 125, Title 28, U.S.C.A.; Snow v. Thompson, 178 S.W.2d 796; McNulta v. Lochridge, 141 U.S. 327, 12 S.Ct. 11; Texas, etc., Railroad Co. v. Johnson, 151 U.S. 81, 14 S.Ct. 250; Moran v. Sturges, 154 U.S. 256, 14 S.Ct. 1019; State ex rel. Kurn v. Wright, 164 S.W.2d 300, 349 Mo. 1182; Barber v. Powell, 135 F.2d 728. (3) Plaintiff's petition does state a cause of action. Sec. 124, Title 28, U.S.C.A.; McNulta v. Lochridge, 12 S.Ct. 11, 141 U.S. 327; Snow v. Thompson, 178 S.W.2d 796. (4) Plaintiff's evidence establishes that he was in the employ of the defendant's predecessors and the Frisco Railway Company for the required length of time prior to demanding his service letter after his discharge July 8, 1935. The issue was submitted to the jury in instruction No. 1 and the jury so found from the evidence. Fidelity & Deposit Co. v. Grand Natl. Bank, 69 F.2d 177; Long v. McDow, 87 Mo. 197; Sebastian County Coal & Mining Co. v. Mayer, 274 S.W. 770, 310 Mo. 104. (5) Plaintiff's evidence established that he made request or demand for a service letter upon the proper employees of the defendant and his predecessors. Lyons v. St. Joseph Belt Ry. Co., 84 S.W.2d 933, 232 Mo.App. 575. (6) The court did not err in admitting incompetent, immaterial, irrelevant and hearsay evidence on behalf of the plaintiff. Schulz v. St. Louis-S.F. Ry. Co., 4 S.W.2d 762, 319 Mo. 8; Looff v. K.C. Rys. Co., 246 S.W. 578; State ex rel. v. Young, 23 S.W.2d l.c. 133, 324 Mo. 277; Twedell v. Treasure, 44 S.W.2d l.c. 228; Monahan v. K.C. Clay & Coal Co., 58 Mo.App. l.c. 75; ...