Booth v. Quality Dairy Co.

• Decision Date: 20 July 1965
• Docket Number: No. 31889,31889
• Citation: 393 S.W.2d 845
• Parties: 52 Lab.Cas. P 51,352 William E. BOOTH, Plaintiff-Respondent, v. QUALITY DAIRY COMPANY, Inc., a Corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 845

393 S.W.2d 845

52 Lab.Cas. P 51,352

William E. BOOTH, Plaintiff-Respondent, v. QUALITY DAIRY COMPANY, Inc., a Corporation, Defendant-Appellant.

No. 31889.

St. Louis Court of Appeals, Missouri.

July 20, 1965.

Rehearing Denied Sept. 8, 1965.

Gentry, Bryant & Sheppard, Arnot L. Sheppard, Robert N. Jones, St. Louis, for defendant-appellant.

Joseph Strubinger, St. Louis, for plaintiff-respondent.

DOERNER, Commissioner.

William E. Booth instituted this action against Quality Dairy Company, Inc. in two counts. In Count I plaintiff sought to recover actual and punitive damages for defendant's alleged failure to have complied with Section 290.140, RSMo 1959, V.A.M.S., frequently referred to as our service letter statute; and in Count II plaintiff claimed that defendant was indebted to him in the sum of $557.19 and prayed for judgment for that amount, together with interest thereon. Upon a trial to a jury plaintiff was awarded $1,000 actual damages and $3,000 punitive damages under Count I, and $537.19 under Count II. Thereafter, in response to an order of remittitur, plaintiff remitted $2,000 of the punitive damages awarded, and a final judgment was entered allowing plaintiff $1,000 actual and $1,000 punitive damages under Count I, and $537.19 under Count II. Defendant brings this appeal, but raises no issue regarding the judgment under Count II.

Plaintiff was employed by defendant in July, 1954 as a home delivery route salesman or retail milk truck driver, and continued in that capacity until he voluntarily quit, on August 4, 1959, to accept employment with the Riverview Fire Protective District as a fireman. He did not seek to obtain a service letter until May 20, 1961, when he mailed a written request therefor to defendant. For reasons which will be subsequently discussed, defendant did not respond in writing until June 20, 1961, on which date it mailed a purported service letter to plaintiff. In the interim, on June 7, 1961, plaintiff began this action. Defendant's initial assignment is that the court erred in refusing to give its requested Instruction I, by which the jury would have been told that under the law plaintiff was compelled to request a service letter within a reasonable time after he resigned from the employ of defendant, and that having failed to do so, plaintiff could not recover any damages. In support of its contention defendant points out that no time is fixed in Section 290.140 within which the request for a service letter must be made, or within which the employer must issue the letter after a proper request is made. Defendant cites Heuer v. John R. Thompson Co., Mo.App., 251 S.W.2d 980, 987, in which we said that the statute '* * * being silent as to the time within which the employer must issue a service letter, the law supplies the deficiency and allows the employer a reasonable length of time after the discharged employee makes a proper request therefor within which to issue a service letter. * * *' From this, defendant argues that the 'same necessity' which demanded the holding in the Heuer case requires us to hold in this case that the former employee must make his request for a service letter within a reasonable time after his employment terminates.

We cannot agree that the situations are analogous, or that the basis for the principle announced in the Heuer case is likewise present in the instant case. The first part of Section 290.140 places a duty upon the employer to issue a service letter when a proper request is made, and gives the former employee a right of action upon the employer's refusal or failure to do so. Check v. Prudential Ins. Co. of America, Mo., 192 S.W. 387, L.R.A.1918A, 166; State ex rel. Terminal R.R. Ass'n of St. Louis v. Hughes, 350 Mo. 869, 169 S.W.2d 328. If the employee's request is met with an outright refusal his cause of action, of course, arises immediately. But what period constitutes a failure to issue the requested service letter, and how much time must elapse before a cause of action for failure to issue arises in favor of the employee? As to this, the statute is silent. Of necessity, the employer must be given some time in which to fulfill his duty, for the employee should not be permitted to present his written demand one minute and file suit the next. It was with this problem in mind that we held in the Heuer case that the employer must be allowed a reasonable length of time in which to comply with the former employee's proper request, and that the employee's cause of action does not arise until such a period has expired. There is, however, no corresponding duty placed upon the former employee by the statute to make a request. He may, if so inclined, never request a service letter, in which event no duty arises upon the part of the employer to furnish one. Nor is there any language in Section 290.140 which by necessary implication indicates that the employee's request must be made within a reasonable time after his employment terminates, as was said of Section 290.110 in Monterosso v. St. Louis Globe-Democrat Publishing Co., Mo., 368 S.W.2d 481. To hold as defendant contends would require us by judicial legislation to write in to the statute a special limitation on the employee's right of action where none exists. In the Heuer case the 'necessity' to which the defendant refers impelled us to furnish the employer with a shield as a protection against premature actions; but there is no corresponding reason why we should furnish him with a sword with which he may destroy an employee's legitimate cause of action.

Defendant next contends the evidence did not show that plaintiff was declined employment for lack of a service letter, and that there was no basis in the record for the award of substantial actual damages. In cases of this nature the rule is well-established that to recover substantial actual damages it is incumbent upon the plaintiff to produce evidence that he sought and was refused employment because he did not have a service letter from his former employer. Bubke v. Allied Building Credits, Inc., Mo.App., 380 S.W.2d 516; Heuer v. John R. Thompson Co., supra; Cook v. Mid-Continent Petroleum Corp., Mo.App., 193 S.W.2d 66. While the fact may be established by circumstantial as well as direct evidence, Burens v. Wolfe Wear-U-Well Corp., 236 Mo.App. 892, 158 S.W.2d 175, the circumstances must be such as will sustain the inference to be drawn, and must rise above the level of mere guess and speculation. Bubke v. Allied Building Credits, Inc., supra. In determining the question presented we will view the evidence in the light most favorable to plaintiff, give him the benefit of the reasonable inferences to be drawn therefrom, and, of course, disregard defendant's evidence unfavorable to plaintiff. Roberts v. Emerson Electric Manufacturing Company, Mo., 338 S.W.2d 62.

Most of plaintiff's direct examination was concerned with the dispute which developed between plaintiff and defendant over plaintiff's accounts and plaintiff's efforts to collect what he claimed was due him, which was the subject of Count II. All that he testified to regarding the matter on appeal was that he had already obtained employment with the Riverview Fire Protective District at the time he submitted his letter of resignation, effective as of August 4, 1959; that he was still so employed at the time of trial; that he requested a service letter on May 20, 1961 because he wanted to secure part-time work in addition to his employment as a fireman; and that in a telephone conversation with Vincent Sanders, defendant's credit manager, on May 27, 1961, Sanders told him it was not company policy to issue a service lettter and suggested that plaintiff have prospective employers telephone him. Not one word was mentioned on direct examination regarding any efforts plaintiff may have made to obtain part-time work, and, curiously enough, that feature of the case was first broached by defendant's counsel on cross-examination. In brief, plaintiff reiterated his desire to use the letter to obtain part-time employment, particularly as a tile layer's helper. He admitted that he had started to look for such work before he mailed his request for a service letter, and stated that in january, 1961 he applied to and obtained such employment from Elliott Installations, which continued for a couple of months. Plaintiff also testified on cross-examination that he applied for part-time work at Tile Town, Stix Baer & Fuller, the Spanish Lake Fire Department, and Elliott Installations, but the time when such applications were made was not definitely fixed. Perhaps the nearest approach to any date occurred when defendant's counsel asked:

'Q You think not. Well, did you apply to any other places for work or jobs? We are talking about this end of it here, in addition to what I mentioned.

'A From then or until now, or that two month period? I want to get the period you are talking about.

'Q Well, up to he time your deposition was taken which was the 21st of July, 1961? A Yes, yes, yes.

'Q Did you? A Yes.

'Q Where else did you apply? A Did I mention Stix there?

'Q Yes. A And Elliott Installations and Tile Town?

'Q Yes. A I can't think of any more offhand, Judge, jury.

'Q Well, taking your deposition, when you were asked if you applied anywhere else you said no. That was right? That's correct, is it?

'A Yes.'

While the 'then' in plaintiff's first answer was not otherwise determined, counsel had previously been using the conversation plaintiff had with Sanders on May 27, 1961 as a point of reference regarding time, and the inference may be drawn that plaintiff had that date in mind when he used the word 'then.' Assuming,...