Collins v. Economy Oil Co.

• Decision Date: 29 May 1939
• Docket Number: No. 19427.,19427.
• Citation: 129 S.W.2d 1066
• Parties: COLLINS v. ECONOMY OIL CO.
• Court: Missouri Court of Appeals

129 S.W.2d 1066

COLLINS v. ECONOMY OIL CO.

No. 19427.

Kansas City Court of Appeals. Missouri.

May 29, 1939.

Rehearing Denied June 19, 1939.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

"Not to be published in State Reports."

Action by James F. Collins against the Economy Oil Company, for damages for refusal to give service letter after discharge. From a judgment on a verdict for plaintiff, defendant appeals.

Affirmed.

Jas. H. Anderson and J. K. Owens, both of Kansas City, for appellant.

Dean Frazier, of Kansas City, for respondent.

SHAIN, Presiding Judge.

This is an action for damages, actual and punitive, based upon alleged refusal of the superintendent or manager of the defendant corporation to issue to plaintiff, upon request, a service letter as provided for in section 4588, R.S.1929, Mo.St.Ann. § 4588, p. 2026.

The plaintiff pleads service with the defendant for a period of over ninety days and alleges discharge by plaintiff and request for letter and refusal of the defendant to give said letter.

Defendant answers by a general denial.

Trial was before a jury resulting in verdict of $1 actual and $350 punitive damages in favor of plaintiff. Judgment was had and entered in conformity to verdict and plaintiff appeals.

We will continue to refer to respondent as plaintiff and to appellant as defendant.

There is but one assignment of error, to-wit: "The Court erred in not giving defendant's instruction in the nature of a demurrer at the close of all the evidence, for the reason that the plaintiff failed to prove that he was damaged as a result of the failure to give a service letter."

The plaintiff is the only witness called to testify in the case. The testimony as to being employed is as follows:

"Q. (By Mr. Frazier) Just tell what happened when you went to the office of the Economy Oil Company when you first went there to get this job. A. All right. When I went out to the office Mr. Hose just come out the door of the office. The office and the station are combined out there, and he just come out. I shook hands with him and told him I was the man that Mr. Forbes called him about and sent me out here, and he said, `Well, it is all right with me to come to work. You go in and talked to Mrs. Weidman.' She was there in the office so I went in and talked with Mrs. Weidman. She acted like she was kind of half mad because she had to make out the papers. She said: `I wish Mr. Hose would stay here and look after these things. He is the manager and should do the hiring.'"

As to the conversation concerning his work, there is shown the following:

"Q. (By Mr. Frazier) Did you ever have any conversation there with the Economy Oil Company in regard to your work, your duties? A. Yes. Mr. Hose used to make suggestions when he would come in there every night about to do this and that and `Keep this door closed' and `Don't let anybody hang around' and all those things.

"Q. Did he ever ask you about transferring you to another station?

"Mr. Owens: I object to that, Your Honor, as leading and suggestive and calling for a conclusion of the witness.

"The Court: Overruled.

"To which action, order and ruling of the Court, the defendant at the time duly excepted and still excepts.

"A. He told me the boy I had worked with told him what a good man I was and he was going to open some other stations and wanted to know if I would consider taking charge of one of them. I told him: `I would. I would be glad to. I am always looking for something better.'

"Q. (By Mr. Frazier) Did anybody else ever give you any orders except Mr. Hose. A. No."

Plaintiff testified as to the length of his service being over ninety days and that he was discharged on November 3rd. Further, plaintiff testified as to conversation with the manager, stated as being on December 27th, four days after he was discharged.

The record shows as follows:

"The Court: Now, Mr. Collins, just tell the jury what you said to him and what he said to you. A. I said to him, I said: `Mr. Hose, will you give me my job back?' He said: `No.' I said: `Will you give me a recommendation?' He said: `No.' I said: `Will you give me a service letter stating why I was discharged and also about the time I worked and what kind of work I done?' He said: `I wouldn't give you a damn thing.'"

As to the conversation two or three days after the above, the following appears:

"Q. What was the conversation that took place at that time? A. I asked him again the very same thing. I said: `Mr. Hose, won't you give me my job back?' And I said: `Won't you give me a recommendation?' He said: `No.' I said: `Won't you give me a service letter giving the reason for my discharge?' He said: `Are you hard of hearing? I won't give you a damn thing. I told you so yesterday.'"

On cross-examination of plaintiff the following questions and answers appear:

"Q. Who employed you out there? A. Mrs. Weideman. He talked it over with Mrs. Weideman and she hired me.

"Q. Did you ever ask Mrs. Weideman...