Burens v. Wolfe Wear-U-Well Corp.

• Decision Date: 05 January 1942
• Citation: Burens v. Wolfe Wear-U-Well Corp., 158 S.W.2d 175, 236 Mo. App. 892 (Kan. App. 1942)
• Parties: EDWARD J. BURENS, RESPONDENT, v. WOLFE WEAR-U-WELL CORPORATION, A CORPORATION, APPELLANT
• Court: Kansas Court of Appeals

158 S.W.2d 175

236 Mo.App. 892

EDWARD J. BURENS, RESPONDENT, v. WOLFE WEAR-U-WELL CORPORATION, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

January 5, 1942

Appeal from Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.

AFFIRMED.

Judgment affirmed.

Joe W McQueen and C. F. Douglass for appellant.

(1) The court erred in refusing to give defendant's instruction in the nature of a demurrer offered at the close of all the evidence for the reason that the pleadings and evidence disclose that all of the acts complained of were committed by the appellant's servant and joint defendant, Dawson, and the court having sustained a demurrer as to Dawson freeing him from all liability, it is inconsistent, contradictory and wrong to permit the jury to return a verdict as to the employer corporation, who can only act through its agents servants and employees. Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S.W. 1062; Brown v. Alton R. Co. et al., 151 S.W.2d 727; 39 C. J. 1367; McGinnis v. Chicago R. I. P. Ry., 200 Mo. 349, 98 S.W. 590; Blaisnay v. Albert Wenzlick Real Estate Co., 138 S.W.2d 721; Michely v. Mississippi Valley Structural Steel Co., 221 Mo.App. 205, 299 S.W. 830; Presley v. Central Terminal Co., 142 S.W.2d 799. (2) The verdict as to actual damages is excessive. Williams v. East St. Louis Ry. Co. (Mo. App.), 100 S.W.2d 51; Schaefer et al. v. Frazier Davis Const. Co. (Mo. App.), 125 S.W.2d 897; Shafer v. Harvey et al., 192 Mo.App. 502, 183 S.W. 670; Kennedy v. Portman et al., 97 Mo.App. 253, 70 S.W. 1099; Thero v. Mo. P. Ry. Co., 144 Mo.App. 161, 129 S.W. 266; Perkins v. United Rys. Co. of St. Louis (Mo. App.), 243 S.W. 224. (3) The court erred in refusing to give defendant's Instruction lettered G. Soule v. St. Joseph Ry., Light, Heat & Power Co. (Mo. App.), 274 S.W. 517. (4) The court erred in giving respondent's instruction numbered one. (a) Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1; Putnam v. Unionville Granite Works, 122 S.W.2d 389; (b) Mott et al. v. Chicago, R. I. P. Ry. Co., 79 S.W.2d 1057. (5) It was error to give respondent's Instruction numbered 2, after the court gave the peremptory instruction as to manager Dawson, for this instruction submitted malice. Authorities cited under Point 1.

Schultz & Bodney and Walter A. Raymond for respondent.

(1) There is no inconsistency between the voluntary dismissal as to defendant Dawson and the judgment against the employer defendant Wolfe Wear-U-Well. Cheek v. Prudential Ins. Co., 192 S.W. 387, 391; Pilkington v. Pilkington, 230 Mo.App. 569, 93 S.W.2d 1068, 1072; Gann v. Dearborn Mfg. Co., 129 Mo.App. 425, 107 S.W. 15, 16; Arcadia Timber Co. v. Evans, 264 S.W. 810. (2) The verdict is sustained by the evidence and is no more than reasonable compensation for the loss sustained by plaintiff. Simpson v. Ball, 145 Mo.App. 268, 129 S.W. 1017, 1018; South Side Buick Auto Co. v. Schmitter, 5 S.W.2d 687, 688; Puller v. Royal Casualty Co., 271 Mo. 369, 196 S.W. 755, 762; Wells v. Thomas W. Garland, Inc., 39 S.W.2d 409, 411. (3) There was competent evidence of actual damage. The court therefore properly refused defendant's requested Instruction G which would have limited plaintiff to nominal damages. Westenhaver v. St. Louis-San Francisco Ry. Co., 340 Mo. 551, 102 S.W.2d 661, 665; Brimer v. Davis, 211 Mo.App. 47, 245 S.W. 404, 412; Lee v. Allen, 120 S.W.2d 172, 175; Jenkins v. Springfield Traction Co., 230 Mo.App. 1235, 96 S.W.2d 620, 624; Northcutt v. St. Louis Public Serv. Co., 48 S.W.2d 89, 91; State ex rel. Johnson v. Weinberg, 151 S.W.2d 134, 138. (4) The court committed no error in giving respondent's instructions Nos. 1 and 2.

BOYER, C. Sperry, C., concurs.

OPINION

BOYER, C.

[236 Mo.App. 895] --Plaintiff obtained a judgment against the corporation for $ 800 actual and $ 200 punitive damages upon his petition charging that the corporate manager wrongfully, wilfully and maliciously refused to issue him a service letter upon the termination of his employment as required by Section 4588, Revised Statutes Missouri, 1929. T. W. Dawson was the superintendent and manager of the corporation and was joined in the suit as a codefendant.

At the close of plaintiff's evidence the court marked given an instruction to the effect that under the law and the evidence the verdict must be in favor of defendant, Dawson. There was no verdict under this instruction. At the close of all the evidence counsel for plaintiff announced: "Now plaintiff dismisses as to defendant, Dawson." The case was submitted to the jury upon instructions authorizing the recovery of both actual and punitive damages against the corporation with the result above stated. The corporation has duly appealed.

The errors are assigned in the brief under points and authorities. It is asserted with alleged reasons that the court erred (1) in refusing to sustain the demurrer of defendant at the close of all the evidence; (2) that the verdict for actual damages is excessive; and (3) that the court erred in giving and in refusing to give certain specified instructions.

There is evidence of the following facts: Plaintiff was employed by defendant corporation from 1927 to October 24, 1938, when he was discharged. The defendant was a wholesale distributor of shoes with a branch office at Kansas City, where plaintiff was employed doing work in the warehouse and on the road. At the time of plaintiff's discharge, T. W. Dawson was superintendent and manager at the Kansas City branch and had been for approximately one year. Immediately after plaintiff's discharge he obtained employment with a Mr. Carlat who was operating a retail shoe shore in Kansas City and handling the Wolfe Wear-U-Well line of shoes. When plaintiff returned after lunch on the first day of his employment he was discharged by Mr. Carlat who testified that Mr. Dawson came to see him and asked if Burens was working there. Plaintiff was out at lunch. Dawson told Carlat that plaintiff was an agitator and trouble maker, and that he would take the stock of shoes away from Carlat if he hired plaintiff. As a result of this plaintiff was discharged. Plaintiff sought employment at various places and went to the Harris-Patton Employment Agency in Kansas City to enlist their services in procuring a position. He was informed that it would be necessary for him to have a service letter or letter of recommendation. The same request was made of him at other places where he applied for work. Plaintiff called on manager Dawson for a service letter in December, 1938, and stated that he informed Mr. Dawson that he wanted a letter stating the length of his service, the type of work and his qualifications, and that he could not get a job without such a letter. Dawson refused to give plaintiff a letter, but stated he would answer over the telephone or by letter any inquiries if plaintiff would find a place and give him as reference. A prospective employer of plaintiff wrote Dawson inquiring about plaintiff's qualifications, but received no reply. Dawson admitted that he received the letter and also admitted that he did not answer it. Plaintiff did not obtain employment from the party making the inquiry.

When plaintiff called on Dawson to obtain a letter he was accompanied by his brother-in-law who testified in plaintiff's behalf as to what occurred at that time, and in describing the conversation between plaintiff and Dawson, he said: "Well, at first I didn't pay much attention until I heard Ed ask him for a letter of recommendation and he said he wouldn't give it to him, and he said, 'Will you give me some kind of letter showing how long I worked here?', and he said, 'No, I won't give you that.' And Ed said something about the law, 'You know the law' or something, and he said, 'Yes, I know that, but I ain't going to give you any letter.'" He also quoted plaintiff as saying to Dawson: "I can't get a job any place. You keep me from getting any work."

Plaintiff made diligent effort to obtain work and made application at numerous places, including the Western Auto, Parkview Pharmacy, Webb Belting Company, Harris-Patton Employment Agency, and Missouri Employment Agency. Plaintiff failed to secure permanent employment until September, 1939, when the State employment agency succeeded in placing him with the Hood Rubber Company. From the time of his discharge October 24, 1938, to September, 1939, plaintiff earned not to exceed $ 100, but applied for and received twelve weeks' unemployment compensation. The amount was not shown in evidence.

While employed in defendant's warehouse, plaintiff's wages were stated to be $ 80 per month or $ 42 or $ 43 every two weeks. When traveling on the road for defendant his salary was $ 90 a month. The road service was for about a year. Plaintiff went back in the warehouse and was working there at the time of his discharge.

The business agent for truck drivers and warehousemen attempted to have plaintiff reinstated, and in doing so said that Dawson claimed that when Burens was on the road he had not been honest in his dealings in several instances, and that Dawson spoke emphatically and not in a friendly way.

The testimony of manager Dawson was to the effect that he came to Kansas City as branch manager in June, 1937; that plaintiff was working in the warehouse and desired a job on the road which Dawson granted at a pay of $ 90 per month; that he was on the road for a short time and did not get along well and requested that he be taken back into the warehouse which was done. His work was unsatisfactory after returning and for some reason he would not co-operate with other employees, and numerous complaints were made about the way he was doing his work by other employees of the company, and that...