Francisco v. Kansas City Star Co.

• Court: Missouri Court of Appeals
• Writing for the Court: MANFORD
• Citation: Francisco v. Kansas City Star Co., 629 S.W.2d 524 (Mo. App. 1981)
• Decision Date: 24 November 1981
• Docket Number: No. WD,WD
• Parties: J. Herbert FRANCISCO, Respondent, v. The KANSAS CITY STAR COMPANY, Appellant. 31520.

Page 524

629 S.W.2d 524

J. Herbert FRANCISCO, Respondent, v. The KANSAS CITY STAR COMPANY, Appellant.

No. WD 31520.

Missouri Court of Appeals, Western District.

Nov. 24, 1981.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied Jan.

8, 1982.

Application to Transfer Denied Feb. 16, 1982.

John T. Martin, Sam L. Colville, Dennis R. Dow, Kansas City, for appellant.

M. Randall Vanet, Kansas City, for respondent.

Before MANFORD, P. J., and DIXON and NUGENT, JJ.

MANFORD, Presiding Judge.

This appeal follows a jury award of $43,327.00, representing damages upon a claim for tortious interference of contract. The judgment is reversed.

Appellant presents eight points of error. Because of the disposition herein, consideration of only one alleged error suffices. In summary, appellant charges the trial court erred in denying its motion for a directed verdict because there was no substantial evidence to support respondent's claim that appellant's actions were done with intent to cause a breach of contract and were done without justification.

On July 21, 1972, respondent entered into a contract with appellant to distribute newspapers in Chillicothe, Missouri commencing August 1, 1972. Respondent made a security deposit to cover any amount that might be due appellant periodically for newspapers purchased by respondent on account. The relevant parts of the contract between appellant and respondent are as follows:

"1. THE DISTRIBUTOR (respondent) agrees to purchase from THE STAR (Company), and THE STAR agrees to sell to DISTRIBUTOR, a sufficient number of copies of The Kansas City Star, The Kansas City Times, and The Kansas City Sunday Star as will enable the DISTRIBUTOR to make regular daily delivery of the same to all of the regular subscribers for said newspapers at Chillicothe, Missouri.

2. The DISTRIBUTOR agrees that he will deliver promptly each issue of The Kansas City Star, The Kansas City Times, and The Kansas City Sunday Star, each day upon receipt of the same, to the regular subscribers for said newspapers, and the dealers and newsboys located at the place hereinabove specified.

8. The DISTRIBUTOR shall not assign or transfer this contract or any part hereof, unless the written consent of THE STAR be first had and obtained.

10. This agreement may be terminated by either party hereto at any time by either party giving to the other thirty days' notice in writing of his or its election to terminate the same.

11. The DISTRIBUTOR is not in any sense an agent, servant, or employee of THE STAR, but is in every sense an independent contractor, and has no right, power, or authority to bind THE STAR upon any obligation of any kind, character, or nature whatsoever."

Before assuming his duties as distributor, respondent entered into an agreement with Robert Lynch, the previous Chillicothe distributor, whereby respondent would pay Lynch $35,000 for the distributorship. Respondent paid Lynch $11,500 in cash and executed a loan, a promissory note through the Chillicothe State Bank for the.$23,500 balance.

A few months after respondent began distributing newspapers, appellant determined that there had been several instances of unsatisfactory service. As a result, appellant sent respondent a notice of the cancellation of its contract with respondent by letter dated November 29, 1972 with cancellation to be effective December 30, 1972. However, prior to the effective cancellation date, the parties agreed to extend the cancellation date to March 1, 1973, during which respondent would have an additional opportunity to improve his services in Chillicothe. On January 16, 1973, a few weeks after the extension agreement was executed, respondent sustained injuries from a fall while distributing papers. As a result, he sent a letter to appellant expressing the intention to terminate his contract effective March 31, 1973. This letter was received by appellant on February 19, 1973. In a letter to respondent dated March 7, 1973, appellant acknowledged the receipt of respondent's intention to terminate his distributorship and acceded to the March 31, 1973 termination date. The letter also informed respondent that "... any contract negotiations and signings with a new distributor who is satisfactory to The Star must be completed with The Star prior to March 15, 1973. Otherwise, The Star will make other arrangements for the distribution of the papers."

The next contact between the parties to this action took place on March 21, 1973, when respondent told Mr. Glen Peer, a representative of appellant that the last day of March was his final day of delivery and that he owed the customers a notice that he would quit which he would send by Friday, March 23, 1973. The notice was sent on or about that date, and informed the customers that all matters concerning delivery of the Kansas City Times, Kansas City Star and Sunday Star newspapers would be received at various telephone numbers belonging to appellant and its representatives.

During the latter part of March, 1973, Mr. Henry Brzyski heard that respondent was relinquishing his Star distributorship in Chillicothe. Brzyski was employed as a teacher at Chillicothe High School and also worked part-time for H. & R. Block preparing income tax returns. He had previously given notice that he would no longer teach and was actively seeking other employment. This led to Brzyski contacting respondent to inquire about taking over the Chillicothe distributorship. In the course of this inquiry, respondent showed Brzyski a "route book" which contained the names and addresses of newspaper subscribers and also drove Brzyski around a portion of respondent's distribution route. As a result of this inquiry, respondent and Brzyski reached the following tentative oral agreement:

Respondent would "sell the route" together with a truck and newspaper tying machine to Brzyski if Brzyski was approved and entered into a distributorship contract with appellant. Respondent also agreed to help Brzyski with afternoon deliveries of the Star in Chillicothe until mid-May, 1973 when Brzyski's duties as a teacher were completed. In return, Brzyski would assume the balance due from respondent and his wife on the promissory note with the Chillicothe State Bank.

On Thursday, March 29, 1973, Mr. Wilbur Reagan, county circulation manager for appellant, received respondent's recommendation that appellant contract with Brzyski, effective April 1, 1973, for the distribution of newspapers in Chillicothe. Prior to this communication, nothing in the record suggests that appellant had prior knowledge that respondent would recommend anyone to assume distribution of the newspapers or that Brzyski had the interest or qualifications necessary to handle the job to appellant's satisfaction. Appellant nevertheless began inquiry as to Brzyski's qualifications and contacted a Mr. John Hack, who they were informed had employed Brzyski to deliver newspapers in Lawrence, Kansas. This reference commented favorably on Brzyski's performance.

In addition to contacting Mr. Hack, Mr. O. B. Strausser and Mr. Glen Peer, representatives of appellant met with Brzyski for the first time on or about March 29, 1973 at Brzyski's home ten miles south of Chillicothe. During the course of the meeting, the mechanics of distribution and service were discussed, as well as appellant's philosophy about delivering the papers. Brzyski testified that it became apparent to him during the course of the meeting that appellant's representatives assumed that he would move to Chillicothe if he entered a contract with appellant. Brzyski informed them that he was not interested in moving to Chillicothe and the remainder of the discussion involved Strausser and Peer telling Brzyski that "they did not feel he could service the route properly if he remained in his residence outside of Chillicothe". In his brief, respondent emphasizes the following deposition testimony of Brzyski introduced at trial "Question: Now, this first conversation that you had with the representatives of Star, I think you said you gained the impression from what they said first of all you testified, I believe that they told you you would be approved by the Star?

Answer: I believe they did at that point, yes.

Question: But you gained the impression that it would be necessary for you to move into Chillicothe?

Answer: Yes.

Question: Now did the Star representatives tell you that?

Answer: Under oath I would have to quote somebody's words, you know. I really don't recall the exact words that they used, but something to the effect that they couldn't see how I could provide proper service to the route living where I did, and that the way they viewed it the only way the route could be properly serviced was that I lived in town. * * *

Question: But did they make it a condition that you would have to move into Chillicothe in order to enter into a contract with The Kansas City Star Company?

Answer: That was the impression that I had.

Question: That was your impression, that that was a condition?

Answer: That to get the route I would have to move to town. That was the impression that I had then.

Question: That was the impression that you had then?

Answer: Yes, that's correct."

Brzyski was not able to testify either at deposition or at trial that appellant's representatives made moving to Chillicothe a condition of approval by appellant. O. B. Strausser testified that he told Brzyski at the first meeting the following:

"I did say, naturally, that the closer you were to your work, not only The Kansas City Star but any job, the closer you are. I told him that, of course, he would have calls for missed papers that would have to be delivered. He would have calls that didn't get their paper at all, and they would have other calls, and, of course, it would be easier if he lived closer in Chillicothe, but I told him just as plain as I could tell him that we did not care-when I say we, I mean The ...