Cheek v. Prudential Ins. Co.

• Decision Date: 17 June 1920
• Docket Number: No. 16597.,16597.
• Citation: 223 S.W. 754
• Parties: CHEEK v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Missouri Court of Appeals

223 S.W. 754

CHEEK v. PRUDENTIAL INS. CO. OF AMERICA.

No. 16597.

St. Louis Court of Appeals. Missouri.

June 17, 1920.

Rehearing Denied June 23, 1920.

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

"Not to be officially published."

Action by Robert T. Cheek against the Prudential Insurance Company of America. Judgment for plaintiff, and defendant appealed to the Supreme Court (209 S. W. 928), which transferred the case. Affirmed.

Fordyce, Holliday & White, of St. Louis, for appellant.

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

ALLEN, J.

This action was instituted on November 14, 1912, in the circuit court of the city of St. Louis; the petition being in two counts. The circuit court sustained demurrers to both counts of the petition, whereupon plaintiff declined to plead further, and final judgment was entered for defendant, from which judgment the plaintiff prosecuted an appeal to the Supreme Court, where the judgment of the circuit court was reversed and the cause remanded. See Cheek v. Prudential Insurance Co., 192 S. W. 387, L. R. A. 1918A, 166. Thereafter the defendant filed an answer, and the cause went to trial, resulting in a verdict for plaintiff on both counts of the petition. From a judgment entered on such verdict defendant appealed to the Supreme Court. On this second appeal the Supreme Court held that the record contained nothing to give it jurisdiction, and transferred the case to this court. Cheek v. Prudential Insurance Co., 209 S. W. 928. The cause has been submitted to us on the record and briefs filed in the Supreme Court.

The substance of the pleadings and the evidence, and the nature of the verdict, will appear from the following, which we quote from the opinion of the Supreme Court on this appeal, in transferring the case here, namely:

"The petition was in two counts. The first alleges a violation of the provisions of section 3020, 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. Each count alleged and asked damages arising from his inability to obtain employment by reason of the matters charged therein, and also asked punitory damages. * * *

"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 due 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 to contract, without due process of law, in violation of section 1 of article 14 of the Amendmeats to the Constitution of the United States. Upon these pleadings the cause went to trial, resulting in the judgment now before us for review.

"At the trial it was developed in evidence that the defendant had an office in St. Louis, in charge of a superintendent. It was largely engaged in industrial insurance, and, together with the Metropolitan and John Hancock Companies, did practically all the business of that character in the city, although a very small Percentage of such policies were written incidentally by other life companies. The plaintiff entered its service in 1898, and remained with it until some time in December, 1911, when he resigned to take a position in Texas with a stove company, for which he expected to work with his son, who became dissatisfied and quit, so that the arrangement was not...