Cheek v. Prudential Ins. Co. of America, No. 20774.

• Court: Missouri Supreme Court
• Writing for the Court: Brown
• Citation: 209 S.W. 928
• Decision Date: 30 December 1918
• Docket Number: No. 20774.
• Parties: CHEEK v. PRUDENTIAL INS. CO. OF AMERICA.

209 S.W. 928 CHEEK
v.
PRUDENTIAL INS. CO. OF AMERICA. No. 20774. Supreme Court of Missouri, Division No. 1. December 30, 1918. Motion for Rehearing Denied March 1, 1919.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

Suit by Robert T. Cheek against the Prudential Insurance Company of America, a corporation. From a judgment for plaintiff, defendant appeals. Cause transferred to St. Louis Court of Appeals for want of jurisdiction.

See, also, 192 S. W. 387, L. R. A. 1918A, 166.

Fordyce, Holliday & White, of St. Louis (Alfred Hurrell and James Guest, both of Newark, N. J., of counsel), for appellant.

[209 S.W. 929]

Edward H. Robinson and F. H. Bacon, both of St. Louis, for respondent.

BROWN, C.

This suit was instituted in the circuit court for the city of St. Louis November 14, 1912. The petition was in two counts. The `first alleges a violation of the provisions of section 3020 of the Revised Statutes of Missouri 1909, by the wrongful and willful failure of defendant's superintendent to give plaintiff, on his demand therefor, a letter setting forth the nature and character of services rendered by plaintiff to defendant corporation, the duration thereof, and truly stating for what cause plaintiff had quit such service. The second count charges an unlawful conspiracy by way of an agreement between defendant and other insurance companies, including the Metropolitan Life Insurance Company and the John Hancock Mutual Life Insurance Company, by which they mutually agreed that neither of said companies would employ any person who had left the service of either of the others. Bach count alleged and asked damages arising from his inability to obtain employment by reason of the matters charged therein, and also asked punitory damages. The petition is long and is fully copied in the report of the same case in this court upon a former appeal. 192 S. W. 387, L. R. A. 1918A, 166. As no question is made upon its sufficiency to state the facts upon which the plaintiff seeks to recover, it will not be necessary to make further reference to it.

The defendant demurred generally to each count. We will assume, as we assumed on the former hearing, that the demurrer properly presented the constitutional questions which we then decided, as well as the right of the plaintiff to recover damages for a violation of the terms of the statute declared upon in the first count. The demurrer was sustained, and the plaintiff, declining to plead further, suffered judgment thereon, from which he appealed to this court by which the judgment was reversed and the cause remanded to the circuit court for trial upon both counts of the petition. Our opinion upon that appeal will be presently noticed as well as the defendant's motion for a rehearing of the cause subsequently filed and overruled.

Upon the going down of our mandate the defendant answered by a general denial of the facts stated in each count except those relating to its own corporate capacity.

As an "affirmative defense" to the first count the answer pleaded as follows:

"Defendant avers that said count of plaintiff's petition is founded on section 3020 of the Revised Statutes of Missouri 1909, requiring a letter of dismissal to be given employés quitting the service of any corporation doing business in Missouri; that said statute does not impose any penalty upon or give any right of action against said corporation, and that such statute is unconstitutional, in that it is discriminatory and is class legislation and infringes on the right of free speech, all in violation of section 14 of article 2, of section 30 of article 2, and of section 53, article 4, of the Constitution of Missouri, and that said statute is likewise unconstitutional, in that it attempts to deprive this defendant of its property and right of contract without clue process of law, in violation of section 1 of article 14 of the Amendments to the Constitution of the United States."

For affirmative defense to the second count it pleaded that to permit a recovery on account of the agreement therein alleged would deprive the defendant of its property and of the right...