Bubke v. Allied Bldg. Credits, Inc.

• Decision Date: 15 June 1964
• Docket Number: No. 31149,31149
• Citation: 380 S.W.2d 516
• Parties: 49 Lab.Cas. P 51,103 William BUBKE, (Plaintiff) Appellant, v. ALLIED BUILDING CREDITS, INC., a Corporation, (Defendant) Respondent.
• Court: Missouri Court of Appeals

Page 516

380 S.W.2d 516

49 Lab.Cas. P 51,103

William BUBKE, (Plaintiff) Appellant, v. ALLIED BUILDING CREDITS, INC., a Corporation, (Defendant) Respondent.

No. 31149.

St. Louis Court of Appeals, Missouri.

June 15, 1964.

Motion for Rehearing or to Modify Opinion or for Transfer to

Supreme Court Denied July 20, 1964.

Stewart & Bruntrager, Raymond A. Bruntrager, Joseph G. Stewart, St. Louis, for plaintiff-appellant.

Suelthaus & Krueger, W. W. Sleater, III, St. Louis, for defendant-respondent.

DOERNER, Commissioner.

This appeal lately came to the writer by a very recent re-assignment. Plaintiff, a former employee of the defendant corporation, sought by this action to recover both actual and punitive damages for an alleged violation of the service letter statute, Section 290.140 RSMo 1959, V.A.M.S. Trial by jury resulted in a verdict and judgment in favor of the plaintiff for actual damages of $4000 and punitive damages of $6000. The defendant filed a motion for judgment in accordance with its motion for a directed verdict, or, in the alternative, for a new trial. The trial court overruled defendant's motion for judgment; ruled that it had erred in giving plaintiff's instruction on substantial actual damages because the evidence was insufficient to justify the submission of that issue; sustained defendant's motion for a new trial on that one specification but overruled it in all other respects; and granted defendant a new trial on the issue of damages only. Plaintiff alone appealed.

Presumably proceeding on the familiar principle that the best defense is an offense, defendant in its brief has not only attempted to answer the single point raised by plaintiff, but has mounted a two-pronged counter-attack. It contends, first, that plaintiff's appeal is premature because no final judgment has been entered; and, second, that plaintiff's action should be dismissed for failure of plaintiff's petition to state a claim upon which relief can be granted. If the petition wholly fails to state a claim then we should make a final disposition of the case by dismissing plaintiff's action. But if plaintiff's appeal is premature then, of course, we are without jurisdiction to entertain it or to pass upon plaintiff's petition, and our action must necessarily be limited to that of dismissing plaintiff's appeal. We will, therefore, consider defendant's points in their inverse order.

Civil Rule 78.01, V.A.M.R. authorizes the grant of a new trial 'on all or part of the issues after trial by jury, court or referee,' as did its source, Section 510.330, RSMo 1949, V.A.M.S. Our statute on appeals, Section 512.020, RSMo 1959, V.A.M.S., permits any party aggrieved by any judgment of a trial court in any civil action to appeal 'from any order granting a new trial.' In Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 695, 34 A.L.R.2d 972, it was said: 'We construe this language as including the instant order for a new trial as to the damages issue only. We hold that both plaintiff and defendant, as a party aggrieved by such order, was entitled to appeal therefrom.' And in Page v. Hamilton, Mo., 329 S.W.2d 758, 762, it was held:

'Where, on defendant's motion after an adverse verdict, the court grants a new trial on the issue of liability only or on the issue of damages only and overrules the motion in all other particulars, the new trial ordered is in effect on the court's own motion since it is one for which the defendant did not ask in his motion and one which the plaintiff did not seek, and the court's order constitutes on order granting a new trial under section 512.020 from which both the plaintiff and the defendant, as aggrieved parties, can appeal.'

Defendant attempts to distinguish the Stith case cited by plaintiff on the grounds that there both parties appealed, whereas, in the instant case defendant did not appeal. But as both of the foregoing decisions state, defendant as well as plaintiff was an aggrieved party and had the right to appeal. The fact that defendant chose not to do so cannot prejudice plaintiff's right to appeal. Either or both parties had the right to do so. Snyder v. St. Louis Public Service Co., Mo., 329 S.W.2d 721. Defendant's contention that plaintiff's appeal is premature is without merit.

In his amended petition on which the case was tried plaintiff alleged that defendant was a Delaware corporation, doing business in Missouri; that he was continuously in its employ from April 11, 1949, until his discharge on March 14, 1960; that he had made a written request for a letter of dismissal as provided by the laws of the State of Missouri; that defendant failed and refused to issue to plaintiff a service letter setting forth the nature and character of services rendered by plaintiff to defendant, the duration of said services and the cause for which plaintiff was discharged; that 'as a direct result of defendant's refusal to give plaintiff said letter of dismissal, said plaintiff has been embarrassed and greatly hampered in his attempt to obtain other employment'; and that the defendant's refusal to give plaintiff the letter of dismissal was willful and malicious. The prayer was for actual damages of $4000 and punitive damages of $6000. Defendant argues that the petition wholly fails to state a claim upon which relief can be granted because, in its words, 'Nowhere in plaintiff's petition does he allege loss of wages as an element of damage.' (Emphasis defendant's). Defendant has confused plaintiff's fundamental right to relief with the subordinate issue of the amount of relief. As we pointed out in Heuer v. John R. Thompson Co., Mo.App., 251 S.W.2d 980, no time is specified in Section 290.140 within which an employer must furnish a properly requested service letter, and the law, therefore, allows the employer a reasonable time. When that period of time expires without a letter having been furnished, a cause of action arises in favor of the discharged employee entitling him to a judgment for at least nominal damages, and punitive damages in a proper case. This for the reason that the law presumes that at least nominal actual damages have resulted from the employer's failure to supply the service letter. It is only where the discharged employee seeks to recover substantial actual damages that he must plead and prove that he was refused employment for lack of a service letter. Heuer v. John R. Thompson Co., supra; Van Sickle v. Katz Drug Co., 235 Mo.App. 952, 151 S.W.2d 489. Plaintiff pleaded his discharge, his request for a service letter, and defendant's failure to furnish one as of the day his suit was filed, May 2, 1960. (One was subsequently given him, as will appear). The time elapsed was sufficient to at least make a submissible issue as to its reasonableness. On its face plaintiff's petition was, therefore, sufficient to state a claim for at least nominal damages, and hence did not wholly fail to state a claim upon which any relief could be granted.

We turn then to the substance of the action and the merits of plaintiff's appeal. In that connection it should be said at the outset that the trial court granted defendant a new trial on the issue of damages only because in its opinion there was no evidence that plaintiff sought and was refused employment for lack of a service letter. Plaintiff contends that in so ruling the court erred, and that there was sufficient direct and circumstantial evidence to warrant the submission of that issue to the jury. This requires a careful review of the evidence. We agree with plaintiff that in determining the question we must view the evidence in the light most favorable to plaintiff and give him the benefit of all reasonable inferences to be drawn therefrom; and, of course, must disregard defendant's evidence unfavorable to plaintiff. Roberts v. Emerson Electric Mfg. Co., Mo., 338 S.W.2d 62.

Plaintiff's evidence was that upon his graduation from Stanford University he entered defendant's employ as a trainee on April 11, 1949. He was first assigned to the defendant's Seattle office. Over the succeeding years he was transferred to other offices, at first to Portland Oregon, and later to Birmingham, Alabama, and advanced in rank, until in April, 1953, he came to St. Louis as Office Manager In 1956 he was promoted to the position of Manager, in charge of the St. Louis office, at a salary of $8500 per year, plus a bonus in an unstated amount. Plaintiff testified that on Friday, March 11, 1960, one C. A. Nichol, Vice-President and Comptroller and Chief Personnel Officer, arrived in St. Louis from the Company's home office in Los Angeles. He gave plaintiff no reason for his unannounced visit. Because of prior appointments plaintiff was out of his office most of the day and saw little of Nichol. He did see Nichol the next day, and again on Monday, March 14, but it was not until about 2:00 P.M. of the latter day, and after Nichol had made a long distance telephone call to R. D. Syer, the Company's President, that Nichol told plaintiff the management was dissatisfied with his performance as to profits and would not continue his employment. Plaintiff admitted that making a profit in the St. Louis office had been a problem when he came there, and had continued to be a problem during his tenure as Manager. Nichol, according to plaintiff, suggested that he offer a letter of resignation but he declined to do so because he had not resigned.

Plaintiff testified that he started to seek other employment two days after he had been discharged. Between that time and May 2, 1960, when this suit was filed, he made application with Missouri State Employment Service, answered newspaper advertisements and contacted friends and business acquaintances to request their assistance in obtaining employment. He did not confine himself to the field of installment loans and financing, in which he had been engaged while working for defendant, but also sought an administrative...