Arie v. Intertherm, Inc., 44743

• Decision Date: 18 January 1983
• Docket Number: No. 44743,44743
• Citation: 648 S.W.2d 142
• Parties: 118 L.R.R.M. (BNA) 3436 Sandra Kay ARIE, Plaintiff-Respondent, v. INTERTHERM, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 142

648 S.W.2d 142

118 L.R.R.M. (BNA) 3436

Sandra Kay ARIE, Plaintiff-Respondent, v.INTERTHERM, INC., Defendant-Appellant.

No. 44743.

Missouri Court of Appeals,

Eastern District,

Division Five.

Jan. 18, 1983.

Motion for Rehearing/Transfer to

Supreme Court Denied March 17, 1983.

Application to Transfer Denied

April 26, 1983.

Thomas M. Hanna, St. Louis, for defendant-appellant.

Richard S. McConnell, Jr., St. Louis, for plaintiff-respondent.

KELLY, Presiding Judge.

Intertherm, Inc., appeals from a judgment of the Circuit Court of the City of St. Louis for Sandra Kay Arie, plaintiff-respondent, following a jury verdict awarding Mrs. Arie $7,500.00 actual damages and $17,500.00 punitive damages on Count I of her petition for wrongfully discharging Mrs. Arie from employment with defendant-appellant for exercising rights under the Missouri Workers' Compensation Law, and $1.00 actual damages and $15,000.00 punitive damages on Count II of her petition for furnishing her a service letter which intentionally, falsely, and wrongfully stated the reasons why her employment with defendant-appellant was terminated.

On appeal Intertherm (as appellant shall hereinafter be identified) presents 11 Points Relied On as grounds for reversal of the judgment and remand to the trial court with instruction to enter judgment on its behalf on each Count of Mrs. Arie's (as respondent shall hereinafter be identified) petition.Two of these are directed at whether Mrs. Arie made a submissible case on either Count; one on whether she made a submissible case as to punitive damages on either Count; five are directed to rulings of the trial court on the admissibility or exclusion of evidence during the course of the trial; two contend error by Mrs. Arie's counsel during argument; and one contends that the trial court erred in overruling Intertherm's motion for directed verdict on Count II of Mrs. Arie's petition because the Missouri Service Letter Statute is unconstitutional.

Inasmuch as Intertherm challenges the submissibility of the cases on both Counts of the petition we shall relate in some detail the pleadings and evidence supportive of the jury's verdict, giving Mrs. Arie the benefit of any and all reasonable inferences to be drawn from the evidence which is not in conflict with her theory of the case and disregarding Intertherm's evidence unless it aids Mrs. Arie's case.Kaelin v. Nuelle, 537 S.W.2d 226, 232(Mo.App.1976).

Count I of Mrs. Arie's petition alleges, Intertherm's Corporate organization and that on or about April 24, 1978, while an employee of Intertherm and acting within the scope of her employment she sustained an injury for which she exercised her rights under the "Missouri Workmen's (sic) Compensation Law" by consulting Intertherm's physician and remaining off of work pursuant to the advice of said physician, and subsequently filed a claim under the aforesaid law.That, contrary to § 287.780 Mo.R.S., Intertherm, on May 10, 1978, wrongfully and intentionally discharged her for exercising her rights under the Compensation Act; that as a result of her wrongful discharge she sustained a loss of income in an approximate amount of $6,000.00 and would continue to lose income in the future.She prayed judgment against Intertherm in the amount of $15,000.00 actual damages and $1,000,000.00 punitive damages and her costs.

Count II of Mrs. Arie's petition realleged Intertherm's corporate capacity, and alleged further that while a production employee of Intertherm and while so engaged in such work and within the scope of her employment she sustained an injury on or about April 24, 1978, which caused her to remain away from work until approximately mid August, 1978.That on or about May 10, 1978, Intertherm discharged her and pursuant to § 290.140 RSMo. she, on or about June 13, 1978, requested a service letter; that on or about June 30, 1978, Intertherm furnished her a service letter wherein it was stated, "You were terminated May 10, 1978, as having voluntarily quit, because as a temporary employee you did not qualify for a leave of absence."She further alleged that the reasons given for termination of her employment were intentionally false and wrongful because Intertherm's published policy was at all times mentioned in the petition that after a 90 day probationary period all production employees were placed on the permanent seniority list as of the date of original employment; that she had been in Intertherm's employment more than 90 days when she sustained her injury, and was damaged as a result of the false and wrongful reply of Intertherm to her request for a service letter.She prayed judgment for $15,000.00 actual damages and $1,000,000.00 punitive damages plus her costs on this Count.

Intertherm filed an Answer, which, as later amended, admitted as to Count I of Mrs. Arie's petition its corporate existence but denied all other allegations therein.As to Count II, it admitted its corporate existence, Mrs. Arie's request for a service letter, and that its reply to said request was as alleged in paragraph 5 of Mrs. Arie's petition.¹It also denied all of the other allegations in Count II of the petition.

Subsequently but prior to trial, Intertherm amended its previously filed Answer by setting up defenses to each Count of the Arie's petition.As to Count I it alleged a discharge and release and as to Count II it challenged the constitutionality of § 290.140 RSMo.1978.

With the pleadings in this status the cause came on for trial and from the evidence we conclude the jury could have found that Mrs. Arie made application for "Full Time" employment as a "Factory" worker with Intertherm, on or about September 12, 1977.At that time she was an unskilled worker with a high school education and a previous employment record over a period of slightly more than seven years being that of bartender or waitress in three different restaurants.

Intertherm manufactures, markets and distributes heating and cooling systems for commercial and residential buildings and its work is seasonal in nature so that its peak demand for employees is during the winter and summer seasons, and, in those seasons of the year when demands for its product are down, it has found it necessary to lay off numerous employees.The company had experienced periods where it would hire as many as a hundred employees only to have to lay them off for lack of work a month later; a practice which hurt personnel and labor relations.To avoid this problem, Intertherm between 1976 and 1980, hired all but skilled workers on a six month basis, making them permanent employees thereafter if there was a job available for them and if the job performance was satisfactory.

Despite this practice of hiring these employees on a six month basis, Intertherm's Director of Personnel and Employee Relations, Robert C. Long, compiled a handbook entitled "Temporary Employee Handbook" addressed "To: New Intertherm Employees" wherein it is stated that the first 90 days of employment with Intertherm was a probationary period; that this was a period for demonstrating basic ability to perform the job for which one was hired; that during this period evaluation forms would be sent to the employee's immediate supervisor every 30 days and he, in turn, would score them according to the employee's performance to that date, and if he judged the employee's necessary skills to be lacking, termination could result.It further stated that all production employees who, at the end of 90 days, met shop requirements through their own abilities would be placed on the permanent seniority list as of the original date of employment.

Mr. Long testified that this Handbook, titled "Temporary Employee Handbook," was a temporary handbook directed to new Intertherm employees.No section of the Handbook, other than the section on holidays, specifically limits its contents to any particular class of employees, temporary or permanent.According to Donald McClure, Intertherm's Manager, Employee Relations, and Safety Coordinator, this Handbook was not distributed to temporary employees.

There were two cover letters on the Handbook dated December 7, 1977, directed to "New Intertherm Employees" cautioning them that many changes were occurring at Intertherm and some of these changes affected the information and rules that new employees needed to know; that a new handbook was needed but Intertherm had been unable to get it done and this temporary Handbook was being provided and new employees were encouraged to read and become familiar with it; although not everything in it was completely accurate.The cover letter further advised the employee that if he or she was confused by what was said in the Handbook or had a question, they should ask their supervisor to explain it to them so they'd be sure they understood.It stated further that those in the Personnel Department were going to try to get a permanent handbook out to all the employees as soon as it could.

Mrs. Arie was interviewed by Mr. McClure on January 16, 1978.She testified that during this interview Mr. McClure advised her she would be a temporary employee for 90 days, a trial period, and thereafter she would have the rights of a "full", or "full-fledged employee of Intertherm."She also testified that Mr. McClure gave her the Temporary Employee Handbook when she was hired at the time of the interview, told her these were the rules and regulations of Intertherm and to read it over.She further testified that she signed an employment agreement without reading it after Mr. McClure told her that it contained "just things that we have discussed in our interview today."She explained that she would have signed anything at that time because she needed a job desparately and she had faith in the man she was going to work for, that he was telling her the truth, and that they'd discussed the documents that she was about to sign in their interview.

This...