Barrows v. Riss & Co.

• Decision Date: 03 April 1944
• Parties: Jack Barrows, Respondent, v. Riss & Company, Inc., Appellant
• Court: Kansas Court of Appeals

179 S.W.2d 473

238 Mo.App. 334

Jack Barrows, Respondent, v. Riss & Company, Inc., Appellant

Court of Appeals of Missouri, Kansas City

April 3, 1944

Appeal from Jackson Circuit Court; Hon. Allen C. Southern, Judge.

Reversed.

M D. Campbell, Jr. for appellant.

(1) The court erred in refusing appellant's requested Instruction No. 1 in the nature of a demurrer to the evidence offered at the close of all the evidence. Sec. 5064, R. S. Mo. 1939, is a penal statute and will be strictly construed. Lyons v St. Joseph Belt Ry. Co., 84 S.W.2d 933. Respondent was not entitled to a service letter because at the time of dismissal June 26, 1940, he had not been in the service of appellant "for a period of at least ninety days" within the meaning of that phrase as said in Section 5064. The construction of the statute here contended for, seems to have been the construction in the mind of the writer of the opinion, in the case of Chrisman and Terminal R. Assn. of St Louis, 157 S.W.2d 230, 231, when he used the expression "for more than ninety days next prior." (2) The verdict for actual damages in the amount of $ 450 is excessive. There was evidence that appellant after his discharge on June 26, sought employment of various persons but there is no evidence any of said persons desired to engage him or were in need of his service nor that they declined to employ him because he did not have a service letter. To say respondent's failure to obtain employment was the direct result of the absence of a service letter is to guess and speculate, and this a Court will not allow a jury to do. Doll v. Purple Shoppe, 90 S.W.2d 181, 186, and cases therein cited. Respondent having failed to prove the damage alleged, could not have actual damages in excess of the nominal amount of one dollar.

Raymond E. Martin, Frank Reinhardt and W. Raleigh Gough for respondent.

(1) (a) The statute does not require a "continuous" employment of at least ninety days. The statute (Sec. 5064, R. S. 1939) gives the right to a service letter to an employee "if such employee shall have been in the service of said corporation for a period of at least ninety days." The statute does not say that the employee must have been "continuously" employed or that he must have been in service for ninety "consecutive" days. The purpose for the enactment of this law was stated in Cheek v. Prudential Ins. Co. (Mo.), 192 S.W. 387. The court there held that the statute was "remedial" in purpose and "conformatory of the common law." In In re Becker et al., 80 N.Y.S. 1115, 39 Misc. 756, a testator had provided bequests for employees in his service at the time of his death, these bequests varying in amount in proportion to the length of service. One employee had been employed, altogether, about four years, composed of three periods of less than two years each. This employee claimed a legacy of $ 500. The executors contended that his legacy should be only $ 100. Said the court: "There is no authority which I can find directly applicable to the circumstances of the present case. The general definition of the word 'period' in reference to time is to refer to a continuous period, and the question is, therefore, whether the testator, in using the expression 'period,' intended to give it any such definition, or whether he simply meant to refer to term of employment. While there is little from which the intent of the testator can be drawn on this subject, yet it is evident that the desire of the testator was to recognize the persons who were in his employ at the time of his death, and to make the recognition depend upon the length of their services. That being the case, it seems to me that it is immaterial whether it was continuous or not, as, if the testator had had in mind an intention to restrict its provisions to persons who had been in his employ continuously, no doubt he would have indicated it by the use of the word 'continuous.'" It should be noticed that the statute is two-fold in character. It provides for a criminal penalty; and it impliedly provides for a civil remedy, and in that sense is "remedial," as held in the Cheek case. Defendant cites Lyons v. St. Joseph Belt Ry. Co., 84 S.W.2d 933. In that case Judge Reynolds said that its penal character would be conceded, and that the statute is to be "strictly construed," citing Lynch v. M.-K.-T. R. Co., 333 Mo. 89, 61 S.W.2d 918. The court in the last case held that the statute requiring signals at railroad crossings was two-fold in character, penal and remedial; that the penal portions of the statute should be construed strictly, but, "so far as it is to be considered as compensation for an injury done, it is to be construed as any other statute" (61 S.W.2d 925 (12). Judge Reynolds held in the case of Walker v. St. Joseph Belt Ry. Co., 102 S.W.2d 718, 724 (5) that, although the statute -- in its penal character -- should be strictly construed, yet that it should also be given "a reasonable application in view of its objects and purposes and the evils to be remedied by it." In declaring the sense of a statute, the court should effectuate its obvious intent in favor of remedial justice, rather than infringe its spirit by a narrow and technical construction. Rodgers v. National Council, etc., 172 Mo.App. 719, 155 S.W. 874. The object sought to be attained by the enactment of a statute should be considered in its interpretation. Ross v. K. C., St. J., etc., R. Co., 111 Mo. 18, 19 S.W. 541; State ex inf. Collins v. St. L. & S. F. R. Co., 238 Mo. 605, 142 S.W. 279; Lusk v. Public Service Comm., 277 Mo. 264, 210 S.W. 72. (b) Since plaintiff had been continuously employed for at least ninety days prior to the "discharge" in April or May, 1940, he had a right to a service letter, irrespective of his employment subsequent to that time. Words cannot be interpolated into a statute, where their unintentional omission is not plainly indicated. Betz v. Columbia Telephone Co., 224 Mo.App. 1004, 24 S.W.2d 224; State ex rel. Cobb v. Thompson, 319 Mo. 492, 5 S.W.2d 57. (c) Plaintiff was entitled to a verdict upon the theory that the first "discharge" did not terminate his employment under defendant. The word "reinstate" means "to place again in position or in a former state." The use of the term ordinarily implies a reinstatement to a whole or unity. 53 C. J. 1182; Webster's New International Dictionary. As used in insurance law, the term does not mean to insure under a new contract, but a continuation of the original policy. Missouri State L. Ins. Co. v. Jensen, 139 Okla. 130, 281 P. 561, 562; Mutual L. Ins. Co. v. Lovejoy, 203 Ala. 452, 83 So. 591, 594. The word "restore," as used in this connection, has a similar meaning. 54 C. J. 732. (2) The verdict for actual damages was not excessive. The only difference between the facts of this case, on the instant question, and the facts involved in Stephens v. Lever Bros. (Mo. App.), 155 S.W.2d 540, and in Chrisman v. Terminal R. Assn. of St. Louis (Mo. App.), 157 S.W.2d 230, is that, in those cases, the plaintiffs were allowed to testify that prospective employers had asked them for their service letters and they had to reply that they had none (in this case plaintiff was not allowed to testify to such a request), whereas, in the case at bar, plaintiff did testify that he showed prospective employers the unsatisfactory "service letter" that he had obtained from defendant.

Sperry C. Boyer, C., not sitting.

OPINION

SPERRY

Jack Barrows, plaintiff, sued Riss & Company, Inc., a corporation, defendant, for damages because of the failure of defendant to give plaintiff, an employee, a service letter, at his request, on his discharge. Judgment was for plaintiff in the sum of $ 450 actual and $ 650 punitive damages. Defendant appeals.

Plaintiff, in effect, pleaded that he was for more than ninety days in the employ of defendant on and prior to his discharge June 26, 1940; that on that date he requested a service letter; and that defendant refused to give him such a service letter as is provided for in Section 5064, Revised Statutes Missouri, 1939.

Defendant answered by alleging that plaintiff was discharged for cause May 2, 1940, and that he was, thereafter, restored to employment and, June 26, 1940, was again discharged for cause. Defendant also alleged that a service letter was given to plaintiff upon his discharge and that plaintiff made no demand for another or different letter than that which was given to him.

Plaintiff was his own sole witness. His testimony was to the effect that he was employed by defendant as a truck driver in interstate commerce from 1936 until April or May, 1940, when he was discharged for having violated an Interstate Commerce Commission rule prohibiting carrying passengers on the truck; that he was "off" about three weeks; that he was then "reemployed", "reinstated"; and that he was again discharged June 26, 1940. He testified to the effect that, on the last-mentioned date, after his discharge, he demanded that plaintiff give him a service letter, and that no service letter was ever given to him.

Defendant alleged as error the refusal of the trial court to give defendant's offered demurrer to the evidence, and that the verdict for actual damages is excessive.

Plaintiff moves to dismiss the appeal and urges as grounds therefor that defendant's statement is not in compliance with our rule 18. It is claimed that, in view of defendant's contention that its demurrer should have been sustained "appellant states only a small part of the facts bearing on that issue, misstates such facts in a light favorable to appellant and prejudicial to respondent, and omits entirely to state many facts having vital relevance to...